author: Dodges, J. S. 0.

text:
    WALTER J. HERBERT, PLAINTIFF, v. WILLIAM G. BURKHARDT, ET AL., DEFENDANTS. GEORGE E. LAIRD, PLAINTIFF, v. WILLIAM G. BURKHARDT, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 16, 1951.

      Mr. John E. Yoemans for the plaintiff (Mr. Bruce A. Wallace, attorney).

      Mr. Francis G. Iloman, attorney for defendants.
   Dodges, J. S. 0.

This matter is before the court on complaints in lieu of prerogative writs. Plaintiffs instituted separate actions to test the legality of their dismissal from the police department of Pine Hill. The two actions were consolidated for the purpose of a hearing' and heard by me without a jury.

I find the facts to be as follows:

Plaintiff, Herbert, was originally appointed as a special officer in 1939, and promoted through the ranks until he received the position of chief of police in 1940, when the office was abolished. Plaintiff, Laird, was appointed a special officer in 1941 and served as such until May 3, 1944. On the latter date, the Borough Council of Pine Hill passed an ordinance creating a police department. Pursuant thereto, plaintiff Herbert was appointed as chief of police and Laird as a patrolman. They occupied these positions until December 31, 1949. In 1946 the ordinance was amended to fix definite salaries for these men. During the early part of 1950, these men served in the respective positions, although they had not been reappointed. On April 17, 1950, the borough council summarily dismissed them. The plaintiff, Herbert, was a member of council when the two ordinances were passed.

Plaintiffs now allege that their dismissal was contrary to the provisions of R. 8. 40:47-5 and 6 which provides in effect that officers and men of a municipal police department shall hold their respective positions during good behavior and shall not be removed except for just cause and then only after written charges have boon preferred and upon public hearing. The provisions of this statute were concededly not complied with and plaintiffs were summarily dismissed.

Defendants, however, contend that the ordinance creating the police department is illegal and plaintiffs, at any rate, were not eligible to hold the offices because of age.

I do not feel that the objections raised by the defendant have any merit at this time. Whether the appointments were invalid can have no relevancy here. The plaintiffs were at least de facto officers. It has been held that the provisions of J?., S. 40:47-5 and 6 make no distinction between officers de facto and officers de jure and their protection extends to both classes. Magner v. Yore, 75 N. J. L. 198 (Sup. Ct. 1907); Shibla v. Township Committee of Wall Township, 136 N. J. L. 506 (Sup. Ct. 1948); affirmed, 137 N. J. L. 692 (E. & A. 1948). It has further been held that the officers’ ineligibility at the time of appointment is not ground for removal. Ouster must be accomplished by the proper proceedings. Shibla v. Township Committee of Wall Township, supra.

The proceeding before me is in effect a proceeding in lieu of certiorari. My function at this time is to review the action of the borough council. I find from the evidence that the plaintiffs were summarily removed without the benefit of written charges or a hearing. Furthermore, the ouster for ineligibility would have to be accomplished by writ in lieu of prerogative writ (in the nature of quo warranto). The municipality can not discharge the officers without legal proceeding and force them to seek redress. The procedure in lieu of quo warranto was followed in the ease of State ,ex rel. Wm. Eckelmann, Inc., v. Jones, 4 N. J. 207 (Sup. Ct. 1950).

The removal of these plaintiffs was accomplished in an illegal manner. Defendants’ action is therefore set aside and plaintiffs will be restored to their positions as of the date of the illegal ouster, April 17, 1950.


source: Caselaw Access Project

author: Jayne, J. A. D.

license: Public Domain

text:
    GARNETT B. LIPSCOMBE, PETITIONER-RESPONDENT AND CROSS-APPELLANT, v. LOIZEAUX LUMBER COMPANY, RESPONDENT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951 —
    Decided March 20, 1951.

      Before Judges McGeeitan, Jayne and Wit. J. Brennan, Jr.

      Mr. Thomas J. Brett argued the cause for the appellant and cross-respondent (Messrs. O’Brien, Brett ¡& O’Brien, attorneys).

      Mr. Mario Turtur argued the cause for the respondent and cross-appellant.
   The opinion of the court was delivered by

Jayne, J. A. D.

In consequence of the present appeal and cross-appeal we undertake a studious consideration of the judgment of the Union County Court entered on October 6, 1950, by which the petitioner, Garnett B. Lipscombe, was granted an award of workmen’s compensation.

On June 25, 1948, the Workmen’s Compensation Bureau of the Department of Labor received the claim petition in which ,the petitioner alleged that on November 5, 1947, he sustained an accident arising out of and in the course of his employment in the mill of J. D. Loizeaux Lumber Company at Plainfield in which he incurred a bodily injury necessitating the amputation of his right leg. On January 15, 1949, he presented an amended claim petition asserting that the injuries suffered in the accident had also required the amputation of his left leg. Chronologically the former amputation occurred on May 28, 1948; the latter on December 28, 1948.

The transcript of the proceedings before the deputy director occupies 489 pages. On March 14, 1950, the deputy director resolved that the petition should he dismissed and judgment was accordingly entered in favor of the respondent. We. observe that at the outset of the hearing counsel for the respondent admitted the alleged employment and the occurrence of the accident on or about November 5, 1947, in the course of the emplojunent.

On appeal the Union County Court manifestly after an exhaustive examination of the evidence determined that compensation should be allowed for the loss of the left leg and that the cause should be remanded to the Bureau to fix the compensation, fees, and allowances. Judgment was in due course entered in the County Court in accordance with the decision. Both parties criticize the judgment, the respondent declaring that the dismissal of the petition by the Bureau should have been affirmed, and the petitioner by his cross-appeal contending that the loss of both legs resulted from the injuries sustained by the petitioner in the accident.

Obviously the field of controversy embraces primarily the nature and character of the accident, the quality of the injuries actually sustained by the petitioner, and the causative relationship, if any, between the injury or injuries and the loss of one or both of the petitioner’s lower limbs.

Elaborate recitations of the divergent, conflicting, and contradictory evidence appear in the deputy director’s determination of facts and in the opinion of the county judge. A recomposition here will not be serviceable to the litigants or their counsel.

Our independent consideration of all of the evidence discloses reasonable justification for many of the findings in which the deputy director and the county judge concurred, such as the inadequacy of preponderant evidence that the great toe of the right foot suffered any injury in the accident, the counterpoise of the evidence relating to the alleged fracture, the absence of complaint and of any objective indication of trauma in that area at the time of the accident and during the period of treatment by Dr. Doggett.

In the existing state of the evidence the two conclusions that the petitioner failed to carry the burden of proving that the accident was a precipitating cause of the loss of the right leg do not appear to be mistaken.

The complicating factual element of the present case is the logically permissive deduction that the blood circulation to the petitioner’s feet was found immediately following the accident to bo noticeably impeded by arteriosclerosis. Symptoms of such condition had been discovered as early as March, 1941, thus supplying some reason to believe that there was a circulatory disease preexisting the accident. Vide, however, Marshall v. C. F. Mueller Co., 135 N. J. L. 75 (Sup. Ct. 1946).

The evidence, however, is persuasive that the little toe of the left foot suffered injury in the accident. Dr. Doggett discovered some swelling and marked tenderness of the toe. There was no such clinical evidence on the right foot. In this case, as in too many others, we recognize the perplexity occasioned by the discordance of the opinions of the medical experts relative to whether the traumatic injury sustained in the accident aroused and accelerated the arteriosclerotic tendency to gangrene. Cf. Cahill v. Franklin Trust Co., 15 N. J. Misc. B. 409 (Sup. Ct. 1937); Ayers v. Public Service, &c., Transport, 12 N. J. Misc. 777 (Sup. Ct. 1934); Schust v. Wright Aeronautical Corp., 7 N. J. Super. 54 (App. Div. 1950).

In determining the preponderance of probabilities— Hercules Powder Co. v. Nieratko, 113 N. J. L. 195 (Sup. Ct. 1934); affirmed, 114 N. J. L. 254 (E. & A. 1935) — the satisfactory proof of the accidental injury to the left toe was undoubtedly a distinguishing and influential element of the decision under review. To expand the probabilities under the evidence to warrant the conviction that the injury to the little toe of the left foot hastened the progression of the arteriosclerotic condition of the right foot would be to encroach upon surmise and conjecture.

Recognizing the span of time that elapsed between the accident and the development of the gangrenous state of the left foot, it seems manifest in our view of the proof that a full measure of compensatory relief under the statute was afforded the petitioner.

We do not undertake to consider and decide the case de novo. Galloway v. Ford Motor Co., 7 N. J. Super. 18 (App. Div. 1950); affirmed, 5 N. J. 396 (1950).

“It is clear, moreover, the factual findings to which determinative weight is in the first instance to be accorded by this court are the findings of the County Court. We on our part approach the review of the County Court’s judgment on that premise. Of course, we are empowered under B,ule 3 :81-13 to review the facts and make independent findings thereon (Cf. Rules 1 :2 — 20 and 4:2-6) and, while this-power is permissive and a litigant may not as a matter of right require our exercise of it, we do not hesitate to employ it where the ends of essential justice will he served by our doing so. In determining whether to accept the findings of the County Court or to make new findings, however, we give the determinative weight to tite County Court’s findings we have been discussing and will not reverse unless satisfied from our reading of the record the interests of justice require reversal.” Donofrio v. Haag Brothers, Inc., 10 N. J. Super. 258, 262 (App. Div. 1950); Gagliano v. Botany Worsted Mills, 13 N. J. Super. 1 (App. Div. 1951).

The judgment is affirmed.


author: Pee Curiam.

text:
    MARTIN B. O’CONNOR, TRUSTEE IN BANKRUPTCY OF THE AMITY MANUFACTURING CORPORATION, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. THE FIRST BANK AND TRUST COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided March 1, 1951.

      Before Judges Freund, Proctor and Rogers.
    On appeal from a judgment of the Superior Court, Law Division, where Judge Frank L. Cleary filed the following opinion:
    “This is a motion for summary judgment by the defendant, the First Bank and Trust Company, a banking corporation of New Jersey. The motion is based upon the pleadings and interrogatories and answers to interrogatories which have been filed in this cause and an affidavit of the defendant in support of the motion.
    “Martin B. O’Connor, trustee in bankruptcy of the Amity Manufacturing Corporation, brings this suit against the defendant, the First Bank and Trust Company, to recover judgment against the defendant for the sum of $30,000. The Amity Manufacturing Corporation was adjudicated a bankrupt by order of the United States District Court for the District of New Jersey on October 21, 1948. The plaintiff was appointed trustee in bankruptcy. The complaint alleges that .the Amity Manufacturing Corporation borrowed from the Seaboard Commercial Corporation on December 12, 1947, the sum of $30,000.

      “A check was made out by Seaboard Commercial Corporation to the order of Amity Manufacturing Corporation in this amount. This chock was endorsed as follows: ‘Pay to the order of Armand I)e Mott, Amity Manufacturing Corporation by J. E. Zelenka, President Edward Foster, Authorized Signature.’ From the interrogatories it appears that Armand De Mott transferred the shares of stock which he owned in the Amity Manufacturing Corporation as consideration. The check was endorsed by Armand E>e Mott and deposited in his account with the defendant hank. The defendant bank paid this sum of money into the account of the aforesaid Armand De Mott.
    “The trustee in bankruptcy now asks that the defendant hank repay to him as trustee of the Amity Manufacturing Corporation the aforesaid sum of money. At the time of the transaction Armand Do Mott was vice-president and secretary and also oil the hoard of directors of the Amity Manufacturing Corporation.
    “The defendant bank denies its liability to the trustee and sets up six separate defenses as follows: The first defense states that the plaintiff is estopped from instituting the present action because the stockholders, officers and directors of the Amity Manufacturing Corporation knew of the entire transaction and did nothing about it to the prejudice of the defendant; so.condly, the transaction was ratified and confirmed by the Amity Manufacturing Corporation; thirdly, that the defendant is a holder in due course; fourthly, that the defendant acted as an agent for Armand De Mott; fifthly, that the defendant is protected from liability by the Uniform Fiduciaries Law; and sixthly, that the Amity Manufacturing Corporation had no beneficial interest in the chock.
    “The defendant bank had on file a corporation certificate and resolution which stated as follows:
    “ TtKSOLVFB that the funds of this corporation be deposited in the First Bank and Trust Company, Perth Amboy, New Jersey, subject to checks made in the corporate name signed by the President, Vice-President, Secretary, Treasurer, or either or any one of them (strike out officers not designated) who are also authorized to make, collect, discount, negotiate, endorse, assign and deposit in the corporate name, all checks, drafts, notes and negotiable paper, payable to or by this Corporation, also including non-negotiable papers; and, that all checks and instruments of the Corporation as aforesaid, including checks and instruments drawn to cash, bearer, or to the individual order of the officer, or officers signing or endorsing the same, shall be honored and paid by said bank and charged to our account. Said designated officer or officers are authorized to borrow money or bind this Corporation in any agreement or agreements with said bank. Any Officer, Agent, Employee and representative or other person, may deposit checks, or other instruments of this Corporation for credit to the account of this Corporation, without signatures, and for the purpose of so doing, may endorse said instruments for such deposit, and nothing herein stated shall be construed to the contrary. This resolution shall be binding on this Corporation unless and until and from such time only as another resolution shall be duly adopted by this Corporation which shall change the effect hereof and the receipt of a true copy of such new resolutions shall be duly acknowledged in writing by the executive officer in charge of the bank. This written acknowledgment shall constitute the only competent and admissible evidence of such receipt in any instance wherein the Corporation may claim such new resolution to have been adopted and received by the bank and deny authority of any officer or officers designated in the original resolution and certificate furnished the bank.’
    “The resolution was dated September 9, 1947, and was in effect at the time -that De Mott deposited the check to his account. There is a notation upon the certificate and resolution filed with the bank to the effect that all checks of the corporation over the amount of $500 must be signed by any two of the following: J. R. Zelenka; A. De Mott; E. Foster. The check was in fact signed by J. R. Zelenka and E. Foster.
    “At the time of the transaction Zelenka was president-treasurer and was the owner of 343 shares of stock. Armand De Mott was the vice-president and secretary and held 342 shares of stock. Zelenka, De Mott and James De Mott comprised the board of directors. James De Mott held one share of stock.
    “The substance of the matter before me revolves around the question of whether title to the negotiable instrument passed from the Amity Manufacturing Corporation to Armand De Mott and subsequently to the defendant bank in such a manner as to constitute the defendant bank the legal holder of the check in issue.

      “It is well settled, of course, that the plaintiff, receiver for the Amity Manufacturing Corporation, stands in the shoes of the aforesaid corporation and has no greater right than the corporation itself. Cohen v. Miller, 5 N. J. Super. 451 (Ch. Div. 1949).
     “Counsel for both plaintiff and defendant in their briefs admit, as is the case, that a corporation has the general power to make and endorse negotiable paper, Fifth Ward Savings Bank v. First National Bank, 48 N. J. L. 513 (E. & A. 1886), and a corporation, however, must act through an officer, employee or other agent who may have the express or apparent authority to endorse checks payable to the corporation. Whether or not this authority has been given is a matter within the law of agency. Krueger v. Vogel’s Farm, Inc., 15 N. J. Misc. 209 (Sup. Ct. 1937). The endorsement of a negotiable instrument by an officer, employee or other agent of a corporation who is not empowered to make or endorse commercial paper is in effect the equivalent of a forged making or endorsement which does not pass title to the instrument in question. See, Teas v. Third National Bank & Trust Co., 125 N. J. Eq. 224 (E. & A. 1939) ; Passaic-Bergen Lumber Co. v. U. S. Trust Company, 110 N. J. L. 315 (E. & A. 1933).
    [ 4. 5] “The business of a corporation is managed by its board of directors. As a general rule a corporation may only act through its board. Blauvelt v. The Citizens Trust Co., 3 N. J. 545 (Sup. Ct. 1950); R. S. 14:7 — 1. In the instant case there is the question of whether the board of directors of the Amity Manufacturing Corporation had empowered certain persons to endorse checks payable to the corporation. It is admitted that the board of directors did on September 9, 1947, empower any two of the following: J. M. Zelenka, president-treasurer, Armand De Mott, vice-president-secretary, and E. Poster, authorized signature, to do certain acts with regard to checks over the amount of $500. The resolution setting forth these acts was filed with the defendant bank and was relied upon by the defendant bank in its acceptance of the check in issue After a careful reading of the resolution which is set forth above it is my opinion that this resolution empowered the Amity Manufacturing Corporation to deposit its funds in the defendant bank; it empowered the authorized persons mentioned therein to draw checks upon these funds; it further empowered these persons to make checks, to collect checks, to discount them, to negotiate them, to endorse them, to assign them and to deposit them. It is apparent from a full reading of the resolution that it is not restricted to authorizing the corporation involved merely to open a bank account, nor is it restricted to endorsements of checks payable to the corporation for deposit alone. This is apparent from the resolution itself and especially that sentence which permits checks of the corporation to be deposited without any endorsements whatsoever. Furthermore the types of checks referred to in the resolution are not limited to checks made by the corporation. The resolution clearly states that the checks referred to therein may be checks made by the corporation or they may be checks payable to the corporation. The persons authorized to do all of the acts contained in the resolution including the power of endorsement were Zelenka, De Mott and Foster, that is any two of them where the check was over $500. The endorsement on the check involved here in the first instance was Tay to order of Armand De Mott, Amity Manufacturing Corporation by J. R. Zelenka, President, Edward Foster, Authorized Signature.’ In my opinion there was ample power on the part of these two persons to negotiate or tranfer by endorsement any checks made payable to the corporation. This distinguishes the instant case from the cases of Teas v. Third National Bank & Trust Company, 125 N. J. Eq. 224 (E. & A. 1939); Singer & Co. v. Citizens National Bank and Trust Company of Englewood, 111 N. J. L. 199 (Sup. Ct. 1933); affirmed, 112 N. J. L. 497 (E. & A. 1934); Passaic-Bergen Lumber Co. v. United States Trust Co., 110 N. J. L. 315 (E. & A. 1933); and Economy Auto Supply. Co. v. Fidelity Union Trust Company, 105 N. J. L. 206 (E. & A. 1928), which cases are relied upon by the plaintiff.
    “In all of these cases the question, as it is here, was whether or not there was power in the person who in fact endorsed, to endorse the commercial paper there concerned.

