text:
    THOMAS NATALI, PLAINTIFF, v. SALVATORE VENTI MIGLIA AND FRED R. HUETTIG, DEFENDANTS.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    Por the rule, Aaron L. Simon.

      Contra, Kellogg & Chance.

   Pee Cubiam.

This action was brought to recover damages for personal injuries sustained by the plaintiff when a Pord truck ih which he was riding, owned by the defendant Salvatore Venti Miglia, collided with an automobile owned and driven by the defendant Pred B. Huettig. Joseph Venti' Miglia, a brother of the owner, was the driver and in control of the truck, and the plaintiff was riding in the truck as his invitee. There was a directed verdict, on the trial, in favor of the defendant Miglia, and the jury returned a verdict against the defendant Huettig for $750.

The plaintiff secured a rule to show cause why this verdict should not be set aside and a new trial awarded as to damages only, and urges as reasons therefor, that the verdict is (1) inadequate; (3) contrary to the court’s charge on the question of damages, and (3) against the weight of the evidence as to damages.

The testimony for the plaintiff was that his injuries consisted of a bruise on the head, a laceration of the right side of his head, a laceration of his nose, a long curved laceration of his wrist and a slight injury to the knee and leg; that the wounds on the face and wrist became infected requiring drainage; that the wound on the face required a doctor’s services for four weeks and that on the wrist for six or seven weeks, after which electrical and lamp treatments were applied by a nurse. The total bill for medical attention was $75.

The plaintiff testified he was confined to his bed for two weeks after the accident, and to his home for six weeks more, that he was unable to work for three months after the accident. He, a stone cutter, was in the monument business, and testified he employed a man during his incapacity at a wage of $60 a week for eleven weeks, and thereafter employed another man at $12 a day for two or three days a week during a period of a month and a half because he had not yet entirely recovered the use of his hand as a result of the cut on the wrist.

Evidently the jury by rendering a verdict in an amount of but $750 did not believe the paintiff’s story as to these payments, or if the payments were made, that they were made necessary because of his incapacity flowing from this accident. Why? Neither of the men, so claimed to have been employed by the plaintiff, was called as a witness or even named in the testimony. Their absence was not explained; and there were no records produced, or other corroboration advanced, to show the alleged payments to these men, or to show any loss in plaintiff’s mason business. Besides, it is reasonably probable that substantial doubt of the reliability of plaintiff’s testimony as to the effect and extent of his injuries, and the measure and length of his incapacity, was raised in the jurors’ minds by his admissions under cross-examination. While he had repeatedly asserted he had been confined to bed for two weeks immediately after the accident, and to his home for six weeks more, he finally admitted that lie was out of bed two days after the accident to appear as a witness in the police court at Fairlawn, his attorney was with him; and that on one occasion he wras examined by a doctor at his lawyer’s office and on another occasion he was examined by a doctor at his attending physician’s office, both wdthin eight weeks after the accident.

We do not find that the verdict is inadequate, or against the weight of the evidence as to damages, or contrary to the court’s charge on the question of damages.

The rule to show cause will be discharged.


source: Caselaw Access Project

author: Clbaky, C. C. J.

license: Public Domain

text:
    VETO PALUMBO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FILOMANA PALUMBO, DECEASED, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. PETER CAGGIANO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MARY CAGGIANO, DECEASED, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. JOHN DI MASSIMO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FRANK DI MASSIMO, DECEASED, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. JOSEPH GEORGE, Jr., BY JOSEPH GEORGE, Sr., HIS NEXT FRIEND, AND JOSEPH GEORGE, Sr., INDIVIDUALLY, PLAINTIFFS, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. MARY GEORGE AND JOSEPH GEORGE, Sr., PLAINTIFFS, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. ROSE PALUMBO AND MARY PALUMBO, BY THEIR NEXT FRIEND, VETO PALUMBO, AND VETO PALUMBO, INDIVIDUALLY, PLAINTIFFS,' v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS. SAMUEL GEORGE AND SARAH GEORGE, BY THEIR NEXT FRIEND, JOSEPH GEORGE, Sr., AND JOSEPH GEORGE, Sr., INDIVIDUALLY, PLAINTIFFS, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; JOHN A. FORSTER, TRADING AS FORSGATE FARMS, AND MILTON OMAN, DEFENDANTS.
    Decided February 1, 1932.
   Clbaky, C. C. J.

The above cases, seven in number, were tried at the Middlesex County Circuit, commencing on April 27th, 1931, and ending on May 5th, 1931. The cases although each was separate and distinct from the other, were tried together, because of the fact that each arose out of the same ac- and servant of the defendant Forsgate Farms. As the truck, cident and in each case the same defendants were named.

The accident out of which these causes arose occurred about five-thirty p. m. on the 28th day of August, 1929, at a crossing of the defendant Pennsylvania Eailroad Company, where it crossed a public highway known as Buckalew avenue, in the borough of Jamesburg, Middlesex county. On the day in question the plaintiffs had been working for the defendant Forsgate Farms and were returning to their homes in a truck belonging to that defendant, which truck was being driven by the other defendant Oman, who was admittedly the agent in which the plaintiffs were riding, was attempting to cross at the intersection it was struck by a train of the Pennsylvania Railroad Company, and as a result of this collision, three of the passengers in the truck were killed and four others were injured. Some of the injured plaintiffs were minors, and in such cases the actions were brought by their fathers as next friend and individually. The trial resulted in a verdict in favor of the plaintiffs in each case and against all three defendants, and the amount returned in each case was as follows: in favor of the plaintiff, Veto Palumbo, administrator ad prosequendum of Filomana Palumbo, deceased, and against all the defendants for $15,000; in favor of the plaintiff, Peter Caggiano, administrator ad prosequendum of the estate of Mary Caggiano, deceased, and against all the defendants for $15,000; in favor of the plaintiff, John Di Massimo, administrator ad prosequendum of the estate of Frank Di Massimo, deceased, and against all the defendants for $6,000; in favor of the plaintiff, Joseph George, Jr., by Joseph George, Sr., his next friend and against all the defendants for $10,000; in favor of the plaintiff, Joseph George, Sr., and against all the defendants for $100; in favor of the plaintiff, Mary George and against all the defendants for $2,000, and in favor of the plaintiff, Joseph George, Sr., and against all the defendants for $500; in favor of Rose Palumbo, by her next friend, Veto Palumbo, and against all the defendants for $500, and in favor of the plaintiff,’ Veto Palumbo, and against all the defendants for $200; in favor of plaintiff, Mary Palumbo, by her next friend, Veto Palumbo, and against all the defendants for $500, and in favor of the plaintiff, Veto Palumbo, and against all the defendants for $75; in favor of the plaintiff, Samuel George, by his next friend, Joseph George, Sr., and against. all the defendants for $250, and in favor of the plaintiff, Joseph George, Sr., and against all the defendants for $50; in favor of the plaintiff, Sarah George, by her next friend, Joseph George, Sr., and against all the defendants for $50 and in favor of the plaintiff, Joseph George, Sr., and against all the defendants for $10.

Buies to show cause were obtained by each of the defendants in each separate case and the reasons assigned were the same in each case. For the defendant Pennsylvania Bailroad Company, they were as follows:

1. Because the verdict is against the weight of evidence as to any negligence on the part of the defendant the Pennsylvania Bailroad Company.

2. Because the verdict is clearly against the weight of evidence as to any inference of negligence on the part of the defendant the Pennsylvania Bailroad Company.

3. Because the preponderance of evidence did not show negligence on the part of the defendant, and to find the defendant guilty of negligence, not an inference of negligence, must be proven.

4. Because the only claim of negligence against the defendant was that while the statutory signal, by blowing the whistle of the locomotive which struck the truck, was given and blown, it was not blown nine hundred feet from the crossing, at which the accident happened, but the blowing of the whistle, by the clear weight and preponderance of the evidence, was shown to have been at least nine hundred feet from the crossing when the whistle was first blown, and not four hundred and sixty feet from the crossing, as claimed by the plaintiff.

5. Because the blowing of the whistle of the locomotive four hundred and sixty feet from the crossing where the accident happened, and not nine hundred feet from such crossing, was not the proximate cause of the happening of the accident.

6. Because the jury did not give proper consideration to the number, character and appearance of the great majority of the witnesses who swore that the whistle was blown at least nine hundred feet from the crossing where such accident happened.

7. Because the damages awarded, to wit., $15,000, are very excessive, and out of all proportion, to the pecuniary loss sustained by the plaintiff.

Por the other two defendants they were as follows:

1. That the verdicts were against the clear weight of the evidence.

2. That the negligence of the railroad company was the proximate cause of the accident.

3. That the verdicts were excessive.

Although one of the reasons assigned in each case was that the verdicts were excessive, it was agreed by counsel for each defendant, that in any case where the amount of the verdict did not exceed two hundred dollars that such reason as to excessiveness would not be urged.

The reasons advanced by each defendant as to why the verdicts should be set aside are practically the same and may be grouped into two classes, first that the verdict against each defendant was against the weight of the evidence as to negligence and secondly that the verdicts are excessive. The defendant Pennsylvania Railroad Company further contends that it was not guilty of any negligence, and that even if it was, that such negligence was not the proximate cause of the accident.

The accident occurred about five-thirty in the afternoon. It was still bright, and according to the testimony of the defendant Oman himself, as he approached the crossing he looked and saw no train ’coming from either direction. He further testified that he could see in the direction from which the train was coming, for a distance of about one thousand one hundred feet. When he was within forty feet of the track there was nothing to obstruct the view of the driver for this distance. He testified that when he first saw the train the front of his truck was over the second rail. It was the duty of the driver of this truck to use reasonable care to protect plaintiffs, and to not only look, but look effectively, as he approached this place of known danger, and under the circumstances, it being still daylight and the weather clear, whether or not he used that care was purely a question for the jury. By its verdict, the jury decided that he did not,, and such a verdict was clearly justified by the evidence in the case. As to the defendant, Oman, and of course as to his-principal, Forsgate Farms, there is nothing in the case to justify a finding that the verdict was against the weight of the evidence.

The negligence charged against the defendant railroad is that it failed to give the signals as required by the statute and that this failure was one of the proximate causes of the accident. There was a conflict of testimony on this point, and upon that question alone, the case was submitted to the jury, with a specific charge by the court that if the jury found that if the signals were given as required by the statute, that then the defendant railroad could not be held responsible.

The law requires that a whistle be sounded at intervals, or a bell of specified weight be rung at a distance of three-hundred yards from the crossing and continuing until the-crossing is reached. Comp. Stat. 1910, p. 4236.

There were a great many witnesses produced upon this question, some seven or eight for the plaintiffs, other than-the plaintiffs themselves, saying that it was not given within the prescribed area, and a great manjq some sixty or more in number, testifying for the defendant railroad as to where-they heard the signal. Most of the defendant’s witnesses were unable to designate with any degree of certainty where the-signal was first given, the enginer saying it was at the whistle post, others fixing some other place from which it could be-inferred that it was given near the whistle post, while a great many others were of no help in fixing definitely where the-point was, and from whose testimony it could be gathered that the plaintiffs’ story was the correct version of what, occurred. There was much confusion on this point, so much so, that after a careful reading of the whole testimony consisting of over eight hundred and fifty pages, and of more-than one hundred and seventy pages of briefs submitted by counsel for the three defendants, which briefs consisted in a large part of quotations from the testimony, that the court finds itself in the position where it cannot say that the jury was not justified in finding as it did.

It was a pure question of fact which the jury had to pass upon, and this court does not feel that the finding of the jury should be disturbed. To do so under this conflict in the testimony would be merely substituting the opinion of the court for that of the jury. This of course cannot be done. The grounds upon which a verdict should be set aside are stated in Boesch v. Kick, 97 N. J. L. 97, as follows:

“The ground upon which a verdict will be set aside as against the weight of evidence has been stated by this court many times, suffice it to say, it must be so clear as to give rise to an inference that the verdict was the result of mistake, passion or prejudice. It will not be set aside, although in the opinion of the court the jury might upon the evidence have found otherwise (Queen v. Jennings, 93 N. J. L. 353, or because the court if serving ás a jury would have found differently. Dickerson v. Payne, 53 Atl. Rep. 699.”

The weight of the testimony and the credibility of the witnesses are the determining factors for the jury. Of course the number of witnesses properly enter into the determination of the issue, but in many cases this .of itself is not the only question. That is especially true in the present case, where even many of the witnesses for the defendant leave much doubt as to where the -signals were actually- given. If from the witnesses it could be found that the signals were not given until four hundred and fifty feet from the crossing, this of course would not be in compliance with the statute.

It is further argued by counsel for the railroad company that inasmuch as defendant Oman says he did not see the train, and from the way he drove upon the track, that it would not have made any difference even if the Pennsylvania Railroad Company had given the signals nine hundred feet away from the crossing, or at any other place, and that, therefore, the negligence of the railroad, if there was any-, was not the proximate cause of the accident, but that it was Oman’s negligence which was such proximate cause. There would be merit in this argument if Oman was the plaintiff, but the question here is, as to what effect the failure to give the signals, had upon these plaintiffs. It may be that such signals if given might not have had any effect upon the defendant Oman, but it doesn’t follow that the same would have been the result upon these plaintiffs. They had a right to have the signals properly given so as to give them the right to act for themselves under such conditions. If such signals were given and they could have protected themselves from injury, and the failure to properly give such signals prevented them from taking steps that they might otherwise have taken, the jury if it believed such to be the fact would have been justified in finding that the failure to give these signals was one of the proximate causes of the collision and subsequent injury to the plaintiffs. Under such circumstances, the negligence of all the defendants resulted in the injury to plaintiffs, and, while such negligence may have differed somewhat as to degree, neither of the defendants could escape responsibility for the entire damage.

Counsel for the defendant railroad further argues that as against mere negative testimony of the failure to give the signals, the positive testimony of their having been given, should control. "We are in accord upon that abstract proposition, but from the testimony in this case, such a rule has no application. There was no negative testimony, as such, in this ease. Every witness both for the plaintiff and defendants testified positively that the signals were given, but the question raised by such testimony was as to where they were given. It raises an entirely different situation from that found in Holmes v. Pennsylvania Railroad Co., 74 N. J. L. 469, and other cases in which it has been held that a mere “I did not hear” is not sufficient as against the positive proof that they were given. In this case the witnesses were not only in a position to hear and to have their attention directed to the signal, but they actually heard them and testified positively that they were first given at a point, which if correct, would not be a compliance with the statute.

The only other question to be determined is as to the excessiveness of the verdicts. There can be no question upon this ground except in the cases of John Di Massimo for $6,000, Peter Oaggiano for $15,000, Veto Palumbo for $15,000, Joseph George, Jr., for $10,000 and Mary George for $2,000. The other verdicts are so small as require no comment. After carefully reading the testimony in the cases mentioned above, I have come to the conclusion that the verdicts for $15,000 in each case wherein a wife and mother was-killed while quite high are not excessive. The same is true-in the case of Mary George for $2,000. However, in the case-of Joseph George, Jr., I have reached the conclusion that the-verdict of $10,000 is excessive by at least $3,000, and in the case of John Di Massimo is excessive by at least $1,500. If the plaintiffs in these two cases will accept the sum of $7,000 in the Joseph George, Jr., case and $4,500 in the Di Massimo case, the rules to show cause will be discharged,, otherwise they will be made absolute.

In all the other cases the rules to show cause obtained by each defendant are discharged, with costs.


author: Porter, S. C. C.

text:
    AMERICAN EQUITABLE ASSURANCE COMPANY, A NEW YORK CORPORATION, AND NEW YORK FIRE INSURANCE COMPANY, A NEW YORK CORPORATION, PLAINTIFFS, v. CHICAGO LLOYDS, AN UNINCORPORATED ASSOCIATION, AND ASSOCIATED UNDERWRITERS, INCORPORATED, AN ILLINOIS CORPORATION, DEFENDANTS.
    Decided February 3, 1932.

      For the .plaintiffs, Lionel P. Kristell&r.

    For the defendants, Wurts £ Plympion (Louis 0. Bergh, .of counsel).
   Porter, S. C. C.

The motion is to strike out the answer because it is claimed to be sham and frivolous.

The suit is to recover on a fire loss by the plaintiff insurance companies, insurers, against the defendants. The .amount sued for is $6,171.19.

It appears from the pleadings and affidavit that H. M. ■Gould as agent for the defendants authorized a firm of insurance agents and brokers, Brodie-Heebner-Norton, Limited, in San Francisco, to issue a reinsurance contract of a certain risk on July 25th, 1930. This firm issued a binder purporting to bind the defendants to the plaintiff for reinsurance •on property of the North Pacfie Grain Growers, Incorporated, who suffered a loss by fire on October 27th, 1930. The binder was extended to October 1st and then to November 1st.

The defendants deny liabilityr. They say that the broker had no authority to issue the binder or the renewals; that there was no consideration for the same; that no premiums were paid; that the conditions of any authority which existed were not complied with; and, further, that the contract was void under the laws of California.

In support of the motion the plaintiff submits an affidavit «of John A. Campbell, a vice-president of the plaintiff American Equitable Assurance Company, who says he has full knowledge of the facts. It does not appear that he personally acted in the matter, but rather it seems clear that his information is obtained otherwise.

Mr. Campbell’s affidavit is answered on behalf of the ■defendant by Cyril A. Farwell, an assistant secretary of the defendant Associated Underwriters, Incorporated, who likewise says he has full knowledge of the facts but whose knowl•edge seems to be of the same character as that of Mr. Campbell. This affidavit is more of an argument in answer to Mr. ‘Campbell than it is a recital of known facts.

Both affidavits are clearly based on the documentary evidence, copies of which are attached, and none of which is in dispute.

Then there is an affidavit for the defendants of Victor ECappa, a New York and California lawj’er, who argues the-statute law and decisions of California.

The defendant also has an affidavit of its agent, H. M. Gould, who was one of the parties to the original transaction and who made the terms of the contract.

The issues raised by the pleadings and exhibits are not-disposed of by these affidavits which are made up, as stated,, largely of argument, conclusions and hearsay.

It does not appear to me after considering the pleadings,, affidavits, exhibits and briefs that the answer is frivolous or sham. While some of the defenses do not impress me very strongly, there are some important questions of fact raised.. There is no proof that the binder was in fact delivered or that it was subsequently extended twice, or by whom, and under what circumstances and authority. Nor is there sufficent proof of the loss.

These affidavits do not satisfy me that there is no defense- or that the defense is a mere pretense.

The motion is denied, without costs.


author: Per Curiam.

text:
    MINNIE MAY HOLT, PLAINTIFF, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY AND ERIE RAILROAD COMPANY, DEFENDANTS.
    Submitted October 16, 1931
    Decided February 5, 1932.

      Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff, Peter J. McGinnis.

    Por the defendants, George S. Hobart and Ralph E. Cooper.

   Per Curiam.

Plaintiff has a verdict of $1,500 for damages alleged to have been sustained on January 30th, 1917, at the Jersey City terminal of the defendant Brie Eailroad Company by slipping and falling. The reasons argued are that the court should have nonsuited and refused to do so and that the verdict is against the weight of evidence.

There was a contradiction in the testimony as to the place where plaintiff slipped and fell. That she did slip and fall appears not only by her own testimony but that of defendants’ witnesses, Shanley and Swan, the first of whom saw her fall, and the second “saw a streak about six or eight inches long where she had slipped with her heel.” The witness Brundage, then a claim agent for defendant, was promptly summoned and went to the station, found the plaintiff in the woman’s room, talked with her, and went out on the platform with her, where she pointed out the place. These witnesses for defendants locate it at the gate leading from the waiting room to tracks nine and ten. Plaintiff locates it at a gateway at right angles to the other and leading north from the cross passage to the platform between tracks eleven and twelve.

She was a passenger on an incoming train at eight-twenty-five a. m., had just alighted, and was on her way to the ferry or the exit. The charge of negligence in the complaint is a broad one, alleging snow, ice, slush, debris, rubbish and dirt, platform and walks in uneven and dangerous conditions and out of repair, and that she was caused to slip or fall upon the said ice, snow, debris, rubbish and dirt so allowed to remain on the said platform, &c.

The evidence for the defendants is that there was no ice or snow at either place. There had been a fall of some two inches several days before, bnt where it had not metled it had been swept away. At the north gate designated by plaintiff there was more exposure to the weather than at the other, which was well under roof. Plaintiff’s story is in substance that there was snow piled up as she turned south to pass through the gate, she slipped and fell and in the act of falling noticed there was ice, &e.

The great weight of the evidence indicates that the fall was at the other gate, and the physical conditions also point to that theory. Prom the north gate southerly to the midway line between tracks eight and nine, a distance of thirty feet or more, the flooring slopes downward at one-half inch to a foot, or a four per cent, grade, and the boards run longitudinally, as shown by the photograph in evidence. Shanley testified: “I saw Miss Holt as she came down the incline, and just as she got at the incline, where this cross is, her feet shot out from under her * * * There was no snow * * * or ice * * * the platform was slightly damp, due to moisture from the wood.” Swan testified: “I found that the platform was damp from the footprints of the passengers walking through * * * and I saw a streak about six or eight inches long where she had slipped with her heel.” There was no snow, nor ice, nor mud.

.We think the verdict clearly against the weight of evidence if based on snow or ice or mud at the north gate; and if the jury were at liberty to consider the other gate, there was no evidence of snow, ice, or mud there. If the complaint had so charged and the court had so instructed the jury, they could probably have considered the evidence as indicating failure to use proper precautions against falling on this incline, where the slippery condition of the planks and the grain of the wood favored just such an accident as seems to have happened there. But even if the complaint can be said to cover such a situation—which is most doubtful—the court did not present the case to the jury on any such theory, and if not, it cannot be availed of to support the verdict.

The rule to show cause will be made absolute.


author: AoKEBSOsr, C. C. J.

text:
    DINA BOELE, ADMINISTRATRIX AD PROSEQUENDUM OF THE GOODS AND CHATTELS OF ANTON M. BOELE, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, A CORPORATION OF DELAWARE, DEFENDANT. MARY HENDERSON, ADMINISTRATRIX AD PROSEQUEN-DUM OF THE GOODS AND CHATTELS OF THOMAS J. HENDERSON, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, A CORPORATION OF DELAWARE, DEFENDANT.
    Decided February 3, 1932.
    Por the plaintiffs, James A. Coolahan and William George.

    Por the defendant, McDermott, Enright Carpenter.

   AoKEBSOsr, C. C. J.

This matter comes before me upon a rule to show cause why the verdicts of $38,000, for the plaintiff, Dina Boele, administratrix, and $33,900 for the plaintiff, Mary Henderson, administratrix, should not be set aside and a new trial granted upon the grounds that the verdicts are against the weight of the evidence and are excessive.

I have carefully read the voluminous transcript of the evidence while the case is still fresh in my mind, and have reached the conclusion that the verdicts are not against the weight of the evidence.

In regard to the verdict of $38,000 in favor of Dina Boele, administratrix, it appeared that the deceased, Anton M. Boele, was thirty-seven years of age at the time of his death, and his wife, the plaintiff, twenty-eight. There were no children, and the deceased had been turning over to his wife from sixty ($60) dollars to one hundred ($100) dollars per week for about two years before his death—earned principally from speculating in the stock market. There is no evidence as to the average of such weekly payments, nor how much thereof was required for the living expenses of the deceased. The estate turned over to the widow amounted to approximately $28,000. Taking everything into account, I am convinced that all of this verdict over $25,000 is excessive.

If the plaintiff, Dina Boele, administratrix as aforesaid, will consent to accept a reduction of this verdict to $25,000, she may enter judgment for that amount. Otherwise the rule to show cause will be made absolute and a new trial ordered as to damages only.

In regard to the verdict of $33,900 in favor of Mary Henderson, administratrix, it appeared that she was fifty-eight years old, and her son twenty-seven years at the time of his death. He was unmarried and living with his mother to whom he turned over forty ($40) dollars to fifty ($50) dollars per week, realized principally from speculations in the stock market in partnership with his friend the above-mentioned Anton M. Boele. Here again there is no evidence as to the average of such weekly payments, nor how much thereof was required for the board of the deceased. The estate received by Mrs. Henderson amounted to approximately $25,000. Considering the matter in the most favorable light for Mrs. Henderson, it would appear that the verdict should not exceed $15,000.

If the plaintiff, Mary Henderson, administratrix as aforesaid, will consent to a reduction of this verdict to $15,000, it may stand for that amount. Otherwise the rule to show cause will be made absolute, and a new trial ordered as to damages only.


author: Ackeeson, C. C. J.

text:
    F. EUGENE TUTHILL, PLAINTIFF, v. HUDSON AND MANHATTAN RAILROAD COMPANY, DEFENDANT.
    Decided February 1, 1932.
    For the plaintiff, Carey & Lane.

    For the defendant, Collins & Corbin.

   Ackeeson, C. C. J.

This is a rale to show cause why the verdict of $7,500 for the plaintiff should not be set aside .and a new trial granted for the following reasons:

“1. The verdict is excessive. 2. In accordance with the weight of the evidence the verdict is excessive.”

After carefully reading the transcript of the testimony, while the case is still fresh in my mind, I have reached the ■conclusion that the weight of the evidence will not justify a verdict in excess of $3,750. If the plaintiff will consent, before February 15th, 1932, to a reduction of the verdict to $3,750, it may stand for that amount. Otherwise the rule to show cause will be made absolute and a new trial ordered ■as to damages only.


author: Pee Cueiam.

text:
    GRACE E. EATLEY, PLAINTIFF-RESPONDENT, v. FRANK A. MEYER, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided February 5, 1932.

      Before Gummeee, Chief Justice, and Justices Pakkek. and Case.
    Por the appellant, Edward A. Marlcley and Charles W.. Broadhurst.

    Por the respondent, John G. Flanigan.

   Pee Cueiam.

This is a suit for alleged negligent malpractice, the defendant being a dental surgeon. The substance of the claim is-that he negligently diagnosed and treated a case of mouth infection as a fractured jawbone. Plaintiff had a verdict and judgment of $1,300 and defendant appeals.

Of the eleven grounds of appeal assigned, only three are-argued, viz., refusal to nonsuit; refusal to direct a verdict, for defendant, and refusal to charge the eighteenth request: to charge.

The first two grounds can he considered and disposed of together, as both are based on the proposition that there was. no evidence of negligence of the defendant.

Prom the testimony, the jury were entitled to find the-following facts:

Plaintiff’s teeth needing attention, she went to a young dentist named Bodner, who found a number of teeth in badi order, extracted several, prescribed a mouth wash, and told! her to come back the next day. She did come back six days'later, and he found she could not open her mouth. Preferring to have the case handled by a more experienced practitioner, he sent her to the defendant, who held himself out as a “dental specialist, X-rays” and testified for plaintiff that he was in fact a specialist and expert in those particulars.. He made an examination and diagnosed a broken jaw. He took two X-ray negatives, one of which failed because the-patient moved, and the other was criticized by another witness as unsatisfactory because over-exposed; and also insufiicient for its purpose. He wired the teeth and sent the plaintiff home. That night she was in great pain and called in Dr. Introcaso who concluded there was an infection. Over night, plaintiff’s condition became decidedly worse, with high temperature. Dr. Introcaso sent for defendant, and at a consultation insisted there was an infection—which defendant denied, and requested that the wires be removed, which defendant refused to do. Dr. Introcaso asked for the X-ray picture and defendant said he would bring it, but did not do so. The temperature continued to rise, there was a large swelling; other physicians were called in and there were more consultations, the condition of the plaintiff growing hourly more serious. After three days of disputations, during which defendant adhered tenaciously to the broken jaw diagnosis, he consented to remove the wires and the subsequent examination disclosed an extensive infection, which cleared up under appropriate treatment. Several X-rays taken by the witness Dr. Bassell showed there was no fracture; and from her testimony it would appear that the X-ray taken by defendant afforded no support for such a diagnosis. Hot only this, but the testimony justified a finding that defendant not only wrongly diagnosed and treated but obstinately refused to acknowledge his error and seriousfy endangered the life of his patient, not to speak of causing her several days of severe suffering. Plaintiff’s counsel argues and correctly, as we think, that the defendant as a specialist and claiming to be an expert, was held to a higher degree of care and skill than the ordinary practitioner. Coleman v. Wilson, 85 N. J. L. 203. In this situation it would have been error to take the case from the jury.

Defendant submitted twenty-five requests to charge, and it is to the credit of the trial judge that after receiving this salvo of verbal artillery, he should be complained of on one ground only. The request was as follows:

“18. The plaintiff has testified that between December, 1927, and February, 1928, she was ill with pneumonia; between July, 1928, and August, 1928, she was ill with tonsilitis; in February, 1931, she was ill with bronchitis. I charge you as a matter of law that the plaintiff cannot recover any damages caused by these diseases as- there is no proof that any act of this defendant was the proximate, competent, producing cause of those diseases.”

In response to this-, the court said:

“The eighteenth request to charge relates to the plaintiff’s testimony. The court is not obliged to remember testimony and will deny the eighteenth request for that reason. However, I charge you part of the eighteenth request. I charge you, as a matter of law, that the plaintiff cannot recover any damages caused by these diseases as there is no proof that any act of this defendant was the proximate, competent, producing cause of these diseases.

“You will understand what the court has said in this regard about the aggravation of those latent diseases, if they were latent.”

The complaint now is that the defendant was entitled to have the diseases mentioned in the request excluded from consideration as contributing to the damages, and that the omission of the first part of the request made it ineffective in that particular. But the point was fully covered elsewhere in the charge. The jury were several times instructed that the defendant could not be mulcted for anything not the result of his treatment. He pointed out that there might he difficulty in separating results of the treatment from ailments due to other causes. Finally, before the jury retired, the court called for exceptions, and in the course of these occurred the following colloquy with counsel in the presence of the jury:

“Under your main charge, I take exception to that part of your charge in which you instructed the jury as to the claims for headache, vertigo and nervousness; that while your honor could not recollect the facts in the evidence as to this proof, evidence in regard to this claim of permanency, that they could decide if they found from the evidence that there was an aggravation, damages for those claims.

“The court—-Here is what the court means and I so charge the jury now, that in regard to pain and suffering, nervousness, dizziness and vertigo, the jury is only to allow, if they do allow anything, compensation for those ailments which were proximately caused by the unskillful treatment alleged to have been rendered by Dr. Meyer, if any there was. The court has charged the jury that it does not remember that there was any permanent illnesses of that character.

“Mr. Broadhurst—Yes, but I understood from your charge that you permitted them to determine from the evidence, whether they remembered any evidence of that character, and if they did, they could award damages for permanency. My contention is that there was no evidence in the case to warrant the jury-

“The court—The court will so charge the jury that there was no evidence, as the court remembers, on those things, and that being so, they are not to allow for those items.”

These instructions were as favorable to defendant as he was entitled to expect, and it is plain from the moderate amount of the verdict, that the jury could have been under no misapprehension of the elements of damage that they were entitled to consider.

We find no harmful error, and the judgment will accordingly be affirmed.


text:
    JULIA SAMUEL, IMPLEADED, ETC., PLAINTIFF, v. WILLIAM CHRISTIANSEN, DEFENDANT.
    Submitted October 16, 1931
    Decided February 5, 1932.

      Before Gummere, Chiee Justice, and Justices Parker and Case.
    Por the plaintiff, Jacob H. Bernstein.

    Por the defendant, James F. Patten.

   Per Curiam.

The plaintiff, driving her own Pord car, and having a friend named Julia Cervencik as an invited passenger, was driving easterly on the road from South Amboy to Keyport, on her way to a bathing beach which lay to the north of the road and required her in order to go there to turn off the main road to the left and enter the side road leading to the beach, which side road was at a short distance west of the top of a rise in the main road. It was July 28th, a Saturday afternoon between two and three p. m. Plaintiff testified that there were cars behind as well as in front of her, going towards Long Branch, but only an occasional car going the other way. Defendant’s testimony was that the shore-bound traffic was a continuous line and that there was little or nothing moving west besides his own car. Plaintiff turned to her left across the main road to enter the side road, and her car had all but left the concrete when it was caught on the right rear by the right side of defendant’s car, and plaintiff’s arm severely lacerated. ' She recovered a verdict of $3,000 for personal injuries and consequent expense and loss of wages, and $50 for damage to the car. Defendant counter-claimed for damage to his car but so far as the postea shows the jury did not specifically pass on the counter-claim.

The points made will be considered in order. The first is that the court refused to nonsuit for lack of proof of defendant’s negligence. We cannot find that this was put forward as a ground of nonsuit. As we read the remarks of counsel when moving for a nonsuit, the argument seems to have been that the testimony for plaintiff as to the circumstances of the accident was not credible. That would naturally be for the jury. Next, that there should have been a nonsuit for contributory negligence. What we have just said covers this also. Next, that the verdict is against the weight of evidence. As to this, the testimony presents the usual contradictions for a jury to consider and resolve. Plaintiff testified that she stopped, allowed two cars to pass from behind, saw others at a safe distance to the rear, and nothing coming in front, made a turn, put her left hand out and was almost off the pavement when she felt her car struck behind. Her friend testified much to the same effect, except that she saw defendant’s car coming about seventy-five feet away as the front wheel of the Pord left the pavement. Defendant claimed that there