author: Persicie, J.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PROSECUTOR, v. BENJAMIN B. WALLEN, RESPONDENT.
    Submitted October 16, 1936
    Decided December 10, 1936.
    Before Brogan, Chief Justice, and Justices Case and PERSKIE.
    For the prosecutor, David T. Wilentz, attorney-general (John F. Bruther, of counsel).
    Fox the respondent, Martin Bloom.

   The opinion of the court was delivered by

Persicie, J.

The question in this cause is whether section 10 of chapter CCCVI (Pamph. L. 1894, p. 454 (act regulating the practice of medicine and surgery) 3 Comp. Siat., p. 3333), as amended by chapter 221 (Pamph. L. 1921, p. 702; Cum. Supp. Comp. Stat. 1911-1924, p. 1867, § 127-31), applies to a duly qualified and licensed physician of this state.

The complaint of the state board of medical examiners charged that Benjamin B. Wallen of the city of Wildwood, Cape May county, New Jersey, did, “during the months of June, July, August and September, a. d. nineteen hundred and thirty-five, at the city of Wildwood * * * violate section ten of [act of 1894, as amended in 1921, supra] * * * in the following respect, to wit: that the said Benjamin B. Wallen, being the holder of a license to practice medicine and surgery in the State of New Jersey, at the time and place aforesaid, did give aid and assist a person, who was not at said time and place the holder of a license to practice medicine and surgery in said State, to practice medicine and surgery in the State of New Jersey, within the meaning of section eight of said act, as amended, contrary to and in violation of said section ten of said act, and against the form of said statute.” On that complaint a warrant was issued and defendant furnished the required bail. The record further discloses that thereafter a motion was made in the Court of Common Pleas of Cape May county to dismiss the complaint and warrant, on the following grounds:

“1. That the statute does not apply to this defendant and no reasonable interpretation of the statute will make section 10 apply to a licensed physician.
“2. That the complaint is vague and does not apprise the defendant of the charge which he has to meet.
“3. That the warrant was defective because it was directed to the inspector of the state board of medical examiners.”

The trial judge, being of the opinion that the complaint was not sufficient in law, for the aforesaid grounds, ordered that the complaint be dismissed and that final judgment be entered in favor of the defendant and against plaintiff. The writ of certiorari seeks to review the judgment of the court below.

The act of 1894, as amended by the act of 1921, supra, sets up standards for the qualifications to practice medicine and surgery; it regulates the practice of said professions and provides penalties for the violation thereof. Section 10 thereof, and the one here involved, provides that “any person hereafter commencing or continuing the practice of medicine and surgery in any of its branches in this State without first having obtained and filed the license herein provided for, or contrary to the provisions of this act, * * * or give aid or assist any person not regularly licensed to practice medicine or surgery in this slate * * * shall be liable to a penalty of two hundred dollars which penalty shall be sued for and recovered by and in the name of the State Board of Medical Examiners of New Jersey.” (Italics supplied.)

First: Respondent’s position below, and here, is, in substance, that this section was not intended to apply to licensed physicians. That position is rested on the grounds that it merely evinces a legislative intent to protect the public at large from being treated by a person who is not a licensed physician; that if the legislature had intended to punish a licensed physician for giving aid or assistance to an unlicensed person it would not have omitted, but rather would have included, such action in the enumerated causes (section 6 of the act, 3 Comp. Slat., p. 3331, § 6) for refusing or revoking a physician’s license; that a physician simply cannot aid or assist anyone to unlawfully practice medicine or surgery, for when he responds to a call made upon him professionally he is actually engaged in the practice of medicine, and is necessarily doing that which he has a perfect right to do.

Prosecutor concedes the force of appellee’s last contention. It says: “Admittedly, it is difficult to perceive the guilt of a doctor on this charge,” but argues that it was denied the right to present any evidence to support the charge; that there might well be a situation — for instance, an agreement between a licensed physician and an uidicensed person — which would make even the former amenable to this (tenth) (3 Comp. Slat., p. 3333) section of the act. That may well be so. And if so, surely a licensed physician would also come within the phraseology thereof. It applies to “any person.” Nor, in our opinion, does the fact that the legislature did not include the giving of aid or assistance to an unlicensed person to practice medicine or surgery in the causes for revoking a physician’s license foreclose the application of this section to a duly licensed physician. The legislature may have concluded that the act of giving aid or assistance contrary to section 10 was not sufficient cause for the revocation of a physician’s license but was sufficient not to go entirely unpunished and therefore imposed substantial money penalties of $200 for a first violation and $500 for subsequent violations as therein provided.

While no case in our state, in point, has been brought to our attention there are many eases, in other jurisdictions, in which the revocation of a physician’s license for aiding an unlicensed person has been sustained. Davis v. Board of Registration, 251 Mass. 283; 146 N. E. Rep. 708. See cases collated in the annotation — Physicians—Revocation of License — 54 A. L. R. 1516; 82 Id. 1187.

True, the issue at bar does not relate to the revocation of a physician’s license; it relates to the imposition of a penalty on a licensed physician. But it is equally true that the basic question (whether a licensed physician can be guilty of aiding or assisting an unlicensed person to practice medicine or surgery) is present in each instance. The resultant statutory penalties only are different. Thus it appears to us that the question to be decided in each case is — -did the licensed physician, as such, treat the patient or did he merely give aid or assistance to an unlicensed person to practice medicine or surgery ? In the former circumstance the act would not apply but in the latter circumstance it would apply. The facts of each case must necessarily control the answer.

The court below refused prosecutor the right to supply the facts. In so doing we think it fell into reversible error.

Second: Prosecutor resorted to process in the nature of a warrant. This is authorized by the act. Respondent was obliged to and did furnish bail in double the amount of the penalty, namely, $400 in order to gain his freedom. If respondent should be convicted and we are not to be understood as intimating any opinion that he should or should not be convicted, and neglects or refuses to pay the penalty he is committed to the county jail for a period not exceeding one hundred days. Obviously the proceeding is quasi-criminal in nature. Thus if the complaint which follows the words or language of the statute and describes the offense with which it has to do (State v. Freulli, 98 N. J. L. 395, 401; 119 Atl. Rep. 787) does not sufficiently inform the defendant of the nature and cause of the accusation against him, he is at liberty to demand a bill of particulars. State v. Mohwinkel, 6 N. J. Mis. R. 1072; 143 Atl. Rep. 802.

Third: The warrant was properly served. See chapter 200, Pamph. L. 1933, p. 341 (Cum. Supp. Comp. Stat., 1911-1924, p. 1880, § 127-38s).

Judgment reversed; the cause will be remitted to the court below to be treated in accordance with the views herein expressed; costs, if any, to abide the event.


source: Caselaw Access Project

author: Perskie, J.

license: Public Domain

text:
    HAROLD YOUNG, PLAINTIFF-APPELLANT, v. THE NATIONAL BANK OF NEW JERSEY, A CORPORATION ORGANIZED UNDER THE NATIONAL BANKING LAWS OF THE UNITED STATES, DEFENDANT-APPELLEE.
    Submitted October 16, 1936
    Decided December 9, 1936.
    Before Brogan, Chief Justice, and Justices Case and Pebskie.

      Por the appellant, Abraham L. Motolinsky (Edmund A. Hayes, of counsel).
    Por the appellee, Hicks, Kulthau & Thompson (Douglas M. Hicks, of counsel).
   The opinion of the court was delivered by

Perskie, J.

The issue in this cause concerns the tort liability of an owner for an alleged faulty grating in the sidewalk abutting its premises.

Plaintiff sued defendant to recover damages for injuries which he sustained as a result of falling into a hole while walking over an iron grating. Said grating, flush with and part of the sidewalk, covered an airway opening about five feet in depth and three feet in width leading to the cellar of the premises.

The gravamen of the complaint (paragraph 4) is that “said defendant carelessly and negligently permitted and allowed said iron grating and its supporting foundation to become worn, broken, slippery, neglected and out of repair, so that when plaintiff was walking along said street and stepped on said grating, it slipped out of place, broke and gave way, and plaintiff was precipitated into said opening, which was about five feet deep, with great force and violence.”

The proofs, in substance, disclose that on August 24th, 1935, and a few minutes before the accident occurred, plaintiff passed the premises, 49 New street, New Brunswick, New Jersey, to get some beer across the street, and while so passing the premises he observed the grating and that it “looked perfectly alright;” that when he returned with the beer and walked over the grating it gave way. In further support of plaintiff’s allegations proof was offered as to the condition of the grating. This proof, construed most favorably to the plaintiff, discloses that the grating was “loose;” that “the grating shook, that is, what I would call loose. It was in place and level with the sidewalk;” that it was “loose, slid, that is, it would slide when stepped on;” that there was a “play on the concrete;” and that “the grating was shaky.”

There was no proof that the grating was, in its essence and nature a nuisance; or that the alleged condition of the grating was caused by any wrongful act of the owner, or that it was subjected by the owner to any affirmative wrongdoing or negligent use for other than its intended purpose, or that its construction was faulty or in a defective condition.

Under these circumstances the court granted defendant’s motion, at the close of plaintiff’s proof, for a directed verdict. That disposition is now challenged.

We desire to mark the fact here, although the point was not raised, that the record discloses neither the return of any verdict by the jury nor the copy of the final judgment from which this appeal is taken. We could, therefore, with propriety stop at this point and dismiss the appeal. Kleinman v. Globe and Rutgers Fire Insurance Co., 111 N. J. L. 374; 168 Atl. Rep. 648.

We have, however, concluded to consider this appeal on the alleged merits. The challenge to the action of the court below is made to rest here, as it was below, on the grounds (1) that under the circumstances exhibited, the grating created a dangerous condition; (2) that if the owner did not have actual knowledge of that condition, it was nevertheless charged with constructive knowledge thereof; (3) that the owner should have eliminated the dangerous condition within a reasonable time after notice of its condition; and (4) that the doctrine of res ipsa loquitur applied.

The proofs fail to support the contentions; they are without merit. The apposite law is well settled. “The property owner cannot be made out to be an insurer of the safety of a pedestrian using the sidewalk.” Taggart v. Bouldin, 111 N. J. L. 464; 168 Atl. Rep. 570 (Court of Errors and Appeals). In the case of Schwartz v. Howard Savings Institution, 117 N. J. L. 180; 187 Atl. Rep. 171 (Court of Errors and Appeals), the court held (at pp. 182, 183) :

“The duties and liabilities of abutting land owners as to sidewalks have been clearly defined by the courts of this state. An owner is not responsible for defects in the sidewalk caused by the wear and tear of the elements or public use, and not caused by his own wrongful act. McKeown v. King, 99 N. J. L. 251; Braelow v. Klein, 100 Id. 156; Ford v. Jersey Central Power, &c., Co., 111 Id. 112; Volhe v. Otway, 115 Id. 553. An owner is responsible for defects in the sidewalk canesd by his affirmative wrongdoing or negligent use of such sidewalk for other than its intended purpose. Davis v. Tallon, 91 Id. 618; Prange v. McLaughlin, 115 Id. 116. An owner is also liable for defects in the sidewalk in the nature of a nuisance created by the wrongful or negligent act of a predecessor in title, the nuisance being considered as adopted by the taking of a deed with such defect existent. Braelow v. Klein, supra; Savarese v. Fleckenstein, 111 Id. 574; affirmed, 114 Id. 275.” Compare Wasilewski v. McGuire Art Shop, 117 N. J. L. 264; 187 Atl. Rep. 530.

In the case of Arnold v. Dlugo, 110 N. J. L. 89; 164 Atl. Rep. 320 (Court of Errors and Appeals), plaintiff sued for personal injuries as the result of being tripped or thrown by the raising of a cellar door, by a tenant in the premises, while plaintiff was in the act of walking over same. Among the points raised were that the owners of the premises were under an absolute duty for the proper protection of the opening of the sidewalk, and that the doctrine of res ipsa loguitur applied. Mr. Justice Case for the court, carefully analyzed the applicable decisions of our courts and held that in the absence of an allegation or proof of faulty construction of the doors, defendants were not liable in the premises, and that there was no occasion for the invocation of the doctrine of res ipsa loquitur. Plaintiff’s judgment was reversed because the trial court failed to direct a verdict in favor of defendants-owners.

We think that the court below correctly granted defendant’s motion for a directed verdict, and that it likewise, under the circumstances, committed no error injuriously affecting the substantial rights of appellant in either the exclusion of the photographs, which were not reproductions of the conditions as of the day of the accident, or in the exclusion of the proffered testimony of witness Salter as to the alleged condition of the grating in 1934 without any offer to connect that proof with the condition of the grating as of the date of the accident.

Judgment affirmed, with costs.


author: Bodine, J.

text:
    ISABELLA MANCINI, BY HER NEXT FRIEND AND GUARDIAN, ANTHONY MANCINI, AND ANTHONY MANCINI, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. STEPHENSON’S ASSOCIATES, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October 16, 1936
    Decided December 14, 1936.
    Before Justices Trenchard, Bodine and Heher.
    Bor the defendant-appellant, Collins & Corbin (Edward A. Markley and John F. Leonard).

    Bor the plaintiffs-respondents, Maurice A. Cohen and Sydney L. Jacobs.

   Bodine, J.

The plaintiff, a minor child, had judgment for injuries which she suffered by reason of a break in the floor in premises in which she and her family lived. An attempt was made to show the breach of an express contract by the landlord to make necessary repairs for the benefit of the tenant and members of his family.

The outstanding difficulty in the present case is that there is no proof as to who made the agreement in behalf of the defendants, and besides there is no proof that the nameless person had authority to bind the landowner. Certainly, neither the constable in dispossess proceedings or the agent for the collection of rents has an implied power so to do.

The judgment is reversed, with costs.


author: Per Curiam.

text:
    WILLIAM S. TAGGART, PROSECUTOR, v. CITY OF ASBURY PARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Submitted October term, 1934
    Decided December 16, 1936.
    Before Justices Trenchard, Hiher and Perskie.
    For the prosecutor, Kremer & Proctor.

    For the defendant, Donald M. Waesche.

   Per Curiam.

This writ commands the city of Asbury Park to certify and send to the Supreme Court for review an ordinance adopted by the city February 27th, 1934, entitled: “An ordinance to repeal sundry ordinances relative to fire and police and kindred subjects” together with all proceedings touching and concerning the same.

It appears that in the autumn of 1933 the city adopted the city manager plan of government, and the new government was organized in January, 1934. The ordinance in question was adopted pursuant to the recommendation of the city manager and the city attorney submitted in writing on February 13th, 1934, to the mayor and council and embodied in the minutes. The recommendation of the city manager reads:

“Upon assuming office I found that certain departments of the government of the City of Asbury Park are not operating in accordance with the best principles of the City Manager form of government; that these departments are not operating as efficiently and economically as desired and that there is no proper co-ordination between the various departments as should be established under our present form of government * * *. Therefore, I am respectfully submitting my recommendations for reorganization of all departments which are assigned to my management by law. I have submitted to the city clerk ordinances covering repeal of inconsistent ordinances, as well as an ordinance covering the recommended reorganization.”

This writ was obtained by William S. Taggart, who is the ranking officer in the fire department. Prior to the adoption of the ordinance his title was that of “Chief of the Fire Department.” Since the adoption of the ordinance his title has been changed, by resolution hereinafter referred to, to captain of the fire department and acting chief, and on May 1st, 1934, he took the oath of office as such official. His salary and position as ranking officer in the fire department remains the same as it was prior to the adoption of the ordinance.

The first point made by the prosecutor is that “the resolution reducing the officers and men of the fire department in rank was adopted for purely political reasons.”

It will be noticed that this point deals with the resolution adopted by the mayor and council on March 37th, 1934, and not with the ordinance brought up by the writ, which was adopted February 37th, 1934.

It is therefore questionable whether such resolution is open to the attack made under point one; but in any event the point is without merit. The resolution recites that the city “is facing a serious financial crises,” that public welfare demands the adoption of necessary economic measures, and that economy and greater efficiency require that the fire department be reorganized in the manner provided in the resolution. As we have pointed out the effect of the resolution, in so far as we are now concerned with it, was to reduce the prosecutor from the rank of chief, which he held before the adoption of the resolution, to the rank of captain. Apart from the express terms of the resolution, the record discloses that the city manager testified that although the adoption of the resolution would not be productive of immediate savings to the city, it would lay the foundation for savings in future years. An examination of the record fails to disclose to us any contradiction of that testimony. It is therefore evident that the resolution was adapted for the purposes of economy and greater efficiency, and not for “purely political reasons.”

The next contention is that “the action of the City of Asbury Park in adopting the two ordinances and the resolution under attack has deprived the city of any legally constituted fire department.”

It will be observed that this contention does not point out any lack of authority in the city to adopt the ordinance here under review, nor lack of authority to adopt the ordinance on the same day establishing certain departments and departmental divisions, among others “Division of Fire.” The authority is ample. The statute provides that “the governing body of every municipality shall have power to make * * * or repeal ordinances to establish * * * a fire department.” Cum. Supp. Comp. Stat. 1911-1924, p. 2160, § *136-1701. See, also, the provision of the Municipal Manager act that “the municipal council shall continue or create, and determine and define the powers and duties of such executive and administrative departments, boards and offices in addition to those provided for'herein, as it may be necessary for the proper and efficient conduct of the affairs of the municipality by law. Any department, board or office so created may at any time be abolished by the municipal council. Gum. Supp. Gomp. Stal. 1911-1924, p. 2518, § ***136-702. The state of the case discloses that the resolution heretofore mentioned, and the ordinance brought up for review, and the ordinance last mentioned were adopted, not for purely political reasons, but for the purpose of economy and greater efficiency; and we conclude that the city had the right to pass them, and that is the only question that presently concerns us on this phase of the ease.

The court will not substitute its judgment on matters of. this kind that concern the regulation of the internal affairs of municipal departments for the judgment of those selected by the people and charged by law with the duty of regulating such affairs in the absence of a clear showing of bad faith. Blair v. Brady, 11 N. J. Mis. R. 854; 168 Atl. Rep. 668.

To establish a charge of fraudulent conduct or lack of good faith against a legislative body, the proof of such fraudulent conduct must be clear and convincing. Buckley v. Guttenburg, 87 N. J. L. 434; 95 Atl. Bep. 120. Of course the chief of the fire department may be reduced to the rank of captain if done in good faith and for the purpose of economical administration of governmental affairs of the city. Durkin v. Board of Fire Commissioners, Newark, 89 N. J. L. 468; 99 Atl. Rep. 432.

The last point is: “The pension rights of the prosecutor are destroyed by the action of the defendant in abolishing its fire department.

The sole argument under this point, as we see it, is that the city has abolished its fire department. We think it has not done so, as we have hereinbefore indicated, and so we can see no merit in this point. As a matter of fact the record discloses that the prosecutor is a fireman and a member of the fire department of the city of Asbury Park, which department was established by the ordinance, lie is performing the duties of the ranking officer in the division of fire in the department of public safety and is receiving a salary from the city for his services.

The writ will bo dismissed, with costs.


text:
    LESTER JOHNSON, PROSECUTOR, v. CITY OF ASBURY PARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Submitted October term, 1934
    Decided December 16, 1936.

      Before Justices Trenchard, Heher and Persicie.
    Por the prosecutor, Kremer & Proctor.

    Por the defendant, Donald M. Waesche.

   Per Curiam.

This writ commands the city of Asbury Parle to send to the Supreme Court for review a “certain action” taken by the city “on January 4th, 1934, demoting or attempting to demote the prosecutor, Lester Johnson, from the position of first grade fireman to that of second grade fireman.”

On October 10th, 1933, the voters of the city voted to adopt the city manager form of government. Thereafter, on October 31st, 1933, the retiring government promoted the prosecutor and twenty other second grade firemen to the rank of first grade firemen, although no such similar action had been taken in any ease for a period of three years.

The new form of government took over the affairs of the city on the first of the year 1934, and on January 2d, 1934, the city manager addressed a letter to the mayor and council relating to the budget, wherein, after referring to the financial condition of the city, and the necessity of economy and efficiency, he proceeded to state: “Second, it shall be a budget where no one is on the public payroll unless he or she is absolutely needed for the performance of necessary public service. In this connection and in order that I may be governed accordingly, I have asked the opinion of the city solicitor as to my rights relative to the twenty-odd firemen who were made first grade firemen just prior to the time this new administration took office. * * * In other words, if I have the right, these newly added men will be reduced to the rank they previously held, and when and if, in the course of events it can be proved to me that any additional firemen, patrolmen or other employes are needed for the efficient performance of government in Asbury Park, I shall so advise you and make recommendations accordingly.”

The city manager was advised by the city solicitor that he had such right, and immediately thereafter a resolution was unanimously adopted by the mayor and council that the recommendations submitted for the budget be followed by the city manager, and on January 4th, 1934, the action of the city through its city manager was taken demoting the prosecutor and the others to the status he and they had prior to October 31st, 1933.

The first point made by the prosecutor is that “the action of the defendant, through its city manager, was taken for purely political reasons.” We think that point is without merit.

It appears that prior to the action taken by the city demoting the twenty-one firemen, which is now challenged, the annual salary of the first grade firemen according to ordinance 460 (repealed February 27th, 1934) was $2,000, and that of the second grade firemen was $1,800. It also appears that all of these twenty-one firemen who were reduced in rank are “all now members of the fire department * * * and are being paid the salary of second grade firemen.”

It follows therefrom that a saying in reducing the twenty-one first grade firemen to the rank of second grade firemen is $4,200 annually. It further appears that the city was in dire financial distress. It was largety in default upon interest on its bonds and notes, and in taxes due to the county and state. It therefore seems to us that the action taken was in good faith and for purposes of economy, and not for “purely political reasons.”

The case of Reck v. Board of Commissioners of North Bergen, 110 N. J. L. 173; 164 Atl. Rep. 468, held that “the abolition by a municipality of a position or an office held by one of the favored class designated in the statute, when such action is taken in good faith and for the betterment of the public service * * * is a legitimate exercise of municipal power notwithstanding the provisions of the statutes similar to the one appealed to,” and that “economy in public expenditure is a betterment of service of the municipality towards the public, the revenue producing agency, through the levying and collection of taxes.”

In Maxwell v. Wildwood, 111 N. J. L. 181; 168 Atl. Rep. 143, it was held that “the abolition of an office or position held by one of the designated class does not contravene the provisions of the Veterans and Exempt Eiremen’s acts, when such action is taken in good faith and for the betterment of public service.”

In Durken v. Newark Fire Commissioners, 89 N. J. L. 468, it was held that for the purpose of economical administration of governmental affairs members of the fire department may be reduced in rank and salary, if done in good faith.

In the companion case to this (Taggart v. Asbury Park, 15 N. J. Mis. R. 10, considered at the same time as the present case) we pointed out that in cases such as these the general rule is that in the absence of a showing of bad faith, which must be clear and convincing, the court will not interfere with the action of the municipal body.

The only remaining point is that “the salaries of the prosecutor and other first grade firemen were fixed by the voters of the city of Asbury Park at a referendum election and could not legally be reduced without another similar election.”

But here there is nothing to show that the prosecutor’s salary was fixed by the voters at a referendum election held in 1930, as contended by the prosecutor. The evidence is to the contrary, that salaries were fixed and determined by an ordinance which has since been repealed. However, the question brought up for review is not one of salary, but is as to the legality of the demotion of the prosecutor from the position of first grade fireman to that of second grade fireman; and that we think the city had the right to do.

The writ will be dismissed, with costs.


author: Flanxagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    DOROTHY KLUBER, PLAINTIFF, v. WILLIAM A. PFERDEORT AND B. K. SALES COMPANY, INCORPORATED, DEFENDANTS.
    Decided December 21, 1936.
    For the plaintiff, Luke Kiernan.

    For the defendant B. K. Sales Company, Incorporated, Franklin J. Marryott.

    For the defendant William A. Pferdoert, Charles Becker.

   Flanxagan, C. P. J.

The jury found a verdict in the following words: “We the jury render a verdict in favor of the plaintiff, Miss Dorothy Kluber, in the amount of $1,500.”

The suit was an automobile accident case. There were two defendants, one the driver of the car (Pferdeort) and the other the absent employer of such driver, the liability of the employer being predicated upon the charge that the driver was engaged in his employer's business and that he invited the plaintiff, who was riding with him, to ride as his employer's guest under authority from his employer to do so.

It is contended on the one hand that this verdict is a general verdict finding all issues in plaintiff's favor no matter by which defendant raised. On the other hand, it is contended that the verdict as quoted leaves open the alternative that one or the other of the defendants was not intended to be held liable without indicating which one.

Under the evidence adduced a verdict against one defendant (Pferdeort) and in favor of the other defendant was permissible and the fact that the defendants stood on a different basis of liability was accentuated by the court in its charge and by the arguments of the defendants’ respective counsel throughout the whole case above all other considerations. The concluding words of the court in its charge to the jury were a repetition of this difference. The question is: Must we interpret the jury’s verdict as an understanding verdict consistent with the charge or must we take it as a failure to meet either the charge, the arguments of counsel, or the theory upon which the trial was conducted from beginning to end? If the first alternative is reasonably open, we must assuredly accept it.

That such a verdict is properly to be interpreted as finding all issues in favor of the plaintiff, whether such issues be raised by one defendant or the other, has been held frequently before in a number of jurisdictions.

In Wilson v. Means, 25 Kan. 58, the Supreme Court says: “Horton, C. J. The verdict of the jury in this case is as follows: ‘We, the jury, impaneled and sworn in the above entitled case, do upon our oaths find for the plaintiff $900 with interest from March 6th, 1879.’ The objection is made that the court could not know from the verdict against whom to render judgment; that, under the instructions, the jury ought to have stated in the verdict whether they found against one or both defendants. The objection is not well taken. The verdict is a general finding against both defendants, as much so as if the jury had specifically named Frank Wilson and Jesse H. Wilson.”

In Crockett Sons v. Anselin (Tex. Ct. of Civ. Appeals), 132 S. W. Rep. 99, the court said:

“The ease was tried before a jury and resulted in a verdict in favor of plaintiff upon which judgment was entered against defendants Crockett & Sons and the individuals composing the firm jointly and severally and the Union Warehouse and Elevator Company for the sum of $1,965. (P. 101.) * * * When the verdict is read and construed in connection with the pleadings and the charge of the court, we think it supports the judgment entered upon it. It is a general verdict for the plaintiff; and the rule is that such a verdict is against all of the defendants and determines all the issues in plaintiff’s favor touching his right to the relief sought.”

Mr. Anderson in his elaborate book “An Automobile Accident Suit,” says, “a verdict in favor of plaintiff is presumptively against both defendants if nothing more appears to the contrary,” citing Scott v. McLennan (Mo. App), 242 S. W. Rep. 140.

In McMahon v. Heich-Hetchy, &c., Railway Co., 84 Pac. Rep. 350, decided by the Court of Appeals, Third District of California, the jury rendered a verdict, “we the jury in the above entitled action, find a verdict in favor of the plaintiffs in the sum of $300 damages.” There were two defendants. The court said (at p. 351) :

“It is said that the verdict does not support the view that the jury found against both the defendants, but unanswerable rules of logic make it clear that it is against both or neither of them. It must be construed as a verdict against both upon which a judgment against both jointly should have been entered. 11 Enc. Pl. A Pr. 856, 857; McLaughlin v. Kelly, 22 Cal. 222; Winans v. Christie, 4 Cal. 76; 60 Am. Dec. 597. The cause was at issue as to both the defendants and the jury was called upon to determine the issues of fact presented by the pleadings. Schultz v. McLean, 76 Cal. 609; 18 Pac. Rep. 775; 11 Enc. Pl. A Pr. 865, 866.”

An analogy is found in State v. Buyer, 3 N. J. Mis. R. 223; 127 Atl. Rep. 787, where the Supreme Court of New Jersey says (at p. 224) :

“But it is entirely settled that where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty means a separate conviction of each separate offense.” Citing State v. Huggins, 84 N. J. L. 254; 87 Atl. Rep. 630, where the Court of Errors uses the identical language (at p. 258).

In Jones v. St. Louis and Santa Fe Railway Co., 89 Mo. App. 653, the court says (at p. 664) :

“The criticism of appellant, the St. Louis and San Erancisco Bailway Company on the verdict of the jury is not justified. We the jury find the issues in favor of the plaintiff’ is said to be uncertain and the question is asked: 'Against whom did they find?’ As the jury had been told-they might find against one or both of the defendants, it is intimated that they should have stated whether their finding was against both; and if not against both, then against which defendant. The inference is clear that the jury intended to find against both. The presumption is that if they had only intended to find against one of the defendants, they would have so stated and designated which one.”

I have no hesitancy in accepting the interpretation adopted in the cases cited.

As far as I am advised there has never been any question that where there are several plaintiffs (i. e., the driver and invitees in a car) and one defendant a verdict “for defendant” is regarded as one against all plaintiffs. The instant case is merely the converse of this.

Tor these reasons the rule must be discharged.


author: Davidson, C. P. J.

text:
    Passaic County Court of Common Pleas.
    YVES DORVAL, PETITIONER-APPELLANT, v. UNITED PIECE DYE WORKS, RESPONDENT-APPELLEE.
    Decided November 19, 1936.
    Por the petitioner, Nathan Rabinowitz and Joseph D. Donato (Isadora Rabinowitz, of counsel).
    Por the respondent, John Pomfret, Jr.

   Davidson, C. P. J.

This is an appeal from a judgment of dismissal entered in the workmen’s compensation bureau on a claim petition alleging hernia, the commissioner basing his determination upon a finding that the petitioner below failed to sustain the burden of proof relative to strict compliance with the fifth requirement of the statutory provisions contained in paragraph II, section X, of the Workmen’s Compensation act, namely, “that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.” It is unnecessary to here set out the other four requirements of the statute as the evidence discloses a full compliance and the commissioner so found.

The statute itself declares inguinal hernia to be a disease which ordinarily develops gradually, rarely resulting from accident, and it is evident that the legislative requirements of the section were definitely prescribed in order to prevent imposition. The surrounding circumstances as revealed by the testimony and the stipulation that a witness for petitioner below would testify that he saw the employe lift the barrel, complain of pain at the time, and thereafter only undertake light work, indicates very definitely that this is not a case of imposition.

The general aspect of the case as disclosed by the proofs, unquestionably demonstrates that petitioner felt a sudden pain in the right groin while engaged in lifting a barrel, that he thereupon walked some fifteen or twenty feet to a toilet and noticed a lump in his right groin, that he reported the occurrence to his foreman and then, for about two hours engaged in light work until his regular quitting time. He walked some two blocks to his home and upon reporting for work the next day visited the mill clinic and was told by the nurse in charge, who took a history but made no examination, to take it easy and return the following day when the doctor would be there. He resumed light work and was attended by the mill doctor some thirty-nine hours after the accident. While the doctor then found the hernia painless, that he had previously suffered physical distress is conclusively established in the evidence. The fact that the employe actually reported to the clinic for treatment, in the light of surrounding circumstances and after consideration of all the testimony, is to me persuasive evidence that his physical distress was such that the attendance of a licensed physician was required within the statutory period. He, in fact, sought such assistance. The statute does not use the word “obtained,” it pointedly employs “required,” which implies necessity, and doubtless for the very good reason that a situation might arise where the necessity for a physician’s services might be extreme and yet the circumstances conceivably preclude his actual attendance within the required time.

The petitioner below undoubtedly was not aware of the statutory requirements, he acted honestly, was unintentionally, of course, lulled into a sense of security by the nurse in charge of the clinic, and, in these circumstances, it would certainly be contrary to the purpose and intent of this beneficial legislation to penalize the employe.

It may well be that there was an initial congenital weakness of the abdominal wall, but that the hernia was caused by the sudden strain involved in lifting a barrel, certainly cannot be denied in the face of the evidence and is, in fact, more or less tacitly admitted.

I am of the opinion that the proofs offered conclusively demonstrate a compensable hernia within the intent of the statute and the determination of the bureau is, accordingly, reversed.

I further find that while petitioner was employed by the respondent on February 6th, 1935, he suffered an accident resulting in the hernia aforesaid, which accident arose out of and in the course of his employment with the respondent; that respondent had actual knowledge of the occurrence of the said injury; and that petitioner’s wages were twenty-six dollars and forty cents ($26.40) per week.

Petitioner lias indicated that he does not desire to undergo an operation for the relief of his hernia and I therefore find that he is entitled to compensation for a period of twenty (20) weeks at the rate of seventeen dollars and sixty cents ($17.60) per week, being two-thirds (2/3) of his weekly wage.

I further find that Doctors Córtese and lannacone testified for petitioner and their testimony was necessary to a proper presentation of petitioner’s case and they are entitled, for medical expert testimony in the sum of thirty ($30) dollars therefor to be paid in the following manner, to wit: $15 to be paid Dr. Alvin E. Córtese and $15 to be paid Dr. John lannacone, one-half to be paid by petitioner and one-half to be paid by respondent.

I further find that petitioner’s legal advisers, Nathan Eabinowitz, Isadore Eabinowitz and Joseph D. Donato, are entitled to compensation for services rendered in the workmen’s compensation bureau in the sum of seventy ($70) dollars, to be paid in the following manner, to wit: one-half to be paid by petitioner, and one-half by respondent, and three hundred ($300) dollars for services rendered in connection with the appeal to this court to be paid in the following manner, to wit: $225 by respondent and $75 by petitioner.

It is further ordered that stenographic fees are to be paid by the respondent.

It is, therefore, on this 19th day of November, 1936, ordered that judgment final be entered in favor of the petitioner, Yves Dorval, and against the respondent, United Piece Dye Works, in the sum of seventeen dollars and sixty cents ($17.60) per week, for a period of twenty (20) weeks beginning with February 6th, 1935, the total sum therefor, now being due in the sum of $352 for medical testimony rendered by Doctors Córtese and lannacone, the sum of $30, one-half to be paid by petitioner and one-half by respondent, for legal services rendered in this proceeding before the workmen’s compensation bureau in the sum of $70 to be paid in the following manner, to wit: one-half by petitioner and one-half by respondent, and $300 for legal services rendered in this court on appeal from the workmen’s compensation bureau, to be paid in the following manner, to wit: $225 by respondent and $75 by petitioner; it is further ordered that stenographic fees for attendance of stenographer before the workmen’s compensation bureau to be paid by the respondent.


text:
    MAUREEN KELLY, PLAINTIFF-RESPONDENT, v. GUARANTEE TRUST COMPANY, A BANKING CORPORATION, ETC., AND GEORGE G. ORTLIP, EXECUTORS OF THE ESTATE OF LOUIS KUEHNLE, DECEASED, DEFENDANTS-APPELLANTS.
    Submitted October term, 1936
    Decided December 23, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the appellants, Cole & Cole.

    Por the respondent, Smathers & Scott.

   The opinion of the court was delivered by

Persicie, J.

Plaintiff sued defendants as executors of the estate of Louis Kuehnle, deceased. The complaint was in three counts: (1) for alleged services rendered by plaintiff to decedent as his nurse, dietician and housekeeper from December 1st, 1930, to July 1st, 1933, at $110 a month; (2) for cash had and received (proceeds of the sale of her Packard automobile by defendants), and (3) for money loaned by plaintiff to decedent.

Defendants answered denying the allegations set out in the complaint and in addition thereto set up a counter-claim alleging therein that the plaintiff unlawfully took possession of certain jewelry and diamonds belonging to decedent and valued at $3,000. The only proofs offered by defendants (their position was, although there had been negotiations between the parties, as disclosed by stipulation, to effect an adjustment of plaintiff’s claim, that they knew nothing of the arrangements between the parties and all they could do was to insist that plaintiff prove her case in accordance with the law) was witness Kobert T. Chapman, who testified as to the value of the jewelry and diamonds for which recovery was sought under the counter-claim. At the conclusion of the proofs defendants for the first time, without objection, in fact, by consent, added an additional defense, namely, that since the alleged agreement between plaintiff and decedent was not in writing and was not to be performed within one year from the date of its making, it was void under our statute of frauds and perjuries. 2 Comp. Stat. 1709-1910, p. 2610.

Plaintiff abandoned the third count and defendants’ counter-claim' was disposed of by plaintiff returning the jewelry and diamonds therein described to the defendants and the latter consented to the return thereof and accepted the same in satisfaction of their demand under the counter-claim.

Defendants moved for a directed verdict. Pour grounds were advanced in support of the motion. Epitomized they are, in substance, that plaintiff had failed to produce sufficient evidence to warrant or support a finding by the jury that deceased had made the contract as set forth in the complaint; that if the evidence was, however, sufficient to warrant or support such a finding by the jury, then the contract “not being one to be performed within a year, and not being in writing” was void under our statute of frauds and perjuries, supra.

The trial judge denied the motion and submitted the cause to the jury for its determination. The jury returned a verdict in favor of the plaintiff and against the defendants in the sum of $3,364 on the first count and $1,065 on the second count. It is the judgment based on that verdict that is here challenged.

In support of that challenge four grounds are set down and argued.

First: “The trial court erred in not granting defendants’ motion for a directed verdict.” Here again we are told in effect, that neither the evidence nor the legitimate inferences to bo drawn therefrom support the plaintiff’s alleged contract with decedent. Our study of the proofs satisfied us that there is a plentitude of proof and legitimate inferences to be drawn therefrom in support of the claim made by plaintiff. Defendants offered no proofs on the issues submitted to the jury. Their cross-examination of plaintiff’s witnesses did not seriously challenge their testimony. The issue was purely factual; a jury question was present. The trial judge properly denied the motion. Cf. Kempf v. New York, O. and W. Railway Co., 112 N. J. L. 118; 169 Atl. Rep. 713; Repasky v. Novich, 113 N. J. L. 126; 172 Atl. Rep. 374.

Second: “It was error to permit plaintiff to testify from photostatic copies of checks supposed to bear Mr. Kuehnle’s signature.” It appears that plaintiff sustained a compensable injury while working for decedent. She made a claim for compensation. It was adjusted on the basis of seventy-five per cent, or seventy-eight per cent, of her monthly salary of $110, which salary it was said, and not denied, was certified by decedent otherwise she would not have received compensation. She received periodical payments, in form of checks, from the insurer (Casualty Insurance Company) for over a year; they aggregated over $1,000. The original checks were unavailable; they were in Pennsylvania. Photostatie copies thereof were produced. Plaintiff was permitted merely to say, after stating that she knew decedent’s signature, that both decedent’s signature and her signature appeared thereon. Effort to show a negotiation of the original checks to decedent was excluded. Under the circumstances thus exhibited, we fail to see how any substantial rights of appellants were injuriously affected.

Third: “It was error to refuse defendants’ first request as follows: Tf the agreement relied upon by the plaintiff was not one to be wholly performed within a year, it was void under the statute of frauds, and plaintiff cannot recover.’ ” We think this is without merit.

It is, of course, true that plaintiff worked for the decedent for a year; she, in fact, worked for him for many years. But that is not the test in determining whether the challenged agreement is in violation of the statute of frauds and perjuries. Cf. Smith v. Batch, 89 N. J. Eq. 566, 568; 105 Atl. Rep. 17. Here we have a hiring by the month. Obviously, decedent could have terminated the contract at any time for cause and on a month’s notice without cause. The statute, under the facts here exhibited, has no application. Cf. Reynier v. Associated Dyeing and Printing Co., 116 N. J. L. 481; 184 Atl. Rep. 780, and Barnes v. P. & D. Manufacturing Co., 117 N. J. L. 156, 162, 163; 187 Atl. Rep. 186.

Fourth: “The court permitted the jury to find a verdict in favor of the plaintiff on the theory of her alleged ownership of an automobile, the proceeds of a sale of which never came into the hands of Kuehnle.” Appellants base this ground on the court’s refusal to charge as follows: “There can be no verdict in favor of the plaintiff for the value of the automobile because the legal title thereto was in Kuehnle and it passed to his executors as a part of his estate.” The argument on this point is rather unusual. It is said: “Assuming that the plaintiff satisfactorily established her claim as set up in the second count, it was a claim not against Kuehnle’s estate, but the Guarantee Trust Company individually, and as an individual it is not a party to the action.” First, no such defense was interposed in this cause. Second, the proofs clearly establish that the Guarantee Trust Company came into possession of the proceeds of the sale of plaintiff’s car by virtue of its capacity as an executor of decedent’s estate and not otherwise.

Judgment is affirmed, with costs.


text:
    WILLIAM MULLIN, PLAINTIFF-RESPONDENT, v. CAMDEN COUNTY BEVERAGE COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1936
    Decided December 23, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the appellant, Walter S. Keown (George D. Roihermel, of counsel).
    For the respondent, Harris & Wood (William Harris, of counsel).
   The opinion of the court was delivered by

Perskie, J.

Defendant appeals from a judgment of the Camden County Court of Common Pleas, based on a jury verdict of $1,768 damages and $82.27 costs, in favor of the plaintiff.

The complaint sets forth that on May 15th, 1933, plaintiff sold and delivered to defendant, at 1711 Van Burén street, Camden, Blew Jersey, two hundred and forty-six empty half-barrel beer kegs at $8 a barrel; that $200 was paid on account thereof and that there was due the plaintiff from the defendant the balance of $1,768.

Boughly stated the proofs offered in support of plaintiff’s claim is that plaintiff made the agreement for the sale and delivery of the barrels with one Thomas Coogan, known as "Tippy” Coogan, representing defendant; that plaintiff had taken orders from defendant through Coogan for about five years; that plaintiff delivered the barrels to 1711 Van Burén street, which was the defendant’s bottling or filling place; that the barrels were delivered and received by one Evans, who gave plaintiff a receipt for the same, the duplicate copy thereof he delivered to defendant; that the barrels were thereafter taken from 1711 Van Burén street by defendant in its trucks to its brewery; that Evans was authorized to do what he did by one Allison, president of the defendant company; that Allison and one Charles A. Bodine, who was alleged to have a money interest in the defendant company, in effect, accepted the fruits of the contract sued upon and ratified the contract.

Defendant disclaimed liability. In the borrowed words of its counsel “the whole defense of defendant is that this law suit is altogether fictitious * * *.” Defendant denied that it ever made a purchase of the barrels from plaintiff, or ever authorized anyone directly or indirectly to make the alleged purchase for it, or ever received the barrels, or made any payment on account thereof.

In support of its denial of liability defendant offered proof to the effect that it had nothing whatever to do with the purchase of the barrels and did not, in fact, receive them. Bodine denied that he had any interest in the defendant company. Coogan, who it was claimed by plaintiff represented the defendant, testified that 1711 Van Burén street, where the barrels were delivered, was his place of business for the distribution of beer; that the barrels were owned by him and deliverd to him and the reason he did not pay plaintiff for them was because they were stolen from him by Evans who sold them to the plaintiff; that Evans, who gave the receipt for the barrels, was employed by Coogan and not the defendant. And there were further proofs offered for defendant in support of its denial of liability. Defendant’s motions for nonsuit and a directed verdict were denied by the court and the case was submitted to the jury for its determination. The propriety of that disposition of the motions is here challenged.

In the language of the Court of Errors and Appeals in the ease of Internal Water Heater Co., Inc., v. Burns Bros., 114 N. J. L. 368 (at p. 374); 176 Atl. Rep. 380:

“The principles of law applicable in order to bind a corporation on its contract, the action of the officers of a corporation within the apparent powers conferred upon them, the ratification of such contract and the acceptance of the fruits thereof, are all too firmly established to be herein again restated. See Erie Railroad Co. v. S. J. Grove & Sons Co., Inc., 114 N. J. L. 216,” and cases therein collated.

The proofs were in sharp conflict. Our study thereof leads us to the compelling conclusion that practically all of the parties and their respective witnesses were of one and the same ilk; they were engaged in the illegal manufacture and traffic of beer during the years of prohibition and some did not escape without a jail penalty for so doing; that after the repeal of prohibition the name of the corporation was changed but its activities, and those of the others here involved, in the manufacture and sale of beer continued.

The jury might well have found, if they so chose, for the defendant. They elected to find for the plaintiff; there is ample evidence to support that finding. We are thoroughly in accord with the trial judge when he said that the whole issue “devotes itself into pretty much a question of credibility * * The trial judge, therefore, properly refused the motions to nonsuit and to direct a verdict in favor of the defendant. The charge to the jury was fair and free from reversible error.

We find no merit in any of the other points argued.

Judgment is affirmed, with costs.


author: Peeskie, J.

text:
    NICHOLAS SEVERINI, PLAINTIFF-RESPONDENT, v. HARRY OLIM, DEFENDANT-APPELLANT.
    Submitted October term, 1936
    Decided December 23, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the appellant, Edward B. McGlynn.

    For the respondent, Nathan Reibel.

   The opinion of the court was delivered by

Peeskie, J.

Defendant appeals from a judgment of the Union County Court of Common Pleas in favor of the plaintiff. The judgment is based on a jury verdict which was originally for $1,500 but on a rule to show cause, on the ground that it was excessive, it was reduced to $1,000, and, as so reduced, was accepted by the plaintiff.

This is a tort action. Plaintiff charged defendant with eight acts of negligence. These were finally reduced, in substance, to the single charge that defendant was negligent because he failed, under the circumstances here exhibited, to furnish plaintiff with a reasonably safe place while the latter was in the act of removing a running board from an old automobile in defendant’s automobile junk yard and which running board plaintiff had purchased from the defendant and as part of the purchase price agreed to remove the same.

Defendant denied that he was under any such duty to the plaintiff, and that plaintiff was guilty of contributory negligence, or that he assumed the risk, if any existed.

The proofs disclose that defendant operated an automobile junk yard in the city of Elizabeth, New Jersey. On September 21st, 1934, the plaintiff called at the defendant’s place of business for the purpose of purchasing a second-hand running board for a Chrysler automobile. Plaintiff saw what he wanted. Some little talk followed as to the price for the said board. Plaintiff says that it was to be ninety-five cents and defendant says that it was to be $1.50. At all events it was getting late and defendant told plaintiff to return the next day. This plaintiff did. After further bargaining on the price defendant said: “I will tell you what I will do. Here is (sic) the tools, take the running board off and give me fifty cents for it.” Plaintiff agreed and then asked defendant if it was all right to work on the car because there were other cars nearby. Defendant replied, “the car was okay to work on it.” That while plaintiff was endeavoring to detach the board from the chassis he suddenly heard a crack and the automobile swayed and moved forward; that as he was coping with the situation the best he could the back door of the car opened and he saw some motors in the car; that the final result was that his hand was caught between the body of the car and the ground and he sustained the injuries for which he sued. Plaintiff’s proofs further tended to disclose that defendant had carelessly jacked up the automobile and had some motors in the back part thereof; that when plaintiff endeavored to detach the running board one of the supports on which the automobile rested, a two or five-gallon can, collapsed and caused the automobile to tilt over and imprison his hand as aforesaid. The defendant’s proof was directly opposite in all details as to the happening of the accident. His proofs are that the plaintiff had a full view of the automobile at all times; that the defendant told the plaintiff that the value of the running board was $1.50, but since the value of the labor in detaching it was $1 that the plaintiff suggested that he be allowed to detach the board and pay fifty cents for it; that such bargain was struck; that plaintiff went to his car for tools and when he ascertained that they were too light for the job he obtained a heavy hammer from defendant; that the automobile in question was not jacked up but was resting on the ground on its dismantled wheels; that the automobile was not tilted or upset as was described by the plaintiff; that the plaintiff's left hand was jammed between the running board which he was trying to remove, and the middle bracket thereof and that there was nothing in the inside of the automobile that would cause it to sway and tilt.

Defendant moved for a nonsuit. That motion was rested on three grounds: (1) that defendant was under no obligation to provide a safe place; (2) that plaintiff assumed the risk, and (-3) that the accident could not have happened as described by the plaintiff. The trial judge denied the motion. He submitted the case to the jury, and we think properly so, for its determination as to whether the defendant used reasonable care in discharging his duty to the plaintiff of providing him with a reasonably safe place to remove the running board, i. e., was the car in a reasonably safe position from which he could, in the exercise of reasonable care, remove the running board?

Appellant argues: First, that his only duty in the premises was to warn plaintiff' of known latent dangers. That argument is based on the ground that under the special arrangements for the sale and purchase of the running board plaintiff took upon himself, in light of the obvious condition and place of the car, and all other circumstances, the task or work of removing the board, and that, therefore, the only duty defendant owed plaintiff was to warn him of latent dangers which were either known to defendant or should have been known to him; that the accident grew out of the very nature of the work which plaintiff was doing. And although it is strongly urged that defendant had no control over plaintiff in his removal of the running board, i. e., that there was no master and servant relationship between them, nevertheless, the holding on Curley v. Hoff, 62 N. J. L. 758; 42 Atl. Rep. 731, is invoked. In that case the Court of Errors and Appeals held the rule of duty, for a master to use reasonable care that the place of working of his servants should be kept safe, is not fully applicable in a case where the work itself involves the place of working; that the master is not liable to the servant against the very danger arising from his work; he is, under such circumstances, under the duty merely to use reasonable care to discover and give notice of latent dangers.

Clearly there was no master and -servant relationship between the parties in this cause. The case of Curley v. Hoff, supra, has no application. The plaintiff was where he undoubtedly had a right to be. He was under the car in pursuance of a contractual right of mutual interest to both parties. He was, therefore, an invitee. And as an invitee defendant owed him the duty to use ordinary care. In other words defendant owed plaintiff the duty to exercise ordinary care to render the premises reasonably safe for the purpose embraced in the invitation, and for the neglect of that duty a liability ensues to respond in damages for resulting injuries. Cf. Murphy v. Core Joint Concrete Pipe Co., 110 N. J. L. 83; 164 Atl. Rep. 262, and cases therein on page 86. And, as already pointed out, defendant told plaintiff “the ear was okay to work on it.”

We are of the opinion that the testimony adduced for the plaintiff and the legitimate inferences to be drawn therefrom were ample to support a verdict for the plaintiff. The motion to nonsuit was, therefore, properly denied. Cf. Kempf v. New York, O. and W. Railway Co., 112 N. J. L. 118; 169 Atl. Rep. 713; Repashy v. Novich, 113 N. J. L. 126; 172 Atl. Rep. 374.

Second: It is argued that in no event was the defendant under the absolute duty of furnishing a reasonably safe situation to enable the plaintiff to remove the running board.

True it is that the trial judge did on the motion to nonsuit say: “The only thing that I can leave to the jury is this: Was this place reasonably safe for this man to work in?” but he also said, in the sentence immediately following: “They [jury] must find some act of negligence, some act of commission or omission of the owner which caused the accident.” And moreover, in his charge which must of course be read in its entirety (Lyon v. Fabricant, 113 N. J. L. 62; 172 Atl. Rep. 567) he said: “All that the owner of the car, the junk man, was required by law to do was to furnish a place that was reasonably safe for the man to work in and take off the running board. In other words, was the car in a reasonably safe condition to work on? If it was, that is the end of the case because that is all the junk man was required to do, to furnish a place that was reasonably safe, using ordinary care to furnish a place which was in a reasonably safe condition.” And again, in his charge, he said: “If the car shifted forward as the plaintiff says it did, was that the fault of the defendant, did he use a reasonable degree of care in providing a reasonably safe place for the man to work in?” (Italics supplied.)

The language thus employed is not subject to the vice pointed out in the case of Krause v. Emanuel E. Katz, Inc., 14 N. J. Mis. R. 424; 185 Atl. Rep. 537, and urged here as applicable. In that case the trial judge said that it was the duty of one using the highway to so operate his machine as not to cause injury to another. We, of course, held such a charge erroneous. We said: “The duty is merely to use reasonable care.” It appears to us that the trial judge made very clear to the jury in the instant case that all defendant Avas obliged to do was to use ordinary care in providing plaintiff, as an invitee, a reasonably safe place to do the work. The language employed by the trial judge is the language sanctioned and approved in Coyne v. Mutual Grocery Co., Inc., 116 N. J. L. 36, 38; 181 Atl. Rep. 314 (liability of a proprietor of a retail store to a customer) : “It was incumbent upon it [defendant] to provide a reasonably safe place for its patrons; it was required to use ordinary care in fulfilling the obligation to safeguard them.”

We think that the trial judge fairly and accurately stated the issues involved and the law applicable thereto. The charge is free from reversible error.

Judgment is affirmed, with costs.


author: Case, J.

text:
    MARY ELLIS, PLAINTIFF-RESPONDENT, v. ARTHUR ROSENBERG AND IRVING ROSOFSKY, TRADING AS ROSENBERG BROS., AND ARTHUR ROSENBERG AND IRVING ROSOFSKY, TRADING AS KING ARTHUR FOOD MARKET, DEFENDANTS-APPELLANTS.
    Argued October 7, 1936
    Decided December 22, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the plaintiff-respondent, Sher & Sher (Sydney Sher).

    For the defendants-appellants, Gerald McLaughlin, Paul J. Christiansen and McCarter & English.

   The opinion of the court was delivered by

Case, J.

The appeal is by the defendants from a judgment for the plaintiff given by a jury in the Bergen Pleas in a suit for personal injuries caused by a fall in the defendant’s store. There was testimony which, in itself and in the legitimate inferences to be drawn therefrom, would sustain a factual finding that the plaintiff was a customer on the premises for the purpose of, and was in the act of, purchasing goods, and that while inspecting certain foods products she made a stop and fell, to her injury; that the floor was in a defective condition and that that condition was caused by wear over a considerable period of time — a sufficiently long time for the defendants, in the exercise of reasonable care, to have observed and remedied the defect; that a part of the defective condition was a small hole or depression in the floor; and that the cause of plaintiff’s fall was that the heel of her shoe sank into that hole and threw her.

The appellants present three points for reversal, the first of which is that the court erred in refusing to grant the motion for a nonsuit, and the second of which is that the court erred in refusing to grant the motion for a direction of verdict in favor of the defendants and against the plaintiff. These points may be considered together.

The duty owed by the defendants to the plaintiff has been stated by our Court of Errors and Appeals thus: “The duty * * * was to exercise reasonable care to keep the floor of its store, to which it invited appellant, in such condition of repair that it would be reasonably safe for her, in the exercise of reasonable care upon her part, to be upon and about such premises or such parts thereof to which the invitation extended.” Stark v. Great Atlantic and Pacific Tea Co., 102 N. J. L. 694; 133 Atl. Rep. 172. The jury could have found, and evidently did find, that the defects in the floor were such that they could not have come into existence coincident with the happening but must, by more or less slow and gradual processes covering appreciable periods of time, have grown from a condition of safety to one not safe, as measured by the rule of reasonable care. There was, therefore, presented a question for jury determination as to whether or not the condition existed for such a period of time as to give to the party chargeable with the care and maintenance reasonable time and opportunity to inspect and repair if necessary. Stark v. Great Atlantic and Pacific Tea Co., supra.

Appellants’ third point is that the court erred in admitting certain photographs in evidence. Appellants make much of their assertion that the photographs were taken almost two years after the accident. But that assertion is not proved and should not be made in the absence of proof. The only objection stated to the trial court why the photographs should not he admitted was that the date of the taking of the pictures had not been proved. It was in evidence that the photographs truly represented the condition of the floor in the defendants’ store at the time of plaintiff’s accident. The rule ordinarily applicable is that a photograph is admissible if it is a true representation of the condition in question. Sidway v. Greater Atlantic Finance and Mortgage Co., 12 N. J. Mis. R. 83; 169 Atl. Rep. 531. If the defendants considered that there were special circumstances, whether by way of the date of the taking of the pictures or otherwise, that should be shown, it was within their province to cross-examine upon the photographs before their admission. That the defendants did not do. The admission of the photographs was therefore without error. At best such offers are addressed to the sound discretion of the trial judge, and in the absence of clear proof that the discretion has been improperly exercised, his rulings thereon will not be disturbed. Braelow v. Klein, 100 N. J. L. 156; 125 Atl. Rep. 103.

The judgment will be affirmed.


text:
    CENTRAL BANK AND TRUST COMPANY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FOREST HILL FOUNDRY COMPANY, C. FRANZ, ALSO KNOWN AS CHRISTIAN FRANZ, DEFENDANTS, AND LUIGI NAPORANO, DEFENDANT-APPELLANT.
    Submitted October term, 1936
    Decided December 22, 1936.

      Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the plaintiff-respondent, Nicholas Lavecchia.

    For the defendant-appellant, Carl & William, Abruzzese (Carl Abruzzese).

   The opinion of the court was delivered by

Case, J.

Appellant was sued as the endorser on a promissory note held by the respondent and payable at the latter’s banking house. Defendant answered and counter-claimed. On respondent’s motion the answer and counter-claim were struck as “partly sham and frivolous,” and final judgment was entered.

The grounds of appeal are numerous and somewhat involved. They need not be separately discussed in the disposition of the appeal.

The answer sufficiently raises the defenses of payment of the note and of failure to forward the statutory notice of protest to the defendant. The notice of motion to strike gives no greater detail as to the alleged faults in the defendant’s pleading than “that parts of the said answer are sham and parts of the said answer are frivolous and that parts of the said counter-claim are sham and parts of the said counterclaim are frivolous.” The order granting the motion to strike finds that the answer “is partly sham and frivolous and that the counter-claim * * * is partly sham and frivolous.” It is apparent that at least those parts of the answer which we have referred to were not frivolous. It remains to consider whether they are sham.

The plaintiff, on the motion, submitted proof that notice of non-payment and protest was mailed in season to the defendant Lnigi Naporano, at 17 Van Burén street, Newark, New Jersey. The defendant submitted counter-affidavits specifically detailing the method followed by the postman, whose affidavit was submitted, in delivering the defendant’s mail at the named address, which was Naporano’s place of residence, and of the defendant, of his wife, his two sons and his daughter that notice of protest was never received. It is true that the Negotiable Instruments law provides in section 105, 3 Comp. Stat., p. 3747, that where notice of dishonor is duly addressed and deposited in the post office the sender is deemed to have given notice, notwithstanding any miscarriage in the mails. But it appears to us that when the proof by the plaintiff is ex parte, without opportunity to the fact determining body to observe the affiant and without the privilege of cross-examination, and there is detailed proof that a normal sequence to an act so proven has not happened — in this instance the delivery of the mailed parcel — there is a question of fact which, when it relates, as here, to a material matter in the suit, ought not to deprive the defendant of his opportunity to have the disputed fact demonstrated in the court room and in the manner usual to a trial. Also, the defendant, by his submitted affidavits, much of the matter of which is controversial and hearsay but some of which is evidential, presented on oath that a credit certificate issued by the plaintiff to Forest Hill Foundry Company in the amount of $2,000 had been assigned to the defendant and was physically delivered to the plaintiff as security for the payment of the note now sued upon. Plaintiff in its proofs admits the giving of the credit certificate and the subsequent redelivery of it to the plaintiff hut alleges that allowance therefor was to be made and was made, to the exhaustion of the credit, on the account of other notes. That, too, raised a question of fact. It may he that in the opinion of the judge the proofs submitted by the plaintiff much outweighed in force and persuasiveness the proof submitted by the defendant. But the duty of the court, on a motion to strike out a pleading as shain, is to determine whether an issue of fact is presented and not to try the issue. Louis Kamm, Inc., v. Flink, 113 N. J. L. 582, 596; 175 Atl. Rep. 62; Jaeger v. Naef, 112 N. J. L. 417; 171 Atl. Rep. 166; Torricelli v. Sebastini, 112 N. J. L. 458; 171 Atl. Rep. 526. Where the matters alleged in the affidavits submitted on a motion to strike raise controversial questions of fact, the pleadings should not be stricken. Stern v. State Wide Co., Inc., 113 N. J. L. 124; 172 Atl. Rep. 542. Where there is proof before the court which, if truthful, puts in question and dispute an issue in the cause, the court should deny the motion to strike. Meserole Securities Co. v. Dintenfass, 108 N. J. L. 298; 156 Atl. Rep. 465. The status of the counter-claim is less clear, but we are led to the conclusion that a factual controversy exists also as to it and that therefore it, along with the answer, should be reinstated.

To that end let the judgment be reversed.


text:
    THE STATE OF NEW JERSEY, EX REL. WILLIAM KINNARD, RELATOR, v. OTTO GEILER, PRANK B. DROUGHMAN, JOSEPH McDEVITT AND BOROUGH OF SEASIDE HEIGHTS, A MUNICIPAL CORPORATION, DEFENDANTS.
    Submitted October term, 1936
    Decided December 22, 1936.

      Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the relator, Ward Kramer and Albert Kushinsky.

    For the defendants, Percy Camp.

   The opinion of the court was delivered by

Case, J.

The matter is before us on rule to show cause why an information in the nature of a writ of quo warranto should not issue. The individual defendants are called upon to establish the authority by which they claim office as police officers or marshals in the police department of the borough of Seaside Heights. The action against the borough is aimed at the collection by relator of compensation for the period of his allegedly unlawful ouster from service in the department.

It appears, without dispute, that the mayor and council of the borough of Seaside Heights followed the practice of annually at the organization meeting in January, appointing the town marshals for a period of one year and, if they chose, engaging a new officer in the place of one whose appointive term had expired, a practice in which, however contrary to tenure rights, the persons concerned uniformly acquiesced except as hereinafter mentioned.

In the proceedings of the mayor and council the words “marshal” and “police officer” seem to have been used interchangeably without distinctive significance; and, in so far as the present issues are concerned, we shall consider that there is no distinction. Moore v. Borough of Bradley Beach, 87 N. J. L. 391; 94 Atl. Rep. 316.

William Kinnard had been employed by annual appointment as one of the two borough marshals for several years preceding, and until, January 1st, 1934. At the organization meeting of the borough council on the last mentioned date neither Kinnard nor his associate was reappointed. The appointees were Otto Geiler and Frank B. Droughman. There was, further, an appointment of Peter Zisgen for part time service. Kinnard, without objection, immediately surrendered his police equipment. He acquiesced fully in the termination of his employment and raised no question regarding his right to the office of marshal or his right to compensation. The year passed with no incident related to the issues.

At the organization meeting of the mayor and council, January 1st, 1935, the mayor announced for reappointment the names of the 1934 marshals. There was no confirmation by the borough council, but the marshals nevertheless continued to serve. At the end of thirty days, assuming to act under the statutory provision (Pamph. L. 1922, ch. 141, p. 248; Cum. Supp. Comp. Stat. 1911-1924, p. 168, § 24-3) that failing an appointment by the mayor within thirty days after a vacancy, or failing confirmation by the council for a like period of an appointment made by the mayor, the council shall have power to make the appointment, the borough council, on February 2d, 1935, appointed William Kinnard, William Brooks and Peter Zisgen as borough marshals for the balance of the year 1935. There had never been more than two full time marshals, and the budget for the then current year included appropriations for only that number. At that time the borough was without the services of an attorney, but shortly thereafter an attorney was employed, and he advised that Geiler and Droughman, the marshals who had been appointed in January of 1934, were, because of statutory tenure, still in office. The legal opinion was rendered February 23d, 1935, and the council immediately, and unanimously, by the whole membership except one absentee, adopted the following resolution: “Be it resolved that Peter Zisgen, William Kinnard and J. William Brooks be dismissed as marshals of the borough of Seaside Heights since they are not needed and their dismissal is necessary for economy, as soon as their present shift is over.” Accordingly, Kinnard, having been in service twelve working days, handed in such of his equipment as belonged to the borough and quit; and presumably the other two did likewise.

Early in April, 1935, Geiler, one of the two tenure members, was put under charges, and on April 26th, after hearing, was removed. The mayor, threatened by Geiler with a court review of the discharge, made temporary appointment, subject to removal by the mayor and council, of Joseph McDevitt. When the depositions were taken (June, 1935) on the instant rule the force continued to consist of Droughman, full time marshal, and MeDevitt, temporary appointee; and this leads us to observe that with the rule, by its terms, returnable before this court at the October term, 1935, and a record complete months prior to that time, no reason is given or appears why a full year should have elapsed before the matter was presented to us for determination.

On the 20th day of May, 1935, Kinnard instituted the proceedings that are now before us; and not until then did he dispute the legality of the termination of his employment on January 1st, 1934, or assert any rights incident thereto.

Had Kinnard made timety effort following the termination of his employment in January, 1934, it seems that he could have established his claim to tenure. For it is settled that under chapter 43, Pamph. L. 1913, borough marshals had (Moore v. Borough of Bradley Beach, supra), and that under section 3, article XVI, chapter 152, Pamph. L. 1917, p. 359; Cum. Supp. Comp. Slat. 1911-1924, p. 2153, § *136-1603 (the Home Rule act), these officers still have (Sprague v. Seaside Park, 9 N. J. Mis. R. 305; 153 Atl. Rep. 641; affirmed, 109 N. J. L. 347; 162 Atl. Rep. 582), tenure of. office subject to discharge for cause, on charges and after hearing, and subject, also, to dismissal for economic reasons, Harcher v. Hurley, 116 N. J. L. 18; 181 Atl. Rep. 309; Donovan v. Board, &c., Bayonne, 12 N. J. Mis. R. 792; 175 Atl. Rep. 143.

For thirteen months following the action of January, 1934, Kinnard, so far as the borough and its police arrangements were concerned, remained completely out of view; and the instant proceeding was not initiated for a further period of three months, a delay of one year and four months. Meantime, another had been appointed in Kinnard’s place, had performed police duty, had been paid for his services. O’Leary v. Common Council of South Amboy, 8 N. J. Mis. R. 559; 151 All. Rep. 53. Kinnardts inaction and apparent assent over that period is clearly one of laches which, in our opinion, bars the relator from any claim based upon tenure as of that time. Drill v. Bowden, 4 N. J. Mis. R. 326; 132 Atl. Rep. 499. By January, 1935, the tenure of (leiler and Droughman had become established and therefore these officers retained their position, regardless of the action of the mayor in appointing anew and of the council’s action or lack of action in confirming or failing so to do. Ho reason appears why a writ should issue against either Droughman or Geiler.

It is shown, satisfactorily to us, that the council, in appointing Kinnard and his two mates, had no intention of increasing the number of town marshals to five. Ho appropriation or other provision had been made for a force of that size. The action was upon the supposition that there were no other members then in the department and was comparable to the situation the year before when two regular members were appointed with Zisgen as a third to act when needed. It is open to question, and we do not now decide, whether the presence of the new men on the force for a brief period of thirteen working days because of a mistake by members of council in their understanding of the law, quiekfy corrected, brings into play either the tenure statute or the act of 1933, infra. The dismissals of February 23d were not due to political or other partisan preference. The couneilmen who had made the appointment were the ones who, discovering that the marshals of the preceding year were retained by law, voted without dissent to dismiss.

This leaves Kinnard in the assertion of his title to office depending solely upon the vacancy left by the removal of Geiler in April, 1935, and the application thereto of chapter 148, Pamph. L. 1933, which provides that “when the governing body of any municipality in this state shall, for reasons of economy, decrease the number of policemen or firemen in such municipality they shall proceed in the following manner: In the event that any policeman or fireman is removed from the department in which he is employed, such policeman or fireman shall be carried on a special list and in the event that any new appointments are made to such department, the policeman or fireman so removed shall first be appointed thereto, before any other person is appointed.” Even if the mayor and council were under the duty, on filling the vacancy caused by the removal of Geiler, of reinstating one of the three marshals who had been employed in February, 1935, and shortly thereafter dismissed, Kinnard’s claim for reinstatement is not superior to that of either of his two associates. The right of making a selection lies with the appointing authority. Quo warranto is not appropriate to compel performance of that duty.

We have next to consider whether the mayor, with confirmation by the council, had authority, on Geiler’s removal, to name McDevitt as temporary marshal. We conclude that he had. The need for immediate and continuous police protection and also for a reasonable opportunity (assuming the 1933 statute, supra, to be fully applicable) to make a selective choice from among the three eligible men on the preferred list created such an emergency as was within the provision of the Home Eule act, article XVI, section 3, 2 Gum. Supp. Comp. Stat., § *136-1603 : “it shall be lawful for the * * * person * * * having authority to employ members of the police department * * * to employ officers or men temporarily in case of emergency * * *.” See, also, Siebke v. Township Committee of Chester, 4 N. J. Mis. R. 226; 132 Atl. Rep. 341. Only a few weeks — less than four — -had elapsed between the taking on of McDevitt as a temporary officer and the institution of these proceedings.

The claim for compensation from the borough, standing by itself, is not properly before us.

We find that no pertinent question is in such doubt as to justify the continuance of the proceedings.

Leave to file the information is denied. The rule will be dismissed, with costs.


author: Neutze, C. P. J.

text:
    Camden County Court of Common Pleas.
    ALICE R. ADAMS, SARAH DeLECROIX REED AND JEANETTE ARTHUR, PLAINTIFFS, v. CAMDEN SAFE DEPOSIT AND TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided December 18, 1936.
    Por the plaintiffs, Carl Kisselman.

    Por the defendant, Frank S. Norcross (Walter S. Carroll, on the brief).
   Neutze, C. P. J.

This matter comes before the court on the motion of plaintiffs to strike the answer of the defendant and they ask for a summary judgment.

Elizabeth Clement died in this county on March 12th, 1933. Shortly thereafter defendant filed for probate in the surrogate’s office of Camden county the last will of decedent together with codicil. The will provided among other things as follows:

"6. I give, devise and bequeath all the rest, residue and remainder unto Camden Safe Deposit and Trust Company upon trust to hold and invest the same and to pay the net income unto my sister, Sarah C. Githens, during the term of her natural life.
“7. At and after the death of my said sister (a) I do give and bequeath the sum of $2,000 unto my niece Alice Adams.”

One of the plaintiffs in this suit is the same Alice E. Adams named as "mjr niece Alice Adams” in the aforesaid will.

On January 22(1, 1935, said Sarah C. G-ithens died.

On October 29th, 1934, according to the release on file in the office of the surrogate of this county, the defendant in this case, as trustee, received “the sum of $7,691.79.”

The aforesaid will also provides:

“7. At and after the death of my said sister: (b) I do give and bequeath the sum of $1,000 unto my niece Sarah DeLecroix.”

The sister referred to is Sarah C. Githens. The plaintiff Sarah DeLecroix Seed in this suit is the same person named in the aforesaid will as “my niece Sarah DeLecroix,” she having since intermarried.

Said will also provided:

“7. At and after the death of my sister: (c) I do give and bequeath the sum of $2,000 unto my niece Jeanette Arthur.”

The sister referred to is the aforesaid Sarah G. Githens. The plaintiff Jeanette Arthur in this suit is the same person named in the will as “my niece Jeanette Arthur.”

Plaintiffs contend and claim in their complaint that because it appears from said release that the defendant has the money in hand, the respective legacies of the plaintiffs should be paid and this suit is brought to enforce payment accordingly. The defendant contends in the answer hied in this case that securities passed under the release and not cash or money and the legacies cannot be paid at this time because no funds are available. Plaintiffs moved to strike the answer on the ground that it is both sham and frivolous but at the hearing of the motion counsel for the plaintiffs stated in open court that he would press only the notice to strike on the ground that the answer is sham and that he abandoned the claim that the answer is frivolous.

I will not strike the answer on this ground but will go to the merits of the controversy, which counsel agreed I might do, under the pleadings and affidavits submitted. I need not recite the facts again.

The question arises whether the defendant may now come into court and vary the terms of the release already on file in the surrogate’s office, by offering proof that it was not money that passed under the reléase but securities, which if proven and found as a fact would justify the defendant in saying to the plaintiffs, “we cannot pay your legacies because no money is available to meet the payments.”

The general rule is that oral evidence cannot be introduced to vary the terms of a written instrument. This is especially true of a release.

5 Wigmore on Evidence 311, § 243.2, iil. “Receipts and Releasessays:

“A receipt — i. e., a written acknowledgment, handed by one party to the other, of the manual custody of money or other personalty — will in general fall without the line of the rule; i. e., it is not intended to be an exclusive memorial, and the facts may be shown irrespective of the terms of the receipt * * *. But where the writing is itself the very act, as where it grants a discharge or release of a claim, or embodies a new obligation, it obviously falls within the rule, and its terms cannot be overthrown.”

Wigmore again says:

“A receipt for money paid is usually intended merely as an evidential admission by one of the parties, and such an admission is never conclusive; it is not an exclusive memorial of the transaction * * * but a release of a claim is usually intended as a final memorial.”

5 Wigmore 312, again says, Cowen, J., in M’Crea v. Purmort, 16 Wend. 460, 473:

“A release cannot be contradicted or explained by parol, because it extinguishes a pre-existing right. The payment of the money discharges or extinguishes the debt; a receipt for the payment does not extinguish the debt; it is only evidence that it has been paid. Not so of a written release; it is not only evidence of the extinguishment; but it is the extinguishment itself.”

This is especially true of judicial records. 5 Wigmore 348, § 2450, Judicial Records, 1814, Ellenborough, C. J., in Ramsbottom v. Buckhurst, 2 M. & 8. 565:

“The judgment roll imports incontrovertible verity as to all proceedings which it sets forth; and so much so that a party cannot be admitted to plead that the things which it professes to state are not true. Every part of the record, as long as it remains on the files of the court, must be taken to speak absolute verity.”

1 Greenl. Evid. 372 :

“Sec. 275 — When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing * * * and all oral testimony * * * is rejected.”

In the case before the court the defendant desires to introduce oral evidence to vary the terms of a written instrument which was executed for the benefit of the wards to the detriment of such wards.

To permit a fiduciary to come in and offer evidence of that kind is against public policy and against the interest of the helpless wards. In re Potter, 249 Fa. 158; 94 Atl. Rep. 465; L. R. A. 1916A, 639; Wiley v. Lashlee (Tenn.), 8 Humph. 716.

An exception to the general rule which rejects oral evidence of this nature will be made but only in favor of such third parties as desire to attack the contents of such an instrument.

1 Greenl. Evid. § 279.

In an action by a third person, one of the parties to a written document will not be permitted to vary its terms. Galbreath v. Cook, 30 Ark. 417; Henderson v. Mayhew (Md.), 2 Gill 393; 41 Am. Dec. 434.

In the Galbreath v. Cook case, the court said:

“So far as our researches have gone, we find the weight of authority to be that, whilst the party who attacks the deed for fraud may give parol evidence to show that the consideration is not such as is set forth in the deed * * * the rule does not extend to the parties to the deed.”

It is my conclusion, on the merits, that the consideration set forth in the release speaks for itself, “the sum of $7,691.79.” It can only refer to money or cash. Its plain meaning may not be changed by parol evidence.

Therefore plaintiffs are entitled respectively to judgment as follows:

Alice R. Adams, $2,000, with lawful interest from January . 22d, 1935, to date.

Sarah DeLecroix Reed, $1,000, with lawful interest from January 22d, 1935, to date.

Jeanette Arthur, $2,000, with lawful interest from January 22d, 1935, to date.