      “In the case of Economy Aulo Supply Co. v. Fidelity Union Trust Co., 105 N. J. L. 206 (E. & A. 1928), it was proven that tile resolution in question empowered the treasurer of the corporation involved to endorse checks where in fact the check had been endorsed by the president. Here the check was endorsed by the very persons authorized in the resolution. The instant case is not one of the apparent or implied authority but express authority given by the board of directors as revealed in the resolution filed with the defendant bank. The following cases are indicative of the great weight which is attached to corporate resolutions: Passaic-Bergen Lumber Co. v. United States Trust Co., 110 N. J. L. 315 (E. & A. 1933); Krueger v. Vogel’s Farm, Inc., 15 N. J. Misc. 209 (Sup. Ct. 1937) ; also see 7 Fletcher Cyc. Corps., § 3039.
    16] “The contention of the plaintiff that the defendant bank failed to make proper inquiry as to the authority of the officers and the transaction in question is not sound. The bank had in its file the corporate resolution which as wre have seen empowered Zelenka and Poster to endorse checks payable to the order of the corporation. It is not perceivable as to what belter source would be available to the bank other than a corporate resolution.
    “Although plaintiff states in his brief that the defendant bank was under a duty to inquire as to the nature and characler of Ihe transaction itself, which was the sale of De Mott's stock to the corporation, he cites no authority. My own examination of the cases on this point leads me to the conclusion 1 hat assuming the necessity of inquiry, the bank satisfied this necessity by consulting the corporate resolution which expressed the agency of Zelenka and Poster to endorse negotiable instruments. Cf.: Slavin v. Passaic National Bank and Trust Co., 114 N. J. L. 341 (E. & A. 1935); Singer & Company v. Citizens National Bank & Trust Company of Englewood, 111 N. J. L. 199 (Sup. Ct. 1933); affirmed, 112 N. J. L. 497 (E. & A. 1934) : Passaic-Bergen Lumber Co. v. United States Trust Company, 110 N. J. L. 315 (E. & A. 1933) ; Dennis Metal Manufacturing Co. v. Fidelity Union Trust Company, 99 N. J. L. 365 (Sup. Ct. 1924). In these cited cases and others, the inquiry demanded, in an endorsement of the kind in the instant case, was as to the corporate agent’s authority to endorse for the corporation. I find no case in point and none has been called to my attention where there was a further duty upon the part of a holder of commercial paper to inquire into the internal affairs of a corporation in order to determine whether a transaction which on its face may be legal was in fact illegal because of the failure of the corporation to' abide by a particular corporate law. It is not illegal per se for a corporation to purchase its own stock. B. S. 14:3-5. As we have noted, the transaction whereby De Mott received the corporate check was one in which he sold all the shares of stock which he owned in the corporation to the corporation. It would appear to be an undue burden, not contemplated by our law, to cause a holder of a commercial instrument to inquire into the method by which the transaction is completed, which would have been necessary here to determine the legality of the sale. II. Horowitz, Inc., v. Weehawken Trust and Title Co., 10 N. J. Misc. 417, 418 (Sup. Ct. 1932) ; 10 C. J. S. 1116, § 506h.
    “The complaint filed herein, although in one count, attempts to base its claim for relief upon two separate theories. The first is that there was no authority in Zelenkh and Foster to endorse the check. This we have seen is not factually so. The filed resolution which stands uncontradicted is dispositive in that it reveals the power of these persons to transfer title to the check. ' The other theory appears to be that the defendant bank knew or ought to have known that the transaction by which the check was transferred constituted a breach of trust. See: L. B. A. 19150, 518. There is no allegation that the parties conspired to defraud the Amity Corporation but there are the allegations that De Mott was an officer, a member of the board of directors, and that the defendant bank knew that the endorsement was an unlawful diversion of funds or could have discovered this by the exercise of reasonable care. With regard to this latter theory there are no facts at all to indicate that the defendant knew that the transaction was illegal or that a breach of trust was being committed. In the absence of this the defendant bank was not bound to inquire whether the fiduciaries committed a breach of their obligation. R. S. 3:44 — 4; H. Horowitz, Inc., v. Weehawken Trust and Title Co., 10 N. J. Misc. 417, 418 (Sup. Ct. 1932). Nor should we lose sight of the fact that the resolution empowered the corporate agents to transfer all cheeks whether made by or payable to the corporation and without limitation as to the persons to whom the said checks could be endorsed.
    “If in fact there was an impairment of capital structure by the purchase of De Mott’s stock and creditors were injured, plaintiff is not in a position to rectify the alleged illegal acts of the corporation as against this defendant who had no actual knowledge of the aforesaid illegality, or knowledge of facts from which it might be inferred that the transaction was illegal. The plaintiff’s contention, in his brief, that the statute does not apply because the defendant bank admits that the proceeds of the instrument were used by De Mott to satisfy a personal obligation due and owing to the defendant bank, is not borne out by the facts. The factual matter before me reveals that De Mott had previously borrowed money from the defendant bank and secured the same by a mortgage. The cheek in issue was credited to De Mott’s account on or about December 15, 1947. The first payment to the bank thereafter on the mortgage was on January 19, 1948, in the amount of $3,500. This is not the kind of payment contemplated by the statute.
     “Armand De Mott having endorsed the check and transferred it to the bank, the defendant thereupon became a holder of said check. National Bank of N. J. v. Berrall, 70 N. J. L. 757 (E. & A. 1904); Titus & Scudder v. Mechanics’ National Bank, 35 N. J. L. 588 (E. & A. 1871); R. S. 7 :1-2. The defendant bank credited to the account of De Mott the sum of $30,000. The defendant bank by affidavit states that it had no knowledge of the facts of the transaction between the corporation and De Mott. No counter-affidavits have been filed by the plaintiff. It appears from the defendant’s interrogatories and plaintiff’s answers thereto and as stated above that the check was in fact endorsed to De Mott in consideration for De Mott’s sales to the corporation of the shares of stock which he held in said corporation. Assuming that said transaction was in fact illegal as between the corporation and De Mott, it is settled law that such illegality cannot be asserted against an innocent holder in due course. Modern Industrial Bank v. Taub, 134 N. J. L. 260 (E. & A. 1946); National Bank of Republic v. Young, 41 N. J. Eq. 531 (E. & A. 1886); Blake v. Domestic Manufacturing Co.,64 N. J. Eq. 480 (Ch. 1903); R. S. 7:2-57.
    “I conclude, therefore, that there was a valid transfer of title by the corporation to Armand De Mott upon the endorsement by their authorized agents, Zelenka and Foster, and that the blank endorsement by Armand De Mott and the delivery to the defendant bank, which accepted the check in good faith and without knowledge of any infirmity in the instrument, constituted the defendant bank a holder in due course under R. S. 7:2-52.
    “The motion by the defendants for summary judgment against the plaintiff is accordingly granted.”

      Mr. John B. Molineux argued the cause for the appellant (Mr. Douglas M. Hicks, attorney),

      Mr. Arthur J. Sills argued the cause for the respondent (Mr. David T. Wilentz, attorney).
   Pee Curiam.

The judgment is affirmed for the reasons expressed in the opinion of Judge Cleary in the court below.


author: Jaynb, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JEROME GOLDBERG, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951 —
    Decided March 13, 1951.

      Before Judges MoGeehan, Jayne and Wm. J. Beennan, Je.

      Mr. Meyer E. RubacJc argued the cause for the appellant (Mr. Saul M. Mann, attorney).

      Mr. J. Bernard Sdttzman argued the cause for the respondent (Mr. Donald G. Gollester, County Prosecutor of Passaic County, attorney).
   The opinion of tlie court was delivered by

Jaynb, J. A. D.

The participants in the scrimmage which the present appeal brings to our attention will some day look back upon it more in regret than in anger. A resort to physical violence is a particularly shabby expedient in the solution of a family quarrel. Here we are requested to review judicially a judgment emanating from the irascibility of a father 73 years of age and his two adult sons.

Sufficient of the factual story must be related to display the subject matter of our consideration. Michael Goldberg is the father of Solomon and Jerome Goldberg. They are associated as partners in business.

The father subscribed to á complaint in the Court of the First Criminal Judicial District of the County of Passaic charging that “on the 10th day of June A. D. one thousand nine hundred and fifty at the City of Paterson, in the County aforesaid and within the jurisdiction of this court, one Solomon Goldberg did wilfully and unlawfully commit an assault and battery on the person of this complainant with force and arms, to wit: did kick complainant in the groin and did hold him by his hands; one Jerome Goldberg did choke him and did push him up against the wall; and did otherwise ill treat this complainant, contrary to the form of the statute in such ease made and provided, to wit: Title 2 :103 — 1 Kevised Statutes New Jersey, 1937. Therefore, this complainant prays that the said Solomon Goldberg (sic) may be apprehended .and held to answer said complaint, and dealt with as law and justice may require.”

In pursuance of the complaint both Solomon and Jerome seem to have been arraigned, and upon hearing the testimony, Solomon was acquitted. Jerome was convicted of the alleged assault and battery, and the sentence thoreon indefinitely suspended. Jerome, however, challenges the factual and legal propriety of his conviction.

Unfortunately the testimony at the hearing was not recorded stenographically, and we are accordingly obliged to harvest our information concerning it from a summarized statement of the case, settled by the trial court. Rules 1:2-23, 4:2-6.

The genesis of the embroilment seems to have been the circumstance that the father upon his return from Florida ascertained that there was a balance of $12,000 in the partnership bank account, from which he unconventionally withdrew for his own use the sum of $4,000 without the knowledge of his sons. Upon the presentation of the outstanding checks theretofore drawn upon the account, the sons learned of their father’s impropriety with some degree of embarrassment and discomposure.

The father thereafter visited the place of business of the partnership, caressed his son, Solomon, but Jerome forthwith calmly invited his father and brother to accompany him to the basement. Both accepted the invitation. Upon their arrival there Jerome at once proceeded to chide, if not borate, his father for his clandestine act of confiscating a portion of the bank account Wrath was nourished by the interchange of ill-tempered epithets. “Too many mischiefs that vex the world arise from words.”

The father testified at the trial that “Jerome grabbed me by .the throat and choked me and Sol held my hand and put his knee in my groin. I kicked them and screamed.”

Both Solomon and Jerome imparted in their testimony a significantly dissimilar portrayal of the altercation. We reproduce the following pertinent excerpts from the statement of the case settled by the trial court:

“The defendant, Solomon Goldberg, in defense of the complaint, testified under oath that he was called to the cellar by his brother, Jerome; that a discussion ensued between his brother Jerome and his father; that his father picked up a wooden reel to strike Jerome; that Jerome grappled with his father and that he held his father by the wrists while Jerome had his around the shoulders and neck, from the rear. He further stated that his father wasn’t slapped nor punched and that he, Solomon, stepped in to separate his father and brother during the quarrel to prevent injury to either of them.
The defendant, Jerome Goldberg, testified under oath that when his father came to the place of business on June 10, 1950, he told his father that he had something to discuss with him and requested him to come down to the cellar and also requested his brother to come, as he desired to discuss with his father the withdrawal by his father of the $4,000 out of the partnership account. He likewise requested Solomon to join with them. When he reached the cellar, he inquired of his father why he had withdrawn the $4,000 from the bank, cleaning out the account to the extent that the outstanding cheeks could not be met. Thereupon his father, the complainant, swore profanely at him and picked up a wooden reel and endeavored to strike him; that thereupon he, Jerome, grasped his father’s arms pinning them to his father’s body and al the same time the defendant, Solomon, his brother, intervened to separate them. He further testified that he didn’t punch, slap, nor strike his father and that the only reason he requested him to come to the cellar was to discuss the matter of the withdrawal of funds and to have privacy. The wooden reel was offered in evidence and it consisted of a light piece of wooden fixture used in their business and which weighed, perhaps, several ounces. It was also testified that the conversation was loud. The defendant, Jerome, further stated that when his father sought to obtain the wooden reel, it required that he go some distance from the stairway which led upstairs and that he, Jerome, could have walked upstairs before the father’s return with the wooden reel. The defendant, Jerome, did not avail himself of this avenue of withdrawal.”

The reel to which reference is made is a wooden rectangular frame weighing approximately 11 ounces, around which cloth, fabrics, and textiles are wound, forming a bolt.

As an incidental prelnde we bring to view the ancestral enactment of the General Assembly of the Province of New Jersey on December 9, 1675, which ordained that:

“X. Item. If any child or children above sixteen years of age, and of sufficient understanding, shall smite or curse their natural father or mother, except provoked thereunto, and forced for their safe preservation from death or maiming, upon the complaint or proof of the said father or mother, or either of them (and not otherwise) they shall be put to death.”

Leaming & Spicer, Grants and Concessions of N. J. (2d ed. 1881), p. 106.

There are certain features of the case in the exposure in which it is presented to us which particularly engross our consideration.

Unless the substantially concordant testimony of Solomon and J eróme was for some undisclosed reason essentially depreciated in its evidential value or rejected as incredible, it is more than difficult to perceive in the record the requisite degree of proof to sustain Jerome’s conviction. A reconciliation and adaptation of the evidence are rendered the more perplexing in view of the acquittal of Solomon and the conviction of Jerome.

Counsel for the appellant points to the most plausible explanation of the dissimilarity of the judgments. It is revealed by the following quotation extracted from the court’s statement:

“The defendant, Jerome, further stated that when his father sought to obtain the wooden reel, it required that he go some distance from the stairway which led upstairs and that he, Jerome, could have walked upstairs before the father’s return with the wooden reel. The defendant, Jerome, did not avail himself of this avenue of withdrawal.”

The right of self-defense and the limitational obligation to accept an available opportunity to retreat are conspicuous examples of the development of our law. An examination of the history of the English law of self-defense discloses that from the beginning of the jurisdiction of the king’s courts over crime until the reign of Edward I, homicide could be justified only in the execution of the law. In all other cases, whether of misadventure or of necessary self-defense, the defendant had no legal justification. Chancery sought to afford relief in such cases, but this was forbidden by the statute of Gloucester which provided that a verdict of guilty should be found before the justices in eyre or gaol-delivery, and then “by the report of the justices to the king, the king shall take him to his grace, if it please him.” 6 Ed. I, c. 9; 2 Poll. & Mait., History of Eng. L. (2d ed.) 479. The granting of a pardon in cases se def endeudo soon became a matter of course and the Chancellor signed the pardon in the king’s name.

The duty to retreat finds expression in the minutes of an early case:

“Note that at the delivery of Newgate, before Knyvet (O. J.) and Lodelow (O. B.) it was found that a chaplain se def endeudo slew a man, and the justices asked how. And (the jurors) said that the man who was killed pursued the chaplain with a stick and struck him, and he struck back, and so death was caused. And they said that the slayer, had he so willed, might have fled from his assailant. And therefore the justices adjudged him a felon, and said that he was bound to flee as far as he could with safety of life. And the chaplain was adjudged to the Ordinary.”

43 Ass. pi. 31: translated. Kenny, Cas. Cr. L. 141.

It was probably not until 1534 after the enactment of the statute 24 Henry Till, c. 5, that self-defense became a legal defense.

Then there arose a distinction between a so-called justifiable homicide and an excusable homicide. Sir ilichacl Poster appears to have been the first writer to employ that distinction as the test by which to determine the duty to retreat. Essay on Homicide {1st ed. 1762).

Blackstone recognized justifiable homicides as those in which the slayer is not “in the minutest degree” in fault, and excusable homicides as those in which “there is some fault) some error or omission; so trivial, however, that the law excuses it from the guilt of felony.” 4 Blackstone Comm., c. 14. The excusable class embraced homicides occasioned by misadventure and by self-defense.

The distinction in its original breadth between justifiable and excusable homicide has survived in some jurisdictions and has been apparently disregarded in others.

Poster’s distinction between the retreat to avoid the necessity to kill and the retreat to avoid responsibility for the combat has since undergone both approval and disapproval. Runyan v. State, 57 Ind. 80 (Sup. Ct. 1877); cf. Erwin v. State, 29 Ohio St. 186 (Sup. Ct. 1876).

The European law prior to the 20th Century seems to have been generally favorable to the rigid to stand one’s ground. We have not undertaken to trace its more recent tendencies.

In this country the subject of retreat, or “retreat to the wall,” has encountered a conspicuous diversity of judicial opinion. It is not astonishing to discover in the early decisions in the western and southwestern jurisdictions an ethical abhorrence of flight, regarding it as a spectacle of cowardice and disgrace. This theory has been characterized as the code of the duelist, the German officer and the buccaneer. Beale, 16 Earv. L. Rev. 567. The other point of view is well expressed in Yon Ihering, The Struggle for Law (Lalor’s trans.) 122 ff.

The two pertinent decisions of the United States Supreme-Court to which reference has been most frequently made are Beard v. United States, 158 U. S. 550, 15 S. Ct. 962, 39 L. Ed. 1086 (1895), and Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Vide, also, Rowe v. United States, 164 U. S. 546, 17 S. Ct. 172, 41 L. Ed. 547 (1896), and Alberty v. United States, 162 U. S. 499, 16 S. Ct. 864, 40 L. Ed. 1051 (1896).

The earliest reported case in our state jurisdiction is State v. Wells, 1 N. J. L. 424 (Sup. Ct. 1790), in which the rationale of Foster is recognized: “The judge, in his charge to the jury,, having observed that, as the act of homicide was fully proved,, and, indeed, admitted on behalf of the prisoner, told them the-subject of their inquiry was whether the prisoner at the bar was guilty, as he stood charged in the indictment, or not; that homicide was, in some cases, justifiable, and in others was excusable; but he remarked, that whoever would shelter himself' under the plea of self defence, more particularly in the case of a mutual conflict, must make it appear that, before the-mortal stroke was given, he had declined any further combat;, that he had retreated as far as it was possible to do with safety,, and that he killed his adversary through mere necessity, in. order to avoid his own destruction.

“The jury then requested the judge again to state to them the law relating to excusable homicide.

“The judge repeated, in substance, what he had before-stated, with this further remark — that although it might be contended, from some of the authorities which had been cited,, that after a person assaulted had retreated as far as it was in his power, to avoid a battery or some bodily harm, it would-be excusable in him to protect himself from further injury by killing his adversary, yet he thought this was not a principle warranted by the law, but that the observations which-he had before made, and the limitations he had pointed out,. coincided with the ideas of Sir Michael Poster, and were grounded in reason, for, were it otherwise, the life of the citizen would be unnecessarily endangered, and would be taken away at too easy a rate.”

It is readily demonstrable that in the reported decisions generally throughout the country the treatment of the duty to retreat has been largely confined to cases in which a homicide was alleged to have been committed in self-defense.

The following expression has been quoted with noticeable liberality: “When it comes to a question whether one man shall íleo or another man shall live, the law decides that the former shall flee rather than the latter shall die.”

The primordial rule commonly known as “retreat to the wall” has been, however, for many'years accepted only in a figurative sense. In principle, a “wall” or “ditch” is reached whenever the assailed cannot in the existing conditions and circumstances of the. conflict (which may involve other than physical impediments) further recede without exposing himself to great peril. 1 Wharton-, Grim. Law (12th, ed.) 832, § 616.

A fairly comprehensive examination of the pertinent adjudications of the several states would seem to permit this summarization of the divergent applications of the anile relating to the duty to retreat. Many have entertained the view that the right to stand one's ground against one attempting a felony applies only to collateral felonies distinct from a felonious assault upon the defending slayer, so that the duty to retreat exists if there is an intent to kill or gravely injure the person assaulted. Others have resolved that the right to resist the commission of a felony without retreat applies to the resistance of a felonious assault as well as to collateral felonies. Still others have conceived that the common law rule of reta-eat, in its acceptation as a duty, is in its entirety inapplicable to American conditions. 2 1j B. A. (N. 8.) 50. Certainly no respectable authority has undertaken in the practical application of the rule to distort in effect excusable self-defense into probable self-destruction. The doctrine of “retreat to the wall” had its origin before the present more common use of guns. Today what might be a reasonable opportunity for escape in some circumstances, might in other and. different circumstances be reasonably certain death. State v. Gardner, 104 N. W. 971 (Minn. Sup. Ot. 1905), is an interesting case.

In our State we consult in homicide cases the statute, B. S. 2:138-6, if applicable, and the rule enunciated in State v. Bonofiglio, 67 N. J. L. 239 (E. & A. 1902). Vide, State v. Mount, 73 N. J. L. 582 (E. & A. 1906); State v. Mellillo, 77 N. J. L. 505 (E. & A. 1908).

It is appropriate to reproduce the words of former Chief Justice Gummere in State v. di Maria, 88 N. J. L. 416 (Sup. Ct. 1916); affirmed, 90 N. J. L. 341 (E. & A. 1917) :

“On principle the rule enunciated by the trial court appears to us to be the sound one. The proposition is undisputed, even in those cases in which the rule contended for by the plaintiff in error is approved, that where a defendant indicted for homicide sets up self-defense as an excuse or justification for his act, he must show that the killing was, or, reasonably appeared to be, necessary, in order to preserve his own life or to protect himself from serious bodily harm. This being so, it follows as a logical sequence that when it is shown that the person assaulted could have completely protected himself without taking the life of his adversary, and that it was apparent to him that he could So so, the absence of the necessity of killing for his own preservation is demonstrated. And how can it truly be said that no means of self-protection other than the killing of his adversary existed when it is shown that a safe way of •retreat was open to him, and that by taking advantage of it he could have avoided the threatened danger to life or limb ?

“But the question which of these rules should be followed by the courts of this State does not seem to us to be an open one. In the case of State v. Wells, 1 N. J. L. 424, decided more than one hundred and twenty-five years ago, it was declared that no man is justified or excusable in taking the life of another unless that act is, or reasonably appears to be, necessaiy, as the only means of avoiding his own destruction or some great injury/ In State v. Bonofiglio, 67 Id. 239, 245, it is stated by our Court of Errors and Appeals, that the rule laid down in the cited case has always been accepted by our courts as an accurate statement oí the right to take life in self-defense. Although the obligation to retreat, when this can be done safely, is not expressly declared in the opinion in the Wells case, it is, we think, necessarily implied in the declaration that a homicide is not justifiable or excusable unless the necessity for taking life is apparent as the only means by which the slayer can avoid his own destruction or some great bodily injury.”

But of immediate relevancy to the arguments made in the present case is the existence, vel non, of what is to be in law regarded as a positive duty to retreat where the defendant did not face a real or apparent danger of death or serious bodily injury. 'Here, again, some divergence, if not contrariety, of opinion is observable in the reported decisions.

We may initially refer to the conclusions of those who have presumably made a comprehensive survey of the American decisional law on the subject.

“The ancient doctrine which makes it the duty of a person assaulted to ‘retreat to the wall’ before he is justified in repelling force by force has been generally modified in the United States. The rule now generally accepted is that one who is assailed may meet force with force without retreating, so long as he uses only such force as is necessary, even though he might with absolute safety avoid the threatened injury or bodily harm by retreating.” 4 Am. Jur. lol, § 41.

“The doctrine of retreat as developed in homicide cases is not by the weight of authority regarded as applicable to cases involving a mere battery, especially where immediate action appears to be necessary for sell-protection.” 5 C. J. 150, § 230; 0 C. J. S. 948.

Stephen in the text of his Digest of Criminal Law (5lh ed.), § 132, states that “any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm.” See, note, Id., Art. 221.

Singularly, this subject appears to have been more frequently considered in Alabama than elsewhere. B. R. & E. Co. v. Baird, 130 Ala. 334, 352, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43 (Sup. Ct. 1901); Beyer v. Birmingham Ry., &c., Co., 186 Ala. 56, 64 So. 609, 610, 611 (Sup. Ct. 1914); Blankenship v. State, 11 Ala. App. 125, 65 So. 860, 862 (Ct. App. 1914); Adams v. State, 75 So. 641 (Ala. Ct. App. 1917).

Some brief quotations from the eases just cited will be informative of the conclusions therein expressed.

In Beyer v. Birmingham Ry., &c., Co., supra: “The peculiar doctrines of the criminal law with respect to the maintenance of a plea of self-defense in cases of homicide or assault with intent to kill are not applicable to non-felonious assaults, ^

“The imminence or apprehension of ‘serious bodily harm’ about to be inflicted is an indispensable element of defense to him who would excuse a homicide, or an attempt to commit one. This is so because, as matter of law, the killing of an assailant, without such peril, is excessive self-defense, and is such an abuse of the right as to prevent its valid assertion. Eor the purposes of self-defense which stops short of killing or attempting to kill, there is no duty to retreat, and no need for the apprehension of serious bodily harm; and it is for the jury to determine in each ease whether the defendant’s counter assault was protective and justifiable, or retaliatory and unlawful.”

In Blankenship v. State, supra: “Since handing down the foregoing opinion, we find that our Supreme Court in' a recent case * * * has expressly decided that the doctrine of retreat has no application and is not necessary to the right of self-defense in assault and battery cases, and this court has, therefore, ex mero motu restored the present case to the docket for reconsideration, and it results upon such reconsideration that our ruling on one of the charges mentioned in the opinion must, as a consequence, be changed. This charge is charge A given at the request of the state, which was erroneous, in that it placed on defendant the duty of retreat.”

In Adams v. State, supra: “While, ‘for the purpose of self-defense which stops short of killing or attempting to kill, there is no duty to retreat’ * * * it was the right oí the solicitor on cross-examination to inquire as to the conduct oí the defendant on the occasion of the assault, and the fact that the defendant made no effort to avoid the difficulty by leaving the place oE the difficulty was pertinent to the question as to whether he entered the fight willingly, which, if shown, would ■ cut off the right of the defendant to plead self-defense.”

Some quotations from relevant decisions of the courts of our neighboring states may appropriately be given a place here.

From Pennsylvania the following excerpt is found in Commonwealth v. Drum, 58 Pa. St. 9, 22 (Sup. Ct. 1868) : “It is certainly true that every citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from anyone who chooses to assail him. Without this freedom our liberties would be worthless. But the law does not apply this right to homicide. The question here does not involve the right of merely ordinary defence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take the life of another. Ordinary defence and the killing of another evidently stand upon different footing. When it comes to a question whether one man shall flee,or another shall live, the law decides that the former shall rather flee than that the latter shall die.”

In Commonwealth v. Roman, 52 Pa. Super. Ct. 64, 67 (1912), the court remarked: “It may be conceded that if the defendant had only used his naked hands in assaulting the prosecutor the court would not have been warranted in instructing the jury that before resisting, the defendant must have receded to the wail.”

In New York the Appellate Division in People v. Dankberg, 91 App. Div. 67, 86 N. Y. Supp. 423 (1904), was concerned with the propriety of an instruction to the jury which embodied in a definition of self-defense the statement: “He (the defendant) must, if he can, avoid the quarrel. In other words, if he can run away, it is his duty to do so. While that may not be popular with men when they are assaulted, yet that is the law of our state.” The Appellate Division critically com-mented: “While this charge was not excepted to, it stated a proposition of law which was applicable when a homicide had been committed, and not to the right of a person to defend himself when the defense does not consist of the taking of human life. I take it that a person who is assaulted by another without provocation has a right to use sufficient force to repel the assault, without running away, or believing that his life is in danger, or that he is in imminent danger of grievous bodily harm. In the defense of his person or property, irrespective of the belief that there is danger to his life or of grievous bodily harm, a person has a right to repel an assault, and use the necessary force for that purpose. He must see to it that he does not take life, except in a last extremity, and, if he does, to escape responsibility, he must prove that the taking of life was justifiable. But it is not the law that a person in a public street or public place is bound to submit to insults or indignities, followed by an assault, although neither his life nor bodily harm is seriously threatened, without resorting to sufficient force to repel the assault.” In accord, People v. Lopez, 238 App. Div. 619, 265 N. Y. S. 211 (1933).

Other decisions of interest are State v. Totten, 65 Mont. 203, 210 P. 1061 (Mont. Sup. Ct. 1922); People v. Moody, 62 Cal. App. 2d 18, 143 P. 2d 972 (Dist. Ct. App. 1943), to which may be added a reference to 1 Bishop, Crim. Law (9th ed.) 599, §§ 840, 841.

Strange to say, unless we regard the implications possibly deducible from the decisions in State v. Wells, supra; State v. Zellers, supra, and in State v. Jayson, 94 N. J. L. 467 (E. & A. 1920), to comprehend an obligation to retreat in instances of mere assault and battery, there appears to be no reported decision in New Jersey determinative of the precise point.

We have devoted considerable attention to the subject because it was so earnestly projected by counsel for the appellant at the argument of this appeal.

Eundamentally no person has a lawful right to lay hostile and menacing hands on another, without the authority of law to do so. On the other hand, the law does not require any one to submit meekly to the unlawful in diction of violence upon him.

In the consideration of the point debated in the present case we proceed no further than to state that in our opinion where one is not, or does not reasonably appear to be, assailed or threatened with imminent danger to life or great bodily injury, his acceptance of an available opportunity to retreat is not in the law of this State a positive duly. The opportunity to retreat is, however, in such casos a factual element to be considered together with all the other accompanying and surrounding circumstances in determining whether the person thus assailed used only such resistance as in all the relevant circumstances was necessary, or reasonably appeared to be necessary, for self-protection.

However, from the distant past it has been the law that a man who is assailed in his own dwelling is not under any obligation to retreat. More than 250 years ago it was said by Lord Chief Justice Hale that in case a man “is assailed in his own house, he need not llee as far as he can, as in other eases of se def endeudo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.” 1 Hale’s Pleas of fhe Crown 486. In Beard v. United States, supra, the rule was held to extend not merely to one’s dwelling house but also to the surrounding grounds. Cf. State v. Zellers, 7 N. J. L. 220, 243 (Sup. 01. 18,24).

The rule has been extended to embrace one’s office or place of business. Jones v. State, 76 Ala. 8 (Sup. Ct. 1884); Harris v. State, 96 Ala. 24 (Sup. Ct. 1891); Cheney v. State, 172 Ala. 368, 55 So. 801 (Sup. Ct. 1911); Chaney v. State, 178 Ala. 44, 59 So. 604 (Sup. Ct. 1912); People v. Tomlins, 213 N. Y. 240 (Ct. App. 1914).

Moreover the same rule prevails notwithstanding the attack proceeds from some other occupant of the house, office, or place of business. Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L. R. A., N. S., 996, 18 Ann. Cas. 636 (Sup. Ct. 1909); Haynes v. State, 17 Ga. 465 (Super. Ct. 1854). Be husband and wife, Hutcherson v. State, 165 Ala. 16 (Sup. Ct. 1909).

Our comprehensive review of this case in all its aspects guides us to the conclusion that the judgment of conviction should be reversed.


author: Wixjjam J. Bbennan, Jb., J. A. D.

text:
    JAMES GIACCHI, PETITIONER-RESPONDENT, v. RICHMOND BROTHERS COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950
    Reargued March 5, 1951 —
    Decided March 14, 1951.

      Before Judges McGeeiian, Jayne and Wm. J. Bbennan, Jb.

      Mr. Walter X. Trumbull argued the cause for petitioner-respondent.

      Mr. Isidor Kalisch argued the cause for respondent- - appellant.
   The opinion of the court was delivered by

Wixjjam J. Bbennan, Jb., J. A. D.

We granted a rehearing on the motion of the employer, whose appeal to this court sought reversal of the judgment of the Essex County Court and the entry of judgment in its favor. We reversed, but remanded to the Division of Workmen’s Compensation for rehearing and a new determination on the employee’s petition filed August 6, 1949. Our decision is reported in 11 N. J. Super. 76 (1951).

We granted the rehearing because the question of whether in the circumstances of this case this court had the power to remand to the Division of Workmen’s Compensation for rehearing and a new determination had not been presented at the hearing in this court on the appeal, either in the briefs or on the oral argument.

The employee’s petition was for compensation for augmented incapacity. His permanent partial disability had been fixed at 60 per cent under a previous award made July 27, 1948. That award was the predicate of the instant petition which initiated what was essentially a new proceeding based on a new factual situation. Drake v. C. V. Hill & Co., 117 N. J. L. 290 (E. & A. 1936). There was evidence offered by the employee comparing his condition at the time of the previous award with that at the time of the hearing and that evidence was accepted by both the deputy director and the County Court as proof that the employee “suffered a comparative increase of forty per cent of total in permanent disability and has thereby become totally and permanently disabled.” The evidence principally relied on was that of Dr. Goldberg, who testified for petitioner both at the hearing which resulted in the previous award and at the hearing in this proceeding. He gave evidence at the earlier hearing that in his opinion the employee’s permanent partial disability was then 75 per cent and, with that finding as his base, testified that from that time to the present there had been “an increase of approximately twenty-five per cent of total.” His testimony was sharply controverted bjr that of the employer’s medical witnesses. None of the testimony, however, admeasured the increase in terms of an after-occurring addition to the 60 per cent permanent partial disability adjudicated by the earlier determination. Hopler v. Hill City Goal & Lumber Co., 5 N. J. 466 (1950). In addition, Dr. Goldberg admitted that the alleged increase was not entirely causally connected with the accident. In the circumstances, the award, based upon total disability, although concurred in by the two tribunals, could not be sustained on the evidence. In the exercise of our power to make independent findings of fact we could not, in the state of the record, determine any specific amount of increase even if we concluded that the testimony as to increase met the test laid down in the Hopler case.

. Nevertheless, the fact that both tribunals were in agreement that an increase in disability had occurred and that the employee was now totally disabled makes it reasonable to suppose, in light of Dr. Goldberg’s testimony that a “majority” of the increase was related to the accident and that only a “minor” part was not, that upon further proceedings the employee has a fair prospect that he may be able to establish that he did suffer an increase in incapacity due to the accident. On the whole justice requires that, in the circumstances, there should be a remand. This is not -a case where there is a complete absence of proof to support the claim. No case under the Workmen’s Compensation Act in which the employee has received an award in the Division of Workmen’s Compensation should be determined against the employee upon appeal, either in this court or in the County Court, when it appears, as here, that the employee has what may be a just claim but that sufficient evidence has not been adduced before the deputy director upon which to admeasure the compensation, if any, to which he is entitled. The correct practice in such case is to remand to the Division of Workmen’s Compensation for a new determination. Tsoukalas v. Bolton Mfg. Co., 130 Conn. 658, 37 A. 2d 357 (Supreme Ct. of Errors, 1944); Annotation, 146 A. L. R. 123. “The misconception of counsel, or even of counsel and the deputy commissioner, as to the objective of such a proceeding, or as to the statutory procedure, will not prevent a correction and a restoration of the case to its proper status to the end that the compensation which ought, under the statute, to be paid will be paid.” Hawthorne v. Van-Keuren & Son, 127 N. J. L. 501, 504 (Sup. Ct. 1941).

Whether the remand should be with or without direction for a new hearing is made to depend upon what justice requires in the particular ease. Cf. Patton v. American Oil Co., 13 A. J. Misc. 825 (Sup. Ct. 1935); affirmed, 116 N. J. L. 332 (E. & A. 1936); Gagliano v. Botany Worsted Mills, 13 N. J. Super. 1 (App. Div. 1951). In this ease fairness to both parties requires a new trial on all issues because, while the finders of fact accepted as true the employee’s proofs and rejected those of the employer, nonetheless, the employer’s evidence tended completely to negative the existence of any increase of disability in any amount. We are not constrained in this case to remand merely for determination of the extent of the amount of the increase related to the accident. Both parties in the circumstances should be free fully to relitigate the questions both whether there has been an increase in disability and the extent of any such increase which is properly attributable to the accident.

The employer’s counsel contends, however, that we are powerless to remand where a case has been fully tried and both parties have had a full opportunity to adduce proofs favorable to them and there is no showing of fraud or newly discovered evidence. He insists that like the former Supreme Court we are obliged by the Certiorari Act, B. S. 2 :81 — 8, to make findings of fact as well as of law (Stetser v. American Stores Co., 124 N. J. L. 228, 229 (E. & A. 1940) ; Rubeo v. Arthur McMullen Co., 117 N. J. L. 574, 577 (E. & A. 1937)), and that if in the state of this record the amount of disability for which the employer is liable cannot be determined by us, it is our duty to enter a judgment in the employer’s favor. He argues that by force of that statute as interpreted in the decisions a remand is proper only where the record is incomplete because the right of a party to adduce proofs has been curtailed by an erroneous dismissal in the Division (Jayson v. The Pennsylvania Railroad Company, 101 N. J. L. 159 (E. & A. 1925)), or by improper exclusion of material proofs (Paluk v. United Color & Pigment Co., 134 N. J. L. 601 (Sup. Ct. 1946), or where the Division has failed to determine meritorious jurisdictional issues (Mutual Chemical Co. of America v. Minniti, 121 N. J. L. 449 (Sup. Ct. 1938); Hawthorne v. VanKeuren & Son, 127 N. J. L. 501 (Sup. Ct. 1941)).. He asserts, “I have failed to find a single ease where a complete record was made by both parties, later reviewed, which did not terminate with a judgment in the reviewing court disposing of the merits of the controversy or a remand with instructions to lower court to enter a judgment consistent with findings of upper court.”

Nothing in the Compensation or Certiorari Acts curtailed, if, indeed, constitutionally they could have curtailed, the powers of remand of the former Supreme Court, and, even more clearly, they have no such effect upon the powers of this court. The determinant in the former Supreme Court, as now in this court, whether to make a final disposition of the controversy, or to remand for further proceedings, either with or without a new hearing, was, in the workmen’s compensation cases, as in other classes of actions, what the interests of justice in the given case required, and the exercise of the power by the former Supreme Court and by this court was not and is not limited to the situations enumerated by counsel. Patton v. American Oil Co., supra; Ruoff v. Blasi, 117 N. J. L. 47 (Sup. Ct. 1936); Rojeski v. Pennington Dairy Farms, Inc., 118 N. J. L. 335 (Sup. Ct. 1937); Calicchio v. Jersey City Stock Yards Co., 125 N. J. L. 112 (Sup. Ct. 1940). Any suggestion in the cases that there may perhaps be a limitation upon the remand power in workmen’s compensation eases is upon the exercise of that power by the former Court of Common Pleas. Huber v. New England Tree Expert Co., 137 N. J. L. 549 (Sup. Ct. 1948); affirmed, 2 N. J. 53 (1949); but cf. Grant v. Grant Casket Co., 137 N. J. L. 463 (Sup. Ct. 1948); affirmed, 2 N. J. 15 (1949). That court, however, unlike the former Supreme Court and this court, was not a court of general appellate jurisdiction. It is familiar appellate practice in the general appellate courts to remand causes for further proceedings and further evidence where justice demands that course. Lehigh Valley Railroad Company v. McFarland, 44 N. J. L. 674 (E. & A. 1882); Arenson v. Skouras Theatres Corp., 131 N. J. L. 303 (E. & A. 1944); Ford Motor Company v. National Labor Relations Board, 305 U. S. 364, 373, 83 L. Ed. 221, 229 (1939). The governing principle was laid down by Chief Justice Depue in the McFarland case:

“* * * The court is not restricted to a general affirmance or reversal, and may, on a reversal of the judgment below, give a new judgment in favor of the plaintiff in error, or award a venire de novo, as the justice of the case may require. If the whole merits of the case are fully and finally determined by the decision of the court above, the court will finally decide the controversy by giving such a judgment in favor of the plaintiff in error, as should have been given in the court below. On the other hand, if the judgment is not reversed upon the whole merits of the case, but upon some collateral or incidental question not involving the substantial grounds of the litigation or covering the whole case, the court, in reversing the judgment below, will simply direct a venire de novo, in order that the case may be put on a retrial upon the merits.”

Portlier, the requirement under R. 8. 2 :81-8 that the former Supreme Court make independent findings of fact as well as of law has lost its force as applied to this court under the reorganized judicial system. That requirement has been superseded by Rule 3:81-13 (cf. Rules 1 :2-20 and 4:2-6), Winberry v. Salisbury, 5 N. J. 240 (1950). We are empowered under the mentioned rules to review the facts and make independent findings thereon, but this power is permissive and a litigant may not as a matter of right require our exercise of it. Donofrio v. Haag Brothers, Inc., 10 N. J. Super. 258, 262 (App. Div. 1950); and see discussion by Mr. Justice Heher in his concurring opinion in Temple v. Storch Trucking Co., 3 N. J. 42, 48 (1949).

Let the mandate stand. No costs to either party.


author: Bigelow, J. A. D.

text:
    SAKS & COMPANY, PLAINTIFF-RESPONDENT, v. HERBERT H. BENNETT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951 —
    Decided March 19, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Abrahatn Levine argued the cause for the respondent.

      Mr. James A. Major argued the cause for the appellant (Messrs. Major •& 0arisen, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The respondent, Saks & Company, sued Herbert II. Bennett and wife for goods sold. It recovered several judgments against Mr. Bennett for $344 and against Mrs. Bennett for $27. The former appeals.

All the articles for which judgment was rendered against the husband, were bought by the wife. To hold the husband liable, it must be shown that the wife was acting as his agent in making the purchases or that the articles were necessaries. Davis v. Freeman, 2 N. J. Misc. 79 (Sup. Ct. 1924).

“Neither husband nor wife, by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority, may indicate it in the case of husband or wife.” Restatement, Agency, § 22(b). In the case before us, Mrs. Bennett does not appear to have contracted in her husband’s name. Her purchases were charged to her and not to him; for most of them she signed the 'sales slip in her own name alone. Nevertheless the plaintiff was not precluded from showing that the husband was an undisclosed principal. But there was no evidence that he authorized his' wife to buy, as his agent, the articles which are the subject of the suit, or to make him liable for the price. The judgment against appellant cannot be upheld on principles of agency as distinguished from his liability as husband for necessaries supplied to the wife.

While a husband’s liability for necessaries furnished his wife, arises from his failure to perform his duty properly to support her, Wanamaker v. Ulizio, 102 N. J. L. 166, (E. & A. 1925), the liability is often expressed in terms of agency. Thus it is said that for the purchase of articles of domestic use, the law regards the woman as her husband’s agent. Wilson v. Herbert, 41 N. J. L. 454 (Sup. Ct. 1879). When the wife procures on credit “such things as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the'style in which the husband chooses to live,” her husband is prima facie liable. Vusler v. Cox, 53 N. J. L. 516 (Sup. Ct. 1891). Likewise, when she buys a radio or employs a domestic servant, lie must pay. Goldberg v. Choma, 9 N. J. Misc. 1203 (Sup. Ct. 1931) ; Auten v. Johnston, 115 N. J. L. 71 (Sup. Ct. 1935).

But the husband may have a good defense for he need pay only once. “When he has supplied his wife with those necessaries which their station in life and his financial standing entitle her to have at his hands or has furnished her with moneys sufficient to enable, her to purchase them for herself, he is under no obligation to pay bills incurred by her for what would have been necessaries if he had not already supplied her therewith.” McCreery & Co. v. Marlin, 84 N. J. L. 626 (E. & A. 1913). Cf. Feiner v. Boynton, 73 N. J. L. 136 (Sup. Ct. 1905). The McCreery case also establishes the rule that the tradesman must, at his peril, inquire into the circumstances in order to ascertain whether the husband will be liable when his wife goes shopping. Where there were already two radios in their home, a third radio bought by the wife was not considered a necessary for which the husband could be made to pay. Gruenberg v. Douglas, 118 N. J. L. 398 (Sup. Ct. 1937).

In the case at bar, the items total $514, against which payments on account reduce the balance to the sum for which judgment was rendered. Of the charges, $167 was the cost of articles for the use and comfort of Mrs. Bennett’s baby granddaughter, who was not a member of the Bennett household and was not the grandchild of appellant. Even so, appellant had given his wife $167 in cash to buy these very items, but she charged them instead. Certainly he is not liable a second time. The other items in the account were sundry articles, mostly clothing, which Mrs. Bennett testified she bought for her own use. This was in the months of March, May, June and July, 1949. In the year 1949, she received from her husband $4,125. In addition, he provided the house and an automobile; he paid for heat and light, telephone, the wages of a full-time maid. He paid for at least some of the food. The testimony of the appellant was uncontradieted that during the period of the purchases in question, his wife never complained that the amount of money received by her was insufficient. We are satisfied that the evidence proved that appellant properly supported his wife and that he is not liable for the purchases which were charged to her by Saks & Company.

The judgment is reversed.


author: Eastwood, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH MARTINEK AND WALTER MARTINEK, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1951
    Decided March 14, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Jír. Paul T. Huckin argued the cause for the plaintiff-respondent (Mr. Francis V. D. Lloyd, attorney).

      Mr. Albert 8. Gross argued the cause for the defendants-appellants.
   The opinion of the court was delivered by

Eastwood, J. A. D.

The defendants were convicted of the crime known as “bookmaking” in violation of. R. 8. 2:135-3, as amended, L. 1940. Their asserted grounds for reversal are: (1) the erroneous admission of a “card, betting slips and two letters” and (2) the verdict was against the weight of the evidence.

The alleged bookmaking was conducted at the premises of the defendant Joseph Martinek, 151 Washington Avenue, Little Perry, Bergen County, which was raided by members of the Bergen County Prosecutor’s Office on April 19, 1950.

The undisputed facts are that the defendant, Joseph Martinek, was standing on the sidewalk in front of his “Pood Products” store and accompanied the officers into the rear of the store building, which is separated from the front portion thereof by a partition. The defendant, Walter Martinek, was found seated at a table in the rear portion of the building, on which there was a telephone, radio, a number of betting slips, a copy of “Uational Racing Program,” which contained the names and location of horses racing on April 19, 1950, corresponding with the betting slips on which-parlay bets were recorded; also, cards setting forth the odds on different types of plays. The radio was in operation. The betting slips were identified by Detective Stewart as recordings of parlay bets on horse racing with the track and horses and the bets noted for each of the designated horses. In the front part of the store cards were found bearing the telephone numbers of defendant’s store, and taken from Walter Martinek’s wallet were cards setting forth various betting odds on different types of play and on which was inscribed “Joe M.” A betting slip was found in a jacket belonging to defendant, Walter Martinek; also in the rear part of the premises two letters were found, one addressed to “Joe and Wally” referring to the writer’s losses of $400 and the other addressed to Joseph Martinek reciting the enclosure of $300 in money orders and referring to betting at the writer’s location. Approximately $420 in cash was taken from the person of Joseph Martinek, $59.61 from Walter Martinek, and $16 in nickels was found in the rear of the premises. During the 45 minutes that the raiding party remained, one telephone call for Joseph Martinek was received, which concerned an order for potato chips. The defendants did not offer airy testimony in their own behalf.

The court’s admission of the “card, betting slips and two letters” was not erroneous. The defendants contend that the cards containing the names of the horses, the track locations and the. bets on each horse named were not authenticated or identified with either of the defendants and their admission was erroneous. The betting slips were identified by Detective Stewart (whom the defendants conceded was an expert in bookmaking cases), as recordings of bets made on April 19, 1950, on di fferent horses running at different race tracks throughout the country. “Property found near the scene of the crime, and concerning which there is evidence showing or tending to show its ownership or possession by accused when the crime was committed, may be exhibited to the jury, as may any property sufficiently identified which throws light upon the crime or connects accused with it, and is shown to have come from his possession or to have been found on his premises, or, there bring sufficient evidence to implicate him, on the premises of a eo-coiispirator.” 22 C. J. S., Criminal Law, § 710, p. 1206; State v. Luster, 71 N. J. L. 586 (E. & A. 1905); State v. Morehous, 97 N. J. L. 285 (E. & A. 1922); State v. Sage, 99 N. J. L. 229 (E. & A. 1923); State v. Hauptmann, 115 N. J. L. 412 (E. & A. 1935). The admission of betting slips, racing forms and other gambling paraphernalia found on the premises in the possession of the accused has generally been recognized by our courts as evidence from which the jury might conclude the guilt or innocence of the accused on an indictment for bookmalring. State v. Tuzenew, 15 N. J. Misc. 584 (Sup. Ct. 1937) ; affirmed, State v. Suckow, 120 N. J. L. 190 (E. & A. 1938) ; State v. De Falco, 8 N. J. Super. 295 (App. Div. 1950); State v. Guida, 118 N. J. L. 289 (Sup. Ct. 1937); affirmed, 119 N. J. L. 464 (E. & A. 1938); State v. Morano, 133 N. J. L. 428 (Sup. Ct. 1945); affirmed, 134 N. J. L. 295 (E. & A. 1946).

The defendants contend that neither the authenticity nor genuineness of the two letters from a third person were established by any evidence and their erroneous admission was manifestly prejudicial and injurious to the defendants’ rights, citing the case of State v. MacFarland, 83 N. J. L. 474 (E. & A. 1912), in support of their contention. The State contends that the letters were not offered to prove the transactions mentioned therein nor as direct proof of the offense charged in the indictment. In the MacFarland ease the court held that the letters there written by a paramour to the defendant accused of murder “were admissible in evidence for the purpose claimed by the state, viz.: ’To repel the presumption arising in favor of the prisoner from the fact that the deceased was his wife and to show a motive for the commission of the crime,’ ” but not admissible against the defendant for the purpose of establishing the truth of the contents thereof. Professor Wigmore (Wigmore on Evidence, 3d ed., § 1073, note 2, p. 92) in discussing the MacFarland case states:

“The following case is peculiar: 1912, State v. MacFarland, 83 N. J. L. 474, 83 A. 993 (wife murder; the defendant’s intention to rid himself of his wife being in issue, letters of his paramour addressed to him, referring to his expressed intention to get a divorce, and retained by him, were held inadmissible for the purpose, as not having been impliedly assented to; five judges dissenting; the dissent is clearly correct; the majority opinion overstrains the test of admissibility; mere possession should suffice, leaving the possessor to explain if he can.”

However, we are bound by the rule laid down in the MacFarluud case. Under that authority, the letters being addressed to defendants and found in their possession were admissible “as may any property sufficiently identified which throws light upon the crime or connects accused with it.” 22 C. J. 8., p. 1206, supra. In the admission of the letters in question, we find that the defendants suffered no manifest wrong or injury.

Our review of the record convinces us that the verdict was not against the weight thereof; that there was sufficient competent evidence to support the findings of the jury. “It is not the function of this court to weigh the evidence. The convictions rest upon a basis of rational inference, tantamount to legal proof of the fact, and are therefore supported by the evidence.” Levine v. State, 110 N. J. L. 467 (E. & A. 1933). “It is the settled law of this State in order to justify the setting aside of a verdict as being against the weight of the evidence, this must be so clear as to give rise to an inference it was the result of mistake, passion, prejudice or partiality.” State v. Auld, 2 N. J. 426 (Sup. Ct. 1949) ; State v. Monia, 132 N. J. L. 91, 96 (Sup. Ct. 1944); State v. Guida, supra; State v. Lederman, 112 N. J. L. 366, 370 (E. & A. 1934). We find no such inference here.

The judgment is affirmed.


author: William ,T. Betels an, Je., J. A. D.

text:
    FRANK DUDA, AN INFANT, BY HIS GUARDIAN AD LITEM, MARION DUDA, AND MARION DUDA, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. JOSEPH GAINES AND THEODORE COOPER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951 —
    Decided March 21, 1951.
    Before Judges MoGeeiian, Jayne and William J. Been- ' nan,' Jr.

      Mr. Mario Turtur argued the cause for plaintiffs-appellants.

      Mr. William N. Campbell argued the cause for defendants-respondents.
   The opinion of the court was delivered by

William ,T. Betels an, Je., J. A. D.

The defendants are teachers at the Linden High School and coaches of the school football team. The infant plaintiff, a student at the school and a candidate for the football team, injured his right shoulder during tackling practice. This suit was brought in the Union County Court for damages for the alleged negligence of defendants in failing to obtain'medical assistance for him “as the emergency which existed by reason of the accidental bodily injuries to the plaintiff reasonably required.”

The trial court dismissed the action on defendant’s motion at the close of plaintiffs’ proofs, and plaintiffs appeal from the consequent judgment.

The parties tried the case under a stipulation incorporated in an amendment to the pretrial order The stipulation was, “as to the law covering the case, namely both parties agree that the law is that the teachers, if they were athletic coaches, and were in charge of the boy, as such, were required to use reasonable care in case of an accident constituting an emergency, which reasonably appeared to them, as reasonable men, to require immediate medical attention, if no reasonable opportunity presented itself under those circumstances to first notify the parents, or either of them, of the emergency.”

We deal with this appeal on the theory upon which the case was tried by the agreement of the parties. Their stipulation in the pretrial order limiting the extent of defendants’ legal duty to summon medical aid to a situation in which an emergency was presented eliminates as a matter for decision the question whether that was the limit in law of the scope of the teachers’ legal duty in the circumstances. We are not to be understood, therefore, as intimating any view upon that question.

Among the grounds upon which the trial court rested its action in granting the motion for dismissal was that, accepting the plaintiff's proofs as true and giving him the benefit of all legitimate inferences which might be drawn therefrom, such proofs as a matter of law did not support the existence of the alleged emergency. Our review of the record satisfies us that fair-minded men could not honestly differ as to the conclusions to be drawn from the proofs in that regard and that therefore the dismissal was proper.

The emergency from which would arise the stipulated legal duty can be said to exist when a reasonable man having the knowledge of facts known to the teachers or which they might reasonably be expected to know would recognize a pressing necessity for medical aid, and the dictates of humanity, duty and fair dealing would require that there be put in the boy’s reach such medical care and other assistance as the situation might in reason demand so that the pupil might be relieved of his hurt and more serious consequences be avoided. See Szabo v. Pennsylvania Railroad Company, 132 N. J. L. 331 (E. & A. 1944). There is no emergency in the absence of proofs from which it is reasonably inferable that the decision whether to secure medical aid and the choice of the physician cannot' safely await parental determination. Cf. Guerrieri v. Tyson, 147 Pa. Super. 239, 24 A. 2d 468 (Super. Ct. 1942).

The alleged emergency in this case is said to have existed on an unspecified day in October, 1947. On September 20, 1947, the infant plaintiff while practicing picking up fumbles dove at a football, hit his shoulder against the ground and “knocked it out of place.” On that occasion defendant Cooper “snapped it back in place” and put the boy’s arm in a sling. The next day Cooper sent the boy to the school physician, Dr. Williams, who “just felt the shoulder * * * put it in a sling and * * * said ‘You can go back and play in about two weeks.’ ” Two weeks later, on the October day in question, the boy reported to Mr. Cooper that the doctor had said he could “resume practice with the football squad” and Cooper permitted him to put on his football equipment and participate in practice. The boy then reported to the defendant Gaines, who was supervising tackling practice, and on the first occasion that he tackled another player “my shoulder came out of place again.” He testified that he lay there and could not get up, that Gaines picked him up and “when Mr. Gaines picked me up, it snapped in by itself.” Gaines felt underneath the arm and moved it in different ways. When the boy told him the arm hurt Gaines told him to go home. The boy returned to the clubhouse to change his clothes and saw Cooper. He told Cooper he had hurt his shoulder. Cooper then felt around the arm and told him, “I am afraid you won’t be able to play football for the rest of the year, you better turn your uniform in.” The boy testified that he asked Cooper, “Should I go and see the doctor again” and Cooper said, “No you don’t have to go this time.” Cooper put the arm in a sling, another boy helped him to dress and he then walked home. The other boy carried his books, lie wore the sling for three days thereafter at home and in the presence of his parents and did not miss any days at school.

It is clear that this evidence and the inferences which may legitimately be drawn therefrom in no wise could support a finding of an immediate pressing necessity for medical aid for the boy before he went home and that the decision whether to obtain such aid could not await his parents’ consideration. He was suffering pain from the injury but was fully possessed of his faculties, was able to walk unattended the 125 yards from the field to the clubhouse and after changing clothes to walk home. In these circumstances the facts do not reasonably permit opposing conclusions by fair-minded men as to whether or not the boy was then in urgent need of medical attention. The proofs presented nothing for the jury’s determination nor did they make out a prima facie case which called for a defense.

A flirmed.


text:
    JOHN BERTONE, PLAINTIFF-APPELLANT, AND CHARLES WHITE, PLAINTIFF, v. MARK A. SULLIVAN, Jr., PRESIDING JUDGE OF THE HUDSON COUNTY DISTRICT COURT, AND THE CIVIL SERVICE COMMISSION OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued- March 5, 1951 —
    Decided March 21, 1951.

      Before Judges Jacobs, Eastwood and Btgelow.

      Mr James Rosen argued the cause for the plaintiff-appellant.

      Mr. Frederick J. Gassert argued the cause for the defendants-respondents (Mr. .Daniel T. O’Regan, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The dispositive issue here concerns the authority of the presiding judge of the Hudson County District Court to terminate the services of the plaintiff-appellant in the performance of the duties of a sergeant-at-arms.

In May, 1947, pursuant to the provisions of L. 1947, c. 186, the appellant was placed on the payroll of the First Judicial District Court of Hudson County at the salary of a sergeant-at-arms. The 1947 act provides, inter alia: “In all judicial district courts in the counties of the first class, * * * having constables, such constables, if for ten years next preceding July fourth, one thousand nine hundred and forty-seven, have performed the duties required of sergeants-at-anns of such judicial district courts, they shall he entitled to all the rights and privileges of sergeant-at-arms of such judicial district courts and shall he entitled to receive the same compensation as is provided for sergeant-at-arms.” The appellant continued to receive such salary until January 31, 1949, when the defendant, presiding judge, Mark A. Sullivan, Jr., for reasons of efficiency and economy, terminated the service of the appellant from the further performance of the duties of sergeants-at-arms and directed that he “remain attached to the court as a constable on a fee basis only.” See R. 8. 2 :8-17.

The appellant contends that the order of removal was invalid; that the presiding judge had no power by statute or rule to impose the order in question and that if the power of removal existed at all, it could only be exercised by a majority of all the judges of the county district court and not by the presiding judge alone.

On December 31, 1948, by virtue of the provisions of L. 1948, c. 264, the several district courts of Hudson County were consolidated and became branches of the Hudson County District Court. The Supreme Court designated the Honorable Mark A. Sullivan, Jr., as presiding judge. Judge Sullivan determined that the business of the court did not require-the services of 22 persons who were then performing the duties of sergeants-at-arms. Accordingly, he removed five of the constables from the payroll. It is undisputed that Bertone had never been appointed a sergeant-at-arms, but was merely receiving that salary by virtue of the provisions-of L. 1947, c. 186.

Following Judge Sullivan’s order, the appellant communicated with the Civil Service Commission protesting his removal. The president of that commission informed him that he had no civil service status and, therefore, the commission-lacked jurisdiction to entertain his appeal. The appellant' then instituted this action in the Law Division of the Superior Court. The Law Division considered the matter on a stipulation of facts entered into by the parties and rendered' a judgment affirming the action of Judge Sullivan.

The appellant does not argue that he possessed any civil service status nor does he claim any rights and privileges other than those he may have under the 1947 act.

B. S. 2 :-8-31 of the District Court Act provides: “The-judge of any district court may appoint one or more sergeants at arms to attend the sittings of the court, preserve order therein, and perform such other duties as the appointing-judge may prescribe, and who, when appointed, shall hold' office during the pleasure of the judge appointing them.” Except as affected by Buie 7:50-2 and Buie 7:51-3, these-sections of the statute remained unaltered at the time of the-issue in the case under consideration. B. 8. 2:8-31 was amended by L. 1950, c. 219, sec. 1, but that amendment does not affect this issue. By virtue of L. 1948, c. 264, the county district court succeeded to the powers and duties of the former district court.

Bule 7:50-2 governing the county district courts, provides that: “The judge, and in courts having branch parts, the presiding judge, shall be the administrative head of the district court and shall make all appointments to the court as may be required by law to be made by the judge thereof, or authorized by the Buies of the Supreme Court.” Buie 7 :51-3 empowers the judge or presiding judge to prescribe the duties of sergeants-at-arms.

It is apparent that viewed in the most favorable light, the rights and privileges, if any, acquired by the appellant under the 1947 act, were only of a temporary character and he was entitled to the compensation in question only so long as he was permitted to perform the duties of a sergeant-at-arms. We are satisfied that Judge Sullivan possessed the authority to terminate appellant’s service and that such authority was properly exercised. In the case of Barringer v. Miele, 6 N. J. 139, 144 (1951), it was held that: “The authority to make an appointment that is temporary carries with it the power to terminate the employment when the conditions which require the appointment have ceased.”

Dismissals and demotions of public officials when done in good faith and for reasons of economy and efficiency, have been held to be proper by our courts. Runge v. West Hoboken, 88 N. J. L. 301 (E. & A. 1915) ; Durkin v. Newark Fire Com’rs., 89 N. J. L. 468 (Sup. Ct. 1916); Reck v. Commrs., North Bergen, 110 N. J. L. 173 (E. & A. 1933); Ziegler v. Hackensack, 113 N. J. L. 215 (Sup. Ct. 1934), affirmed 111 N. J. L. 186 (E. & A. 1935); Barringer v. Miele, supra.

We have considered the other points argued by the appellant but do not consider them meritorious.

The judgment is affirmed.