author: Mackay, C. C. J.

text:
    G. GORDON FRANCISCO, ROSE A. FRANCISCO, HIS WIFE, A. VINCENT FRANCISCO, AN INFANT, WHO SUES BY G. GORDON FRANCISCO, HIS NEXT FRIEND, PLAINTIFFS, v. COCA COLA BOTTLING COMPANY OF NEW YORK, INCORPORATED, AND GEORGE WEISS, DEFENDANTS.
    Decided March 11, 1932.

      For the plaintiffs, John G. Grimshaw and Frank G. Turner.

    For the defendants, Stein, McGlynn «£• Hannoch (by Edward R. McGlynn).

   Mackay, C. C. J.

Plaintiffs in this case sought to recover compensation from the defendants because of an accident occurring July 5th, 1930, about nine-fifty A. M., at the intersection of Neptune Highway and Asbury avenue in Neptune township.

The questions put to the jury, which were disputed questions of fact, were: (1) whether or not the defendants were guilty of negligence, and (2) if guilty of negligence whether the plaintiff G. Gordon Francisco was guilty of contributory negligence.

The plaintiff Eose A. Francisco was awarded $15,000 and of this the plaintiff does not complain. The jury found a verdict of no cause for action as to G. Gordon Francisco, and a verdict of $250 for the son, A. Vincent Francisco. Plaintiffs, G. Gordon Francisco and A. Vincent Francisco have a rule and it is contended that new trials should be had because the verdict of no cause for action against G. Gordon Francisco was against the weight of the evidence and because the damages awarded to A. Vincent Francisco, the son, were inadequate.

Taking up, first, the case of G. Gordon Francisco the jury could believe from the conflicting testimony that G. Gordon Francisco, who was driving the car in question, was going south on Neptune Highway and was about fifty to eighty feet from the traffic light when it was red. As he neared the intersection he changed gears, halted his car and really came to a stop. The light had then turned green and he changed gears to second, put his hand out and went ahead. He looked into the glass and saw people in back of him and before making the left-hand turn into Asbury avenue he made observations and saw a truck one hundred and fifty to two hundred feet away. It was a bright, clear, sunshiny day with a good view and no curves in the road. Prom the time plaintiff first saw the truck until the accident happened, he traveled anywhere from fifty to seventy feet and said he blew his horn prior to making the turn. It appears that this is a very wide intersection and the left-hand turn, taking a southeasterly course, was made almost directly at the traffic light which is in the center of the highway. Witnesses for plaintiff testified that they heard a crash and saw the truck out near the center of the highway pushing the Ptanciscocar toward the curb. One witness said that the car and truck never moved after they came in contact with each other. There is testimony that the plaintiff’s car started from away over on the right side of the road to make the left turn and there is other testimony that it was nearer the center. None of the witnesses appeared to know the speed of the defendant’s truck except one witness who caught a glimpse of it as he was sitting in his office and he said that he thought it was going about thirty miles an hour. The testimony of the plaintiff as to the speed he was traveling prior to and at the time he was making the turn, is ten to fifteen miles an hour. His father-in-law, Mr. O’Brien, said he was turning at a speed of about eighteen miles an hour. Mr. O’Brien also-stated that he took his eyes off the plaintiff after he had passed the suspension or traffic light and had a view of one-hundred and fifty to one hundred and seventy-five feet and saw nothing within one hundred and seventy-five feet. If that last statement is true it is difficult to understand how there could have been an accident.

The defendant’s driver said he was traveling north on Neptune Highway in a three and a half or four-ton Coca Cola truck and that for a distance of one to two blocks from As-bury avenue the road is straight; that he was driving about fifteen to eighteen miles an hour near the right-hand curb; that rhe traffic light at Neptune Highway and Asbury avenue was green as he was approaching and when he got under the traffic light the plaintiff’s car made a sudden left turn; that no horn was blown and no hand was out; that the truck was then about fifteen feet away from the plaintiff’s car and that he (truck driver) applied his brakes and swung the track to the right and the accident happened. The helper on the truck testified that the truck went under the light or near the light, and about fifteen feet away when the plaintiff’s car made a sudden left turn into the path of defendant’s truck; that the truck made a full right swing to avoid the accident and that both cars stopped almost immediately.

From this conflicting testimony I am inclined to believe that it was peculiarly a question of fact for the jury. I am not relying on the testimony of defendant’s driver alone, but if the testimony of Mr. O’Brien, a relative who was interested in the case, is true or partly true, the plaintiff was making the turn at a speed of eighteen miles an hour, which is a fast rate of speed in which to make a left-hand turn and would be a violation of the Traffic act, which, while not standing •alone as evidence of negligence, nevertheless can be considered by the jury in determining whether or not there was negligence under all of the circumstances of the case.

Then, too, if what the real estate agent said relative to the place where the accident happened is true, it could very well be and the jury would have a perfect right to believe that the accident happened out near the center of the highway at the time plaintiff made a sudden left-hand turn, and the truck by swinging right and coming in contact with plaintiff’s car, could do nothing but push it some distance.

I might say that I have gone over the testimony carefully on two different occasions and it seems to me the testimony is in conflict to such an extent that it was for the jury to say whether or not the plaintiff was guilty of contributory negligence.

In the case of Stefanacci et al. v. Bordens Farm Products Co., 125 Atl. Rep. 129; 100 N. J. L. 160, it appears that the ^plaintiffs were driving north on the easterly side of River Drive, and the defendant’s team was being driven by its employe in a southerly direction on the westerly side of the same street. On the west side of River Drive are located the rails of an electric railway and when the railway track reaches-Gregory avenue it turns eastward across River Drive and into that avenue. The defendant’s truck was proceeding in the rails, and, reaching Gregory avenue, turned rapidly and without warning to the east. When it reached the easterly side of River Drive it collided with the plaintiff’s automobile, striking it on the left side and injuring its occupants. It-was held:

“Evidence that defendant’s truck, while proceeding on-street in an opposite direction from plaintiffs, turned rapidly and without, warning, colliding with plaintiff’s automobile, striking it on the left side and injuring its occupants, was sufficient evidence of negligence to justify denial of nonsuit.”' Stefanacci et al. v. Bordens Farm Products Co., supra.

“Where the existence of negligence depends upon the conclusion to be reached from a variety of circumstances, considered in their relation to and their reaction upon each other, the jury, and not the court, is normally the tribunal to draw such conclusion.” Sutton v. Bell, 77 Atl. Rep. 42; 79 N. J. L. 507. See, also, Hann v. Salem & Pennsgrove Traction Co., 109 Atl. Rep. 509; 94 N. J. L. 162.

In the case of Maurer v. Simon, 133 Atl. Rep. 79, the court said: “The suit arises out of a collision between two automobiles in the city of Passaic. Each party claimed that the other was in fault,, and both parties claimed damages. The plaintiff was driving his car northerly on Main street, and undertook to turn to his left into Oak street. The defendant going south on Main street struck the plaintiff’s car as it was-turning and forced it up against a telegraph pole on the south side of Oak street. Plaintiff sued for damages. At the trial the plaintiff was nonsuited for failing to prove the amount of his damages. This nonsuit was probably erroneous, because of the well-settled rule that mere failure to> prove substantial damages is not a ground of nonsuit, the-claimant being entitled, at least, to a nominal verdict.” The point decided in this case is not the same as that in the case at bar, nevertheless the court clearly said on the facts in this case it was a jury question. That would mean all negligence and contributory negligence.

I have read the cases cited by the plaintiffs. The case of Wingert v. Cohill, 110 Atl. Rep. 857, was not exactly in point because of the fact that the defendant in this case turned into an intersecting road and the plaintiff, who was in the rear of defendant’s ear, struck a culvert in his attempt to avoid the first driver. It was claimed that the defendant had not put out her hand as notice to the car following that she intended to make the turn.

In the case of Estabrook v. Main, 147 Atl. Rep. 822, the court held that it was clearly a jury question and that the verdict as rendered was justified.

In the case of Wilson v. Kuhn, 130 Atl. Rep. 468, there was evidence that defendant’s automobile was going fifty miles an hour and it was held that that speed alone warranted to finding of a verdict. There is no evidence of excessive speed in the Francisco case.

Assuming that the view had by Mr. Gilbert in his office, two hundred feet away from the scene of the accident, that defendant’s truck was traveling thirty miles an hour, that would not be an excessive speed in the open country. There was nothing to show that that speed continued. On the contrary, there was testimony on the part of defendants, uncontradicted, as to the speed just prior to the accident.

The case of Elgin Dairy Co. v. Shepherd, 108 N. E. Rep. 234, cited by plaintiff, would be more helpful to the defendant than to the plaintiff because it there holds:

“Where a motorcycle rider, on entering an intersection of streets, saw a motor truck approaching on the right side of the street and there was nothing to suggest a change in the course of the truck, the rider need not anticipate any change in its course, but could act on the assumption that the truck driver would continue on the right side of the street, as required by municipal ordinance.”

That is just what the defendant contended in the case at bar, that is to say, that the truck driver assumed that the ■plaintiff was going to continue on his course and drive south along Neptune Highway. Defendant says further that plaintiff made the sudden left turn when he (defendant) was fifteen feet away. While this evidence cannot be taken as true and there is other evidence to the contrary, nevertheless, it is not for me to say whether it is true or false, but for the jury.

In the case of Day et al. v. Beyer, 139 Atl. Rep. 317, it appeared that plaintiff was proceeding on his motorcycle west on South Orange avenue in South Orange, and the defendant proceeding east with his automobile on the same street. As they neared Wyoming avenue, which intersects but does not cross South Orange ayenue, defendant attempted to turn north to his left into Wyoming avenue in face of the motorcycle, passing from behind another car preceding him for the purpose. Plaintiff then attempted to turn to his own right to avoid the collision. The court said:

“Whether motorist in making left-hand turn at street intersection, resulting in collision with motorcyclist approaching from opposite direction, used proper care and sought opportune time, held for jury.

“Motorist intending to make left-hand turn at street intersection and cross line of traffic was obliged to use great care and seek an opportune time.” Day et al. v. Beyer, 139 Atl. Rep. 317.

In the case of Rogoza v. Mahoney, 136 Atl. Rep. 196, it was held:

“Weight of evidence is determinable, not alone by number of witnesses testifying, but by credence the jury, in view of all circumstances, attributes to their testimony.”

I realize that plaintiffs’ injuries were very serious but I am bound to determine this matter from the testimony as presented by the various witnesses in the case, and I cannot reach the conclusion that the verdict is so against the weight of the evidence as to permit a new trial.

In recent months we have had juries who would listen carefully to the evidence and the charge of the court and have endeavored to render decisions that would be fair and proper. Of course, they have made mistakes as all human beings do, but on the whole the verdicts have been very satisfactory. I cannot say that the jury was prejudiced in this case, otherwise they would not have given Mrs. Francisco a verdict for $15,000.

The rule to show cause as to G. Gordon Francisco will be discharged.

Concerning the case of A. Vincent Francisco, I can readily understand why the verdict was rendered for $250. Counsel for plaintiffs paid very little attention, in so far as the evidence appears, to the boy’s injuries. There is a statement in the brief of plaintiffs in behalf of the boy that the only testimony concerning his injuries is to be found on page 178 of the transcript of testimony. As a matter of fact, testimony will be found on pages 62 and 63 as well. On page 62 we find that Dr. Albright testified that the boy had a fracture of the oleeronon process of the ulna. On page 63 the doctor further testified that on the right side there is a little tip of bone uniting the bone in the forearm which was broken off. The boy was in the hospital five days, his arm was placed in a splint and he was allowed to go home. This piece of bone was in the elbow. On page 178 we find that on November 14th, which was about four months after the accident, the doctor said: “On that day I considered the child recovered. He had a condition in his right elbow, a possible sprain, fracture we call it, might have been, and a laceration of that elbow that left a small scar. He had another one on the left side of his scalp that left a small scar and he had some body bruises that were minor in character.” There was nothing to be seen on November 14th, 1930, except the scar on the elbow. Whether there was a fracture of this tip or a possible sprain, it is difficult to say because the doctor used the words above mentioned as if it might have been a sprain but that the medical men called it a fracture. In any event, there is no testimony to show when he was cured. As a matter of fact, he was only at the hospital for five days and the arm was put in splints. There was no cast put on the arm and nothing to indicate that there was anything there of a serious nature, and while it may be that he suffered some pain, nevertheless the testimony is barren of any such statement. However, I presume if I have a right to consider it a possible sprain, I would also have a right to call it a slight fracture. It may be too, that $250 was less than he should have received at the hands- of the jury in view of the fact that the jury determined he was entitled to a verdict. I can easily understand that the jury did not give it a great deal of consideration and was not warranted in doing so from the testimony adduced. However, I am going to give the plaintiff the benefit of the doubt in this matter and will increase the verdict of A. Yincent Francisco to $600, which defendant will have twenty days to accept after notice of filing of this memorandum, by filing a consent thereto with the clerk of the Supreme Court, in which case the rule will be discharged, otherwise a new trial may be had as to A. Yincent Francisco on the question of damages only.

On examination of a number of eases cited by plaintiffs’ counsel relative to verdicts received for fracture of the arm, I find they are not in point because the injuries in the cases I looked at are not only serious fractures, but include other injuries.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LOUIS HANOVER, PETITIONER-RESPONDENT, v. PENNBROOK GOLF CLUB, RESPONDENT-PROSECUTOR.
    Argued January 20, 1932
    Decided March 16, 1932.
    Before Justices Trenchard, Daly and Donges.

      For the prosecutor, Holmwood & Creighton.

    For the respondent, Silber <& Silber.

   Per Curiam.

This writ of certiorari brings up for review the determination and judgment of the workmen’s compensation bureau, awarding compensation to the petitioner-defendant, Louis Hanover, and against the respondent-prosecutor, Pennbrook Cfolf Club, for injuries alleged to have been sustained by accident in the course of and arising out of his employment on Hovember 6th, 1930.

The first point made by the prosecutor is that the accident, did not arise out of and in the course of the defendant’s employment with the prosecutor.

The defendant worked for the prosecutor and his chief duty seems to have been to take care of the greens. There was a barn upon the premises, upon the first floor of which the golf club kept its tools. After finishing certain work on the greens, the defendant and other workmen wore directed to take their tools to the barn and put them away. Thus far there appears to be no dispute about the facts, and there is no dispute of the fact that, a short time after the defendant went into the barn he was hurt by a fall. The defendant gave three conflicting statements of the happening: (1) that as he was putting the tools away, a cross-beam fell on him and injured him; (2) that as he was climbing a ladder to get to the loft to sweep some hay away, he lost his balance and fell, and (3) that as he was clearing a space for the tools he attempted to climb a ladder to the loft and the ladder slipped and fell, throwing him to the floor of the barn and falling upon him.

Hone of these versions of the happening is supported by any evidence from any other person.

It appears beyond reasonable question from the testimony of the witnesses produced by the employer, that there was no movable ladder, and that the only ladder was a stationary ■one attached to the wall of the barn, which was in place after the accident. This ladder was the means of access to the loft,, which was located on the second floor and at one end of the barn, and in which hay was sometimes stored.

The witnesses for the prosecutor testified that Hanover-attempted to climb to the cupola of the barn, which was on the roof of the barn; that there were pigeons in the cupola; that to reach the cupola, Hanover climbed up the inside of' the barn above the loft; that he had removed his coat and hung it on a peg far above the loft, where it was found after the accident; that, there was no occasion for Hanover to go-above the first floor in the line of his work.

One of the prosecutor’s witnesses testified that he called tó Hanover to come down, but received no answer, and shortly thereafter he saw Hanover fall and hit a beam and then saw him fall to the floor.

From the testimony there can be no question that Hanover,, for his own purposes, was endeavoring to get to the cupola of the barn; and that he was not going there for any purpose-of his employer or in the performance of any duty that was related to his employment.

It seems clear that the accident did not arise in the course-of his employment. He had for the time abandoned his employment and was about his own affairs. Colucci v. Edison-Portland Cement Co., 94 N. J. L. 542.

Our conclusion renders it unnecessary to discuss the other-questions raised.

The judgment under review will be reversed and set aside,, with costs.


author: Boot, C. C. J.

text:
    WILLIAM L. BYER, PLAINTIFF, v. V. CLADD & SONS, DEFENDANT.
    Decided March 16, 1932.
    For the rule, Cole & Cola.

    Contra, Thompson <& Hanstein.

   Boot, C. C. J.

This is defendant’s rule to show cause why ■a verdict in favor of plaintiff should not be set aside.

Plaintiff says that he was driving his automobile toward Camden on the White Horse pike at a rate of thirty to thirty-five miles per hour; that he was following a truck which was exhibiting a red rear light; that, as he followed this truck there suddenly loomed up ahead of him an object with which he collided—a truck. This truck was admittedly parked on the side of the road, the left wheels from one and a half to two feet on the paved surface of the road, the two right wheels on the gravel or dirt shoulder. Plaintiff says he first saw this object (truck) when he was sixty, seventy or eight feet from it. There was no traffic coming in the opposite direction from that in which plaintiff was proceeding. There was ample room for plaintiff to pass to the left of the parked truck.

Plaintiff hit the left rear of the truck with force sufficient to demolish his Buick coupe—practically cutting it in halves. Plaintiff says he saw no rear red light on the truck.

I think that the fair inference from all the testimony is that the parked truck was the same vehicle which plaintiff had been following and that there was no other truck ahead of him and that the light plaintiff saw was the light of the parked truck which he had been following and which had admittedly stopped at the point of collision. However this may be, I am convinced that a verdict in favor of plaintiff is contrary to the evidence and so clearly so as to manifest either prejudice, passion or mistake on the part of the jury.

There were two grounds of negligence alleged in the complaint.

1. Failing to park in accordance with Traffic act.

2. Failure to have a lighted rear light in accordance with the Motor Vehicle act.

The truck driver and two helpers on the truck' testified that the rear light was lit before and after the collision. A driver of a motor bus who came up very shortly after the collision was attracted to the scene by seeing the burning rear light ahead of him. A garageman who came up a little later saw the light lit and a trooper who came up still later found it lit. All of this positive testimony against plaintiff’s more or less negative statement that he did not see the light.

It, is argued by plaintiff that, even if the jury was justified in finding that the tail light was lit, that it was, nevertheless, also justified in finding that the light was an antiquated affair and was not properly placed so as to render the numerals thereon visible for “at least fifty feet,” &c., as provided by the statute. The difficulty with this argument is that the allegations of the complaint were not broad enough to justify the court in submitting the case to the jury on this theory of negligence and it was not so submitted, and if the jury based its findings on any such theory the verdict- must be set aside.

With reference to the question as to whether the truck was parked “off the traveled portion of the highway as far as practicable.” It may be that minds of reasonable men would differ on this point and, therefore, the court would not be justified in permitting its view of the evidence to control. However this may be, it would seem to me to be quite apparent that, plaintiff was guilty of contributory negligence. As has been said, the only evidence that the rear light, was not lit was the testimony of plaintiff, mostly negative, and the greater weight of the evidence was that it was lit,. Plaintiff had his head lights burning and saw the truck, he says not until he was sixty, seventy or eighty feet away from it and then collided with terrific force, swerved a little left practically at the moment of impact. He says he was driving at thirty to thirty-five miles an hour. If that was his speed (the evidence justifies a finding of a much faster rate) plaintiff certainly never varied it in the space of time allotted to him and seems to have done nothing except to make a belated turn to his left. The trooper testified that plaintiff, after the collision, said that he was “drowsy.” This may be an explanation of the happening but not an excuse therefor.

Taking the whole ease, it seems quite apparent to me that the jury was swayed by sympathy for the plaintiff rather than by the evidence and that a new trial should be granted. Such will be the order.


author: Hartshorne, J.

text:
    Esses County Court of Oyer and Terminer.
    STATE OF NEW JERSEY v. OSCAR ARNOLD LARSON.
    Decided February 5, 1932.
    Eor the state, Joseph L. Smith, prosecutor (Joseph B. G onion).

    Eor the defendant, Biro & Strell.

   Hartshorne, J.

This defendant was indicted for violation of the rules and regulations of the state aviation commission. He moves to quash, on the ground, among others, that the State Aviation act (Pamph. L. 1931, ch. 190, p. 475), creating the state aviation commission and purporting to control the entire conduct of intrastate aviation, is unconstitutional.

The other objections may be shortly disposed of. The objection that the indictment is insufficient for uncertainty and similar technical defects may be dismissed since, under well settled practice, a bill of particulars may be demanded. The objection that the State of New Jersey is improperly a party to the indictment is based upon the provision in the act, section 9, that “prosecution therefor [a violation of the act] may be instituted in the name of the commission or the director either by the attorney-general or by the prosecutor of the pleas in and for the county in which the offense is alleged to have been -committed, when so directed by the attorney-general.” The indictment in question does not accord with the above method of procedure. But the above method is permissive not mandatory. Its obvious purpose is to give to the state aviation commission, as the body most interested in the enforcement of the act, the power to enforce it on its own initiative. This in no way prevents the use of the usual methods of enforcement through grand jury proceedings. The indictment in question is properly found in the usual form.

We now pass to the important objection leveled at the indictment, i. e., the unconstitutionality of the State Aviation act.

As above stated, the indictment charges the violation of the rules and regulations of the commission. In section 1 of the act its “purpose” is set forth. Assuming for the sake of argument that this is more than a mere preamble, this purpose is stated to be (1) “for the regulation of air craft in and over this state;” (2) “to require that [such] aircraft * * * shall conform in respect to design, construction, and air-worthiness, to the standards prescribed by the United States government,” and (3) “to require the licensing of aircraft and airmen.” Clearly such provisions fix no standard whatever, even of the most general nature, either for the regulation of aircraft or the licensing of aircraft or airmen. They state a standard only for the physical character of aircraft, such standard to be that fixed by the federal government.

The only further provisions in that, regard are those found in section 7 of the act, which provides that the commission “may establish and revise from time to time air traffic rules for the navigation, protection and identification of aircraft,, which shall conform to and coincide with, in so far as practicable, the [federal] Air Commerce act of one thousand nine hundred and twenty-six and all acts amendatory thereof and supplementary thereto and not inconsistent with the provisions of this act. It may establish standards of airworthiness for aircraft,” to accord with such federal act. “It may encourage and effect, in so far as practicable, uniform field rules for airports.” By section 9 of the act it is provided that “any person who violates any of the provisions of this act or any rule or regulation thereunder shall be guilty of a misdemeanor.”

It is clear from ail the above provisions that as to the “navigation, protection, and identification of aircraft” and their “air-worthiness,” the only standard fixed by the legislature is that of the federal act, and that no standard of any nature whatever is fixed for the “uniform field rules for airports.” As to these latter, the act itself would support any uniform regulation whatever, no matter how absurd or unjust, which the commission might adopt in their sole discretion.

The substantial question therefore is, whether the Hew Jersey legislature is permitted by the constitution of this state and that of the United States, to convict a person of a crime, when it has fixed no standard of conduct to be conformed to by the citizen, but has left that standard to be fixed by the regulations of a subordinate administrative authority, either in its untrammeled discretion, or to conform substantially to the legislation of another sovereignty, such legislation being referred to in the act, but not incorporated-therein.

Our form of government, both federal and state, is based upon the fundamental concept of the separation of the powers, legislative, executive, and judicial. Each of these three branches can exercise its own power only. This is expressly set forth in our state constitution, which provides that “the legislative power shall be vested in a senate and generab assembly.” Article 4, section 1, subsection 1. The only exception to this is in the case of municipal corporations,' which from time immemorial have been authorized to exercise legislative functions- at common law, such common law rule and historical fact, being deemed a condition implied in the constitution. Otherwise, however, no legislative function can be delegated by our senate and general assembly.

But, while the establishment of principles or standards of conduct is the essential function of the law-making body, which cannot be delegated, the application of those principles or standards, to facts as they arise, and the determination as to whether or not those facts exist, is a function of law enforcement, which can, therefore, be delegated to an administrative body. This distinction is well brought out in the leading case of Field v. Clark, 143 U. S. 649, where the court says, “the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” See further the comparatively recent case of Hampton & Co. v. United States, 276 U. S. 394, which collates the authorities generally in this regard. Accordingly, congress in exercising legislative control over interstate carriers by the fixing of general principles can yet delegate fact finding and law enforcing, i. e., rate-making, power, to the interstate commerce commission. Interstate Commerce Commission v. Illinois Central Railroad, 215 U. S. 452. So again the State of Hew Jersey can delegate rate-making power to the state public utility commission. West Jersey and Seashore Railroad v. Public Utilities Commission, 87 N. J. L. 170. A delegation of power over transportation by air can, of course, be made similar to that over transportation by land or water.

But this is exactly what the State Aviation act fails to do. As seen above, it fixes no criterion whatever to be adhered to by the state aviation commission in establishing its regulations for “uniform field rules.” In authorizing such regulations it therefore violates the fundamental concept of our constitutional law as to the separation of the powers. It may well violate also the due process clause of the fourteenth amendment to the federal constitution, since it creates a crime, without setting up any ascertainable standard of conduct for the citizens to conform to. United States v. Cohen Grocery Co., 255 U. S. 81.

Finally, as to any regulations of the commission, "for the navigation, protection, and identification of aircraft,” and to "establish standards of air-worthiness for aircraft,” the standard fixed is that of the Federal Air Commerce act of 1926, its amendments and supplements. It may well be a sound exercise of legislative discretion to have the regulations for the conduct of a matter, so oblivious of artificial land boundaries as aviation, substantially identic for both intrastate and interstate commerce. Nor is there anything unconstitutional in the state’s adopting as its own the federal policy. The converse has been repeatedly sustained. Clark Co. v. Western Maryland Railroad, 242 U. S. 311.

But that is not the point. The point is whether the method adopted by the legislature to achieve this purpose conforms to constitutional mandates. Had the legislature incorporated in the state act the desired provisions of the federal act in the above regard, it might well be that it would have sufficiently fixed a standard to which an administrative commission could adhere in finding facts and enforcing regulations. Such was apparently done in the Ohio Aviation act referred to in the recent case of Swetland v. Curtiss Airports Corp., 41 Fed. Rep. (2) 929, 940 (reversed on another ground December 30th, 1931, opinion not yet reported). But that the legislature of this state has not done. It has attempted to make applicable to the state act the existing federal act, without inserting the appropriate provisions in the state act. This at once raises the question whether it, has not violated the provision of the New Jersey constitution that "no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of the act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting it in such act.” Article 4, .section 7, subsection (4). This provision was incorporated in the constitution to avoid misunderstanding, if not fraud, in enacting legislation.

But this provision does not require in each and every instance that an act referred to should he incorporated in full in the new act. The true construction of such constitutional provision has been settled by the court of this state to be that “if the expressions in the given act of reference to antecedent laws may be struck out or eliminated without altering or impairing the effect of the law in which they are found, such references are harmless and can possess no invaldidating force.” Stale v. Hancock, 54 N. J. L. 393; 24 Atl. Rep. 726; Campbell v. Board of Pharmacy, 45 N. J. L. 241; affirmed, 47 Id. 347.

Applying this rule, if we strike out from the State Aviation act its reference to the federal act, we at once find ourselves with an attempted delegation of power to an administrative body, but without any standard of guidance whatsoever fixed for that administrative body, by the legislature. The State Aviation act thereupon violates the fundamental constitutional concept referred to above.

While the court will indulge every reasonable intendment in favor of the constitutionality of an act of the legislature, it is without, authority to declare valid a legislative provision which so clearly violates the constitutional mandate as does the State Aviation act. Of course, the severability provision of the act in section 14 may limit the effect of its above invalidity.

Counsel will submit an order accordingly.


author: Siegleb, J.

text:
    Essex County Juvenile and Domestic Relations Court.
    MOLLIE ROSE, COMPLAINANT, v. JOSEPH ROSE, DEFENDANT.
    Decided February 15, 1932.
    Before Joseph Siegleb, judge.
    For the complainant, Samuel Samuelson.

    For the defendant, Wolber, Gilhooly ■& Yauch (by Edward ■J. Gilhooly).

   Siegleb, J.

This is an action brought by Mollie Bose, complainant, against her husband, Joseph Bose, the defendant,, for separate support and maintenance, under the Juvenile and Domestic Belations Court act (Bevision of 1929), chapter 159 of the laws of 1929, alleging specifically in the complaint that the defendant did abandon and was neglectful of his wife by failing to sufficiently and regularly support said wife for over a period of two years, creating disturbances in the home and using extreme vile language.

Complainant and defendant were married on July 26th, 1929, the defendant at that time being a widower, with two children living with him at his home in Nutley. Complainant was a widow and had brought with her to the home of her new husband a son, about fifteen years of age. After her marriage to the defendant she assumed her place as his wife in the home, where his two children resided there with him.

Tlie parties lived together in comparative happiness until sometime early in 1931, when trouble and quarrels arose which, according to the evidence, was largely due to money matters, and the method the wife wanted to employ in the purchase of supplies, clothing and other necessities in the home. At that time, and up until the time when the complainant left the home of the defendant, she was given charge accounts with various merchants in the vicinity of their home without any limitation, and that from time to time had access to the cash register for small sums of money which she would require from day to day for the maintenance of herself and family.

The arrangement which the defendant had provided for his family is that he had pledged his credit at several stores at which she could buy such food and clothing as she saw fit. In addition to that, he made some small purchases for his wife and children, and paid all the necessary expenses for fuel and light, and other incidentals that were necessary for the proper operation and management of the home.

The defendant is a man who, according to the evidence, started as a small merchant some seventeen years ago and built his business to quite substantial proportions, so that in March, 1931, according to his financial statement given to the Franklin ^National Bank of FTutley, he had a net worth of $64,898.96. This was primarily represented by real estate. A large portion of it was undeveloped land; some savings in building and loan shares, and the other portion in merchandise used in the current operation of his hardware store.

From the very beginning of this marriage his wife received no cash weekly allowance to continue the management of his household. Under the arrangement which the defendant adopted and carried out, of paying for what he required in the home and placing his credit at the disposal of his wife, and there appears to be no dissatisfaction of the complainant of this arrangement, for she continued to live by this method, and, from the overwhelming testimony in the case, ran a very nice home in that it was well furnished and always sufficient food at hand for the family and such guests as came to the house from time to time.

There is some testimony on behalf of the complainant which indicates that there were many quarrels concerning money matters, the use of vile language back and forth, but no creditable testimony which in the slightest degree indicated that the husband ever threatened his wife with physical violence or placed her life and limb in jeopardy or so conducted himself that the wife had reasonable grounds to fear for her life or limb.

In addition to what was available to the wife through the pledge of the husband’s credit, he presented her with a fur coat which cost him $285 and a diamond ring which cost $487.50, paid for five shares in the Yantieaw Building and Loan Association, and other articles which he furnished of his own volition, all of which indicates that while he might have been financially capable of doing more, it was a reasonable discharge of his duties in that respect to his wife and family.

On March 27th, 1930, the complainant voluntarily joined in a deed of conveyance of real estate to a corporation of which the husband was the chief stockholder, known as the Estates Realty Corporation. Ho complaint or dissatisfaction was expressed by the complainant to her husband, and, according to the evidence, in fact to anyone else, until October 21st, 1931, when she instituted suit in the Court of Chancery of Hew Jersey praying for the setting aside of the conveyance on the ground of fraud and the reinstatement of whatever rights she had of inchoate dower in the said premises.

From this time the feeling between this couple became more intense, the quarrels more frequent, and the dissatisfaction more pronounced.

The defendant indicated his desire to reconvey this property back where it was at the time of the marriage, and only because of a large demand of counsel fees on behalf of the complainant did this reconveyance fail of execution. It is clear, and I am satisfied, that the defendant was willing to reconvey the property so that the inchoate right of dower which existed prior to conveyance would be reinstated but for defendant’s unwillingness to pay the counsel fee.

The wife continued to live with her husband under the same roof notwithstanding the pending of this suit in the Court of Chancery, but expressed complaint about her health being impaired, which appeared to be the culmination primarily of monetary dissatisfaction in the home.

Finally, on December 29th, 1931, after a quarrel with her husband, the complainant, while walking on the street, collapsed, and was thereafter removed to a friend’s house in Newark. She then returned home the next day, where she stayed until January 2d. 1932, when she decided to leave the home to go to a Mrs. Thiele on Broad street, Newark, and has remained there, and has refused to come back to her home.

The defendant visited her on January 2d, 1932, and in an informal way advised her to come home, promised to care for her, and then, again, during the pendency of this trial, visited her in Newark and implored her to return to her home, and that he would take care of her, all of which she refused to accept only upon the following conditions: (1) that the defendant would give her a definite alowance, and, (2) that the defendant would reconvey all of the property formerly conveyed to the Estates corporation in which deeds she had joined.

The doctors who examined and treated the complainant from time to time, and up to the institution of this action, found her to be in good health excepting that she was very nervous, and that a little rest in some country place would soon bring her back to her usual vigor and strength. There was some testimony regarding an attempt at an abortion. No credence can be placed on this because there is no reliable evidence that an abortion was committed or that the complainant was pregnant.

The complainant, to succeed in her action, must establish legal justification for leaving her husband which would entitle her to separate support and maintenance.

The briefs of counsel rely upon the same cases for the establishment of their contentions. It resolves itself to an application of the facts to the rule of law well established by these cases.

In Tayor v. Taylor, the leading case on this subject, the Court, of Errors and Appeals, in 73 N. J. Eq. 745; 70 Atl. Rep. 323 (at p. 325), said: “The rule of this state may be considered settled as follows: that to justify a wife in separating herself from her husband, physical violence need not be proved, but such conduct of the husband must be shown as will reasonably convince the court that, her life or health was in danger, or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife; or that, the conduct of the husband, if continued, would have brought about these conditions.” This rule has also been followed in McGuiness v. McGuiness (Court of Errors and Appeals), 107 N. J. Eq. 614; 153 Atl. Rep. 503.

The first question, therefore, that it becomes the duty of this court to determine is whether or not the separation of the complainant from her husband was justified according to the standard of the decisions to which I have just referred; whether the treatment, of her husband was the cause of that separation; and, if so, if that treatment amounted to extreme cruelty within the meaning that has been attributed to it by the cases to which I have referred.

It is clear that the alleged wretchedness and discomfort upon which the complainant relies for her justification in leaving her husband, if such a condition existed, was not the result of any matrimonial breach by the defendant of his obligations as a husband, but were merely based upon dissatisfaction and discomfort that arose out of monetary matters, such as a failure of the husband to give his wife a money allowance and a refusal to reconvey the property in the Estates corporation.

The separation was due, it now appears, not to her fear for personal safety, but to her desire to obtain a regular allowance and a reconveyance of the property; the latter is the reason; the former the excuse.

I find that the treatment of the defendant, of his wife was not the cause of the separation, and that the treatment did no amount to extreme cruelty within the meaning that has been laid down by the cases on the subject,.

On the question of whether or not the husband has discretion as to the manner and style in which they shall live, the case of Pattberg v. Pattberg, 94 N. J. Eq. 715; 120 Atl. Rep. 790, in my opinion is dispositive of the point raised. In that case Vice-Chancellor Bentley, dealing with a very similar question (at p. 791), says: “The single question involved relates to his right, to support his wife in this fashion, rather than to give her a regular allowance to meet the expenses of her household. * * * It will have been observed that the husband has deserted his wife; that is, he has separated himself from her without any justifiable cause. While he remained with her and was guilty of no matrimonial offense, his discretion was almost unbounded as to the manner and style in which they should live. While it is true that a husband must support his family according to his station in life, it is also true that while he remains a member of the family partnership and the head thereof, a wide latitude of discretion must, be allowed him as to how much of his income it is advisable to spend and how much should be retained for the purpose of establishing a competence for the future. Furthermore, he is entitled, to a large extent, to dictate the manner in which said funds shall be spent [italics mine]; but when he separates himself from his wife in a case like the present one without any justifiable cause, he becomes a wrong-doer, and I do not understand that he can wrong his wife and then continue to exercise the same degree of control over her that is vested in an innocent husband who is living with his family and seeking to do the best for them.”

So, applying this statement of law to the facts in the case at bar, the defendant here is not, guilty of any matrimonial offense. His discretion was almost unbounded as to the manner and style in which they should live. If that was his right, and his wife refused to accept this method in the care and maintenance of the family, and thereby leaves her husband, she becomes the deserter, and not the husband, and, carrying this to its logical conclusion, if because of that refusal by the husband she becomes dissatisfied and uncomfortable and even wretched she has no legal cause for complaint.

In my judgment, the complainant has not, by the proofs introduced by her, brought herself within either of the tests referred to, and therefore the petition for relief must be dismissed.

Upon her application under the Poor act, the proof does not show that she is destitute or liable to become a charge upon the public. The husband offers her a home, care and support, if she will return to it. So long as that offer is open, the husband is chargeable with his wife’s maintenance. If she returns, it is his duty to accept her and care for her in the 'present posture of the case. The prayer for relief on this application is not established, and therefore the petition is dismissed with regard to that relief.

There will be a judgment of dismissal of the whole petition.


author: Bebby, Y. C.

text:
    Joseph Patrisco, complainant, v. Nolan's Point Amusement Company, a New Jersey corporation, defendant.
    [Decided March 7th, 1932.]

      Messrs. King & Vogt, for the exceptants

      Mr. Max L. Rosenstein, for the receiver.
   Bebby, Y. C.

The insolvency receiver of the defendant corporation filed a petition challenging the validity of a chattel mortgage of the defendant company, dated July 14th, 1928, given to John J. Carberry, William J. Bassett and Albert B. Williams to secure them as accommodation endorsers on company notes and renewals thereof to an amount not exceeding $35,000. The matter was referred to a master who took testimony and reported that the mortgage was void on the ground that the mortgagee’s affidavit was defective; that the security had been released by acts of the parties, and that the liability which was intended to be secured had not, in fact, been incurred by the mortgagee endorsers.

Numerous exceptions have been filed by the mortgagees or their successors, most of which are argumentative in character, but which may be shortly stated as follows:

1. An exception to the finding that on July 14th, 1928, the date of the chattel mortgage, there was due to the complainant on his judgment the sum of $1,103.90. The evidence shows that the judgment was not entered until February 26th, 1931. Exception sustained.

2. An exception to the finding that the defendant company had outstanding liabilities other than the notes in question, on July 14th, 1928, amounting to $1,710.10. It is claimed that most of these accounts were paid and the unpaid items were in dispute. It is unnecessary to consider this exception, as the importance of the finding is not apparent. Clearly the company was not insolvent at the time the mortgage was executed.

3. An exception to the finding that the assumption by the endorsers of the company’s liability on notes to the extent of $43,815.83 was not a payment of the liability contemplated by the mortgage and which it was given to secure. The facts are that company notes to an amount in excess of $43,000 bearing endorsements of the original mortgagees or their successors were called by the banks. Some small amount was paid on account by the endorsers and individual notes substituted for company notes which were surrendered by the banks to the endorsers. The argument in support of the master’s report is that this constituted a payment and cancellation of the company obligations, but that actual liability by the endorsers has not yet been incurred because the individual notes which were substituted for the company’s notes have not been paid. I am unable to follow this argument. The company notes were paid, but by the endorsers, and this being so, it is difficult to understand why the contemplated liability lias not been incurred. Had these endorsers discounted their individual notes at other banks and with the proceeds thereof paid the company notes, there could have been no question but that the liability had been incurred. That they discounted their individual notes at the banks which held the company notes does not alter the situation. The liability was incurred as effectually in the one case as the other and as effectually as it would have been had they paid the company notes in cash out of their individual pockets. The important point is that the company liability to the hanks was canceled, and the individual liability of the endorsers assumed by them. Exception sustained. What I have said here disposes of the seventh exception also.

4. An exception to the finding that the affidavit of the mortgagees attached to the chattel mortgage is legally insufficient. This exception presents the real question here involved and the only one about which I have had any difficulty. It will be considered later.

5. Is dependent upon the fourth and will he disposed of accordingly.

6. An exception to the finding that the chattel mortgage has been released hv the mortgagees. There is no evidence of any relinquishment of the mortgage security. When the company notes were paid they were delivered to the mortgagees who have since held them as evidence of their claim against the defendant company. Exception sustained.

I. This exception is to the finding of the master that “it is questionable whether a chattel mortgage such as this can constitute a lien on buildings attached to and improvements made upoii the terrain of a freehold in which the mortgagor has only a lease for a term of years.” Kb such issue was presented by the pleadings and the master exceeded his authority in so reporting. Exception sustained.

8, 9. Are included in other exceptions and require no separate consideration.

This leads to a consideration of the fourth exception.

The condition of the mortgage recites that the mortgagees are endorsers of company notes dated and payable as follows:

December 9, 1927 Dover Trust Company ................ $10,000
May 25, 1928 Dover Trust Company ............... 2,000
December 5, 1927 National Union Bank ................ 10,000
March 30, 1928 National Union Bank ................ 1.000
April 10, 1928 National Union Bank ................ 1,000
April 24, 1928 National Union Bank ................ 1,500
May 7, 1928 National Union Bank 1,500
$27,000

And that the mortgage is given to secure the liability of the endorsers on these notes or any renewals thereof and on any additional or other notes and renewals thereof not exceeding in the aggregate $35,000. The affidavit annexed to the mortgage reads as follows:

“State of New Jersey, County of Morris, ss.
John J. Carberry, William J. Bassett and Albert R. Williams being duly sworn on their oaths, say that they are the holders of the foregoing mortgage, and that the true consideration of said mortgage is such an amount as the deponents may be compelled to pay as accommodation endorsers of certain promissory notes made and given and to be made and given by Nolan’s Point Amusement Company to the National Union Bank and the Dover Trust Company to secure loans from said banks and the iiroeeeds of the discount of which notes are to be credited to the account to the Nolan’s Point Amusement Company and said mortgage is made and given to secure these deponents against any liability or obligation assumed by them by reason of their said endorsements of notes made for the benefit for the said Nolan’s Point Amusement Company and discounted or to be discounted by National Union Bank or Dover Trust Company; the amount due and to grow due on said mortgage in such sum not exceeding thirty-five thousand dollars ($35,000.00) for principal and interest, costs, charges and expenses as said deponents may be compelled to pay by reason of said accommodation endorsements of said notes for the benefit of Nolan’s Point Amusement Company.
John J. Carberry
William J. Bassett
Albert R. Williams.
Subscribed and sworn to before me this 14th day of July, 1928.
Lyman M. Smith,
Master in Chancery of N. J."

The proofs taken before the master show that the Dover Trust Company held no note of December 9th, 1927, for $10,000 and no company note dated May 25th, 1928, for $2,000; but that it held a company note of $10,000 dated' December 6th, 1927, discounted on December 9th, 1927, and a $2,000 note dated May 25th, 1928, made by Williams and Bassett, individually, discounted on that date and the proceeds of which were credited to the company’s account. The master found that the misstatement in the body of the mortgage concerning these two notes, assuming it to have become a part of the affidavit by reference, was false and therefore fatal; and that, if the affidavit did not refer to the mortgage the requirements of the statute respecting a statement of the consideration were not met, and that in either event the mortgage was void.

It may be conceded that the affidavit attached to this chattel mortgage, standing alone, would be legally insufficient, but the affidavit must be read with the mortgage. Fletcher v. Bonnet, 51 N. J. Eq. 615; Green v. McCrane, 55 N. J. Eq. 436; Hunt v. Ludwig, 93 N. J. Eq. 314; affirmed, 94 N. J. Eq. 158; Lessler v. Paterson National Bank, 97 N. J. Eq. 396; affirmed, 99 N. J. Eq. 428; Finkel v. Famous Lunch Room Co., 100 N. J. Eq. 85; Abeles v. Guelick, 101 N. J. Eq. 180; Sherman v. Union County Wholesale Tobacco and Candy Co., 108 N. J. Eq. 477; Metropolitan Store and Saloon Fixture Co. v. Albrecht, 70 N. J. Law 149.

It is true that in most of these cases there was a specific reference in the affidavit to the body of the mortgage itself, and upon that ground the court, held that the statements made in the body of the mortgage were incorporated in the affidavit, and became a part of it. But in Green v. McCrane, supra, Vice-Chancellor Grey said that where the affiant swears that he “is the mortgagee named in the foregoing mortgage,” that reference is sufficient, and that “no one can read the affidavit without being referred to the mortgage.” * * * “The affidavit and the chattel mortgage, when read together, sufficiently comply with the statutory requirements.” Where the bona jides of the transaction are not in question, slight, circumstances will justify a reading of the affidavit and the mortgage as one and the court should search diligently for a means to uphold the agreement of the parties. In Howell v. Stone & Downey, 75 N. J. Eq. 289, Judge Dill, speaking for the court of errors and appeals, said: "Prior to the decision of this court in American Soda Fountain Co. v. Stolzenbach, 76 N. J. Law 721, the statutory affidavit of consideration of a chattel mortgage had been construed by courts below as statutory requirement of considerable technicality,’ but in that case we squarely rejected that doctrine, holding that in the absence of fraud, instruments so common in the course of commercial transactions by laymen as chattel mortgages should be sustained whenever there is an honest and substantial compliance with the statute.” (Italics mine.) Here'the affidavit and the mortgage should be read together and so read there is an "honest and substantial compliance with the statute” unless the misstatement in the body of the mortgage respecting the notes discounted at the Dover Trust Company is fatal. In Hunt v. Ludwig, supra, Vice-Chancellor Backes said:

"The change in the judicial attitude regarding the statutory affidavit, that an honest and substantial compliance, rather than a technical adherence, is all that is required, * * * marked no relaxation of the rule established by the cases that the affidavit must truthfully state the consideration, and that a substantial deviation from the truth, however honestly made, will invalidate the mortgage as against creditors.”

■ # sj: # ❖ H« Hi Hi

"A true statement of the amount due or to grow due on the chattel mortgage is an essential requisite of the affidavit, and a substantial variance renders the mortgage void as against creditors.”

In Boice v. Conover, 54 N. J. Eq. 531, Vice-Chancellor Emery said that "the question is one of the construction of a statute which defines what the affidavit must contain and makes no exception or allowance for mistakes,” and in Bollschweiler v. Packer House Hotel Co., 83 N. J. Eq. 469; affirmed, 84 N. J. Eq. 502, the same Vice-Chancellor held a mortgage to be void for failure to state the whole consideration where the consideration was stated to be a loan, when, in fact, it was a loan and a contract.

Hunt v. Ludwig, supra, was affirmed by the court of errors and appeals by a divided court, and Mr. Justice Swayze, speaking for the majority, distinguished between "defects” in the statement of the consideration and "untrue” statements thereof. There the affidavit was false in that it overstated the amount of the consideration by $500; but here is no overstatement of the consideration and no attempt, mistaken or intentional, to secure more than the actual liability, or to suppress the true consideration. The recital of the notes is “defective,” rather than “untruthful.” The liability secured was an “accommodation” liability; that it was partly as maker and partly as endorser, instead of solely as endorser, does not render false an otherwise truthful statement of the consideration. “The word True’ in this connection, means that which is frank and actual, rather than that which is precise and technical.” Strong v. Gaskill, 53 N. J. Law 665; 59 Atl. Rep. 339. “The law does not require technical nicety.” Finkel v. Famous Lunch Room, Co., supra. “Ho intending creditor could be misled, * * * he would be put upon notice of the debt sufficiently to inform himself.” Dawson v. Pine, 6 N. J. Mis. R. 774. “An affidavit of consideration is not to be tested by the rules of pleading nor treated as a technical requirement. On the contrary, it should he the aim of the courts, when the mortgage is hona fide, to preserve, and not to destroy, and, as Sir Matthew Hale said, the courts should he astute to find means to make such instruments effectual, according to the honest intent of the parties.” (Italics mine.) Howell v. Stone & Downey, supra. “Criticisms directed to matters of artifice, rather than those of substance, ought not to prevail.” American Soda Fountain Co. v. Stolzenbach, supra. The statute should not be used as an instrument of inequity any more than of fraud. The hona fides of this transaction, as I have already said, cannot be questioned and the liability, to secure which the chattel mortgage was given, has undoubtedly been incurred.

As to the $10,000 note, the misrecital of the date may have been merely a clerical error. If the figure nine had been turned upside down the true date would have been shown, and, at any rate, December 9th was the date upon which the note was actually discounted. The fourth and fifth exceptions are sustained.

It is also argued by counsel for the receiver that the affidavit is defective in that it does not recite the consideration for the company notes which were discounted at the banks. The recital of the consideration for these notes was not necessary. Simpson v. Anderson (Court of Errors and Appeals), 75 N. J. Eq. 581.

It appears from the evidence before the master that some time after the chattel mortgage was executed Carberry severed his connection with the company and his place' in the organization was taken by others, who assumed his liability. Car-berry’s successors in liability are entitled to his security by right of subrogation, if not otherwise. That Carberry did not assign his interest in the mortgage is immaterial. The liability of the mortgagees was several as well as joint. The mortgage was valid in the hands of the remaining mortgagees without assignment.

I will advise a decree accordingly.


text:
    GEORGE T. NEWELL, Jr., INCORPORATED, PROSECUTOR, v. THE WORKMEN’S COMPENSATION BUREAU, DEFENDANT.
    Argued January 21, 1932
    Decided March 16, 1932.
    Before Justices Trenchaed, Daly and Donges.
    For the prosecutor, Henry M. Hartmann.

    For the defendant, Palmer & Powell.

   Per Curiam.

The workmen’s compensation bureau made an award in favor of Burton Kiple, for injuries alleged to have been sustained by accident, on December 21st, 1928, whilst Kiple was helping to carry a can of ashes from the cellar to the main floor of the employer’s place of business and in the course of his work. The testimony was to the effect that while so doing he injured his back and was compelled to cease work.

The doctor who treated the petitioner below testified that there had been a severe or twisting strain, which injured certain vertebrae; that he was unable to work. He died on February 10th, 1931.

Two doctors for the defendant testified that there was an atrophy of the spine, by the closing of the joints between the vertebrae. They testified that, while the condition was probably of long standing, it would have been aggravated by a severe strain.

A fellow workman of Kiple, one Leone, testified that petitioner was helping him carry a can of ashes up the cellar stairs when something happened to Kiple that caused him to-almost drop the can; that Kiple gave immediate evidence of having suffered an injury'to his back.

The petitioner’s daughter testified that his condition grew progressively worse after the injury.

TJnder the proofs we think the compensation bureau was-justified in its determination that Kiple met with an accident arising out of and in the course of his employment. Atchison v. Colgate & Co., 128 Atl. Rep. 598; 3 N. J. Mis. R. 451.

Prosecutor contends that the testimony of Peter Leone and Lavinia Kiple was incompetent. Certainly much, if not all, of their testimony was competent. But there was no objection to its admission and hence there was no error in its admission.

The third point is that the award covered too long a period of time. The proof was that he was fully incapacitated from December 28th, 1928, to the date of his death on February 10th, 1931, and this was the period covered by the award. We think there is no merit in this point.

The fourth point is that the specific date of the accident is not established. In the petition it is fixed at ten A. m., December 21st, 1928. In its answer, prosecutor does not dispute this statement, and says that, the petitioner was obliged to stop work because of injury on December 24th, 1928. So that it would appear that this question was- not at issue, nor was it controverted at the trial. Petitioner had meanwhile died, and the date set out in the petition was evidently taken as the date of the accident without question.

The next point is that there was no proper party petitioner at the time of the award, because petitioner had meantime died. We are of opinion that under the statute, it was proper to proceed to under the petition filed to make suitable award to the date of petitioner’s death.

We are of the opinion that the award was reasonably supported by the evidence.

The judgment under review will be affirmed, with costs.


author: Acjkebson, C. C. J.

text:
    MARY DALE, JOSEPHINE TOFANELLI, JOSEPH MORAN, MARGARET GRIFFIN, ANNIE SHANLEY, AGNES McGRATH AND CATHERINE McCARTHY, PLAINTIFFS, v. MARY C. CONNOLLY AND JOSEPHINE SCHROTH, DEFENDANTS.
    Decided March 17, 1932.
    For the plaintiffs, John J. McDonough.

    For the defendants, Joseph B. Gallagher.

   Acjkebson, C. C. J.

This is an action in ejectment and comes before me for trial without a jury upon an agreed' statement of facts from which it appears that William J. Byan, Sr., and Sarah Bjmn, his wife, as tenants by the entirety, acquired title in fee-simple to the premises in question by deed dated May 22d, 1888. Said Byan died intestate, á resident of this state in May, 1890, leaving him surviving his said wife, Sarah Byan, and one son, William J. Byan, Jr. Sarah Byan died intestate, a resident, of this state on January 1st, 1915, leaving her surviving one son, the said William J. Byan, Jr., who thereupon became seized of the premises in question. Said William J. Byan, Jr., died intestate, a resident of this state, on or about September 9th, 1929, leaving no wife, child or children, brothers or sisters, or issue of any brothers or sisters, father or mother.

The said William J. Byan, Jr., was survived, however, on his father’s side by Mary Daly, a first cousin and Josephine Tofanelli, Joseph Moran, Margaret Griffin, Annie Shanley, Agnes McGrath and Catherine McCarthy, all second cousins and all parties plaintiff herein. The said William J. Ryan, Jr., was also survived on his mother’s side, by Mary 0. Connolly, a first cousin, and by Josephine Schroth, a second cousin, who are the defendants in this action.

The seven plaintiffs claim that they, and the two defendants are each entitled to an undivided one-seventh interest in the premises in question, as the heirs-at-law of the said William J. Ryan, Jr. The defendant, Mary C. Connolly, however, claims that she is the sole owner in fee-simple of the whole premises because it is claimed that title thereto came to the said William J. Ryan, Jr., by descent from his mother, and that as the plaintiffs are not of her blood they are excluded from the inheritance and as the defendant Josephine Schroth is not of equal degree of consanguinity with the said Connolly, the former cannot inherit. The defendant Josephine Schroth does not dispute the claim of said Mary C. Connolly, but insists that if such claim is not sustained, that then she, Josephine Schroth, is entitled to her proportionate share of said premises.

The solution of this problem is to be found in section 6 of our “Descent act” (1 Cum. Supp. Comp. Stat., p. 939), the pertinent part of which provides as follows:

“When any person has or shall die hereafter, seized of any lands, tenements or hereditaments as aforesaid, without devising the same in due form of law, and without lawful issue, and without leaving a brother or sister, of the whole blood or half blood, or the issue of any such brother or sister, and without leaving a father or mother, capable of inheriting under this act the said lands, tenements or hereditaments, and shall leave several persons, either of the whole or half blood, all of equal degree of consanguinity, although more remote than any person or persons who may be expressly excluded by any provision of law, to the person so seized, the said lands, tenements and hereditaments shall then descend of consanguinity either of the whole or half blood, to the person so seized, as tenants in common, in equal parts, however remote from the person so seized the common degree of consanguinity may be, and whether of the whole or half blood, unless where such inheritance came to the said person so seized by descent, devise or gift of some one of his or her ancestors, in which case all those who are pot of the blood of such ancestor shall be excluded from such inheritance, if there be any person or persons in being although more remote, and however remote, of the blood or half blood of such ancestors capable of inheriting the said lands, tenements or hereditaments.”

• The fundamental question presented is whether title to the premises in question vested in said Mary C. Connolly, first cousin of William J. Ryan, Jr., deceased, through the blood of his mother, Sarah Ryan, to the exclusion of Mary Daly, first cousin of said William J. Ryan, Jr., deceased, through the blood of his father, William J. Ryan, Sr.?

The answer to this question depends largely upon who is meant by “such ancestor” in the foregoing section of the “Descent act,” from whom the inheritance must come by “descent, devise or gift” to the person dying seized, in order to exclude those collateral heirs of equal degree of consanguinity who are not of the blood of such ancestor. Fortunately our courts have heretofore answered this question and it is now definitely settled that the words “such ancestor” used in the above quoted section clearly means and are exclusively confined to the ancestor from whom the lands came immediately to the person dying seized, and do not embrace other or more remote ancestors, although the lands may have passed from or through such ancestors to the immediate ancestor. Den Delaplaine v. Searing, 8 N. J. L. 340; Wills v. Le Munyon, 90 N. J. Eq. 353; 107 Atl. Rep. 159; Cook v. Mount, 37 N. J. L. J. 4; In re Quinn’s Estate, 94 N. J. Eq. 390; 118 Atl. Rep. 449; 14 Cyc. 29.

Ancestor according to its popular meaning is one from whom we lineally descend, and in its technical sense, as used in the statutes of descent, is one from whom an estate is inherited. Wills v. Le Munyon, supra; 14 Cyc. supra. Hence, a mother is an ancestor of her son. It is apparent, therefore, that “such ancestor” in .the case sub judice is Sarah Ryan, mother of William J. Ryan, Jr., for the entire fee of the premises in question came immediately from her to her said son who dies seized thereof. It follows that since the plaintiffs axe not of the blood of Sarah Ryan, they are excluded from the inheritance, and have no interest in the premises in question and are not entitled to possession of any part thereof. It also follows that as Mary C. Connolly is the nearest relative to the intestate on his mother’s side, that she is entitled to possession of the premises to the exclusion, not, only of the plaintiffs, but of her co-defendant, Josephine Schroth.

The court, therefore, finds in favor of the defendants and against the plaintiffs, and holds that the defendant Mary 0. Connolly is entitled to the possession of the whole of the premises described in the complaint.


author: Ackekson, S. C. C.

text:
    JOHN J. TREACY, RECEIVER OF THE JEWETT REALTY CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. SAMUEL VIGERSKY, DEFENDANT.
    Decided March 18, 1932.
    For the plaintiff, Hudspeth & Harris.

    For the defendant, Hey man •& Heyman.

   Ackekson, S. C. C.

This action is upon a promissory note alleged to have been made by the defendant to the order of the Jewett Eealty Corporation, of which company the plaintiff is receiver.

The matter now comes before me upon a motion to strike the answer, consisting principally of four separate defenses, upon the grounds that the third separate defense is frivolous, and that the balance of the answer and defenses are sham. As to the latter ground, it is sufficient to say that the defendant’s affidavit raises questions of fact which save the answer from being stricken out as sham.

"With respect to the third separate defense we find that it alleges in substance that the Jewett Eealty Corporation, the payee of said note, was engaged in the general business of loaning money and discounting mortgages, contrary to the “General Corporation act” (Eevision of Laws, 1896), under which said company was incorporated, and that the note in question was accepted and discounted by said corporation in pursuit of said prohibited business, contrary to the aforesaid statute, and is, therefore, illegal and unenforceable.

The “General Corporation act,” (Eevision of 1896), does not make a note, discounted by a corporation other than a bank, void, but only prohibits general corporations from engaging in the business of “discounting bills, notes or other evidences of debts,” &c. Since the transaction is not, therefore, void, it will not lie in the mouth of this defendant, who has obtained the consideration therefor, from the plaintiff, to urge such a defense. Campbell v. Perth Amboy Ship Building, 70 N. J. Eq. 40; Fritz v. Palmer, 132 U. S. 282; Earle v. American Sugar Refining Co., 74 N. J. Eq. 763. This defense is therefore frivolous and will be stricken out for that reason. The balance of the answer, however, must stand.

No costs will be allowed on this motion, and the case will be put in the commercial calendar for April, 1932. An order may be presented in accordance with the conclusion thus reached.


author: Ackbkson, C. C. J.

text:
    MRS. HELEN CARMODY, ADMINISTRATRIX AD PROSEQUENDUM OF WILLIAM CARMODY, PLAINTIFF, v. PIETRO PIZZO, DEFENDANT.
    Decided March 18, 1932.
    For the plaintiff, Edward M. Salley and Victor Bushin.

    For the defendant Charles C. Slatter.

   Ackbkson, C. C. J.

This is plaintiff’s rule to show cause why the verdict in favor of the defendant against the plaintiff should not, he set aside and a new trial granted on the ground of newly discovered evidence.

At the trial the plaintiff endeavored to prove that her intestate while in the defendant’s store on business and desiring to use a telephone asked the defendant, “is this the telephone booth, Pete?” To which the defendant is alleged to have answered, “yes.” It was sought by this testimony to show that plaintiff’s intestate was impliedty invited to enter a telephone booth in defendant’s store for the purpose of telephoning. The decedent did open a door on the side of the lunchroom and fell through an opening into the cellar below, sustaining the injuries which resulted in his death.

The defendant, however, testified that plaintiff’s intestate, Carmody, asked if I had a telephone in the place. I said, “haven’t got no telephone; next door, in the candy store. * * * I told him I had no telephone in the place; next door in the candy store.” Both the defendant and his wife testified that, there was no telephone in the store or restaurant. The defendant also testified that he had sometime before endeavored to get a pay station telephone booth in his store, but, failed because there' was a similar station next door in a candy store. The only evidence offered to contradict this was by the plaintiff’s witness, George Harper, who stated that he saw a telephone in the place but that, this was three months before the accident.

It will be seen that the question involved was. whether or not the defendant had a telephone in his store. Prom the testimony taken on the rule to show cause, it would appear that the telephone records show that a telephone had been installed in the premises, which had not been removed. The company’s representative, however, could not say where this telephone was located.

This is the newly discovered evidence upon which the plaintiff now relies and the only other witness was Mr. Harper, who had testified at the trial and who reaffirmed his testimony there given.

The defendant on the other hand took depositions of twenty-nine witnesses to show that no telephone existed in the restaurant of the defendant where the fatal accident occurred. Most of these witnesses were familiar with the place and had never seen a telephone there. Several of them had had occasion to telephone from the premises and had always gone upstairs to the private apartments of the defendant to telephone.

Inasmuch as the plaintiff in insisting upon a new trial upon the ground that the defendant committed perjury when he testified at the trial of the cause that there was no telephone in his restaurant, it is apparent that the plaintiff has failed to produce any testimony to substantiate this claim. At the trial the plaintiff did not claim that her intestate asked the privilege of using the telephone upstairs in the ■defendant’s private apartments but insisted that the implied invitation upon which the case rested was to use a telephone in a telephone booth in the store or restaurant. Certainly this theory of the case could not be helped by showing that, there was a telephone in the defendant’s apartments over his place of business and the defendant was never asked the use of a telephone in any other place.

Furthermore it would appear that the so-called newly discovered evidence is but cumulative in character, inasmuch as it was incumbent upon the plaintiff to show an invitation express or implied to her intestate to use a telephone in the defendant’s store and this she attempted to do at the trial by the testimony of the witness, Harper, who testified that there was a telephone there. Newly discovered evidence which is simply cumulative is not sufficient for the purpose of securing a new trial. Ellis v. The F. L. C. Martin Automobile Co., 77 N. J. L. 339.

In any event the plaintiff has failed to show any newly discovered evidence which would justify the court in setting aside the verdict and granting a new trial, and the rule to show cause is therefore discharged.


author: Parker, J.

text:
    HERMAN J. SCHUBERT, PROSECUTOR, v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF BERGEN COUNTY AND JAMES H. WHITE, JUDGE THEREOF.
    Decided March 12, 1932.
    Before Justice Parker, sitting alone pursuant to statute.
    For the prosecutor, Jason B. Elliot.

    For the respondent Anna Ellis, Herman Greenstone.

   Memorandum of decision by

Parker, J.

This matter has been heard in a somewhat informal way but without objection by anyone concerned. The writ, is to review the opening of a judgment in favor of prosecutor and against Anna Ellis in the above-named District Court, and transferring the cause to another District Court in the same county. Upon suggestion of alterations in the rule to show cause on which the rule opening judgment was founded, the original rule to show cause was submitted to me and has been examined with care and the informal statement of Judge White about it received and considered. If there were any question about a material fact the formal certificate of the trial judge would be called for to settle the matter. Gory v. Jackson, 76 N. J. L. 387.

It appears that there was a judgment for plaintiff in the District Court December 15th, 1930, for $50 and costs. At some later time (and this was a matter of fact in dispute) Judge White signed a rule to show cause returnable March 31st, 1931, why the judgment should not be opened and a new trial granted, and restraining execution in the meantime; and that a copy be served on plaintiff “within five days from the return date hereof.”

The order shows obvious indications that, it has been tampered with. The word “five” was typed at a later time than the body of the order; and the word “return” is interlined. Apparently the clause was drafted “within days from the date hereof.” The order was not served until March 26th, so the inference is that at the last moment an attempt was made to make the last paragraph conform to service on that date, but the operation was not very skillfully performed.

The dating of the order is very suspicious. It purports to be dated December 18th, 1930, but such an order returnable over three months later is almost inconceivable. On careful examination of the date it is clear that there was originally another date typed in, that this was erased and “18tli day of December 1930,” substituted.

If there were no more to this phase of the case I should be disposed to set, aside in foto the rule to show cause and the rule opening judgment; but Judge White reported to me, and said he was willing to certify, that the order had been signed by him with a blank return date in conformity with his custom of allowing the attorneys to make such orders returnable at their own convenience. Although I deem this practice highly irregular and liable to work great harm, as in the present ease, the statute does not seem to make it illegal. Section 17 allows the judge to order a new trial “provided that, application for such new trial, except where the said application is based upon newly discovered evidence, shall be made within thirty daj^s after judgment.” Consequently, so long as the application is made within the thirty days, the judge is in absolute control of the situation. He may reserve decision on it, apparently indefinitely; and thus a rule of this kind maj'- lawfully bear date long after the thirty days have expired. Nor do I apprehend that it is unlawful for the judge to leave the return date blank and authorize the attorney to fill it in. Such a practice, like making the order after the thirty days, is liable to great abuses and I cannot too strongly express my disapproval of it as a practice; but I cannot, as at present advised, set aside an order so made up, and regular on its face, as illegal.

Somewhat unwillingly, therefore, I am constrained to hold that there is no valid ground for setting aside the order to show cause; and that being decided, it follows that the later' order based upon it is supported so far as it opens the judgment and awards a new trial. But there is one feature of this final order that is clearly illegal, viz., the provision in the order of March 31st referring the cause to another District Court for further proceedings. Bor such action there is no warrant of law whatever. The statute does permit the judge of District Court B to sit as temporary judge in District Court A when requested so to do by the judge of District Court A (section 19 of act), but there is no provision for transfer of a cause to another court except by way of review, as appeal or ceritorari.

' The order opening the judgment will be set aside so far as it attempts to transfer the causé to' another court; in other respects it must be affirmed, and the District Court of the Third Judicial District, will be directed to proceed itself to retry the cause. The prosecutor succeeding only in part, neither party should have costs.

It is suggested that rule 9 of the District Courts of Bergen county provides that all orders shall be filed within five days, otherwise to be of no effect unless the judge shall otherwise direct. But a court, that can make rules is entitled to waive them, and on certiorari the Supreme Court should not set aside an order merely because not filed according to rule and in the absence of any injury appearing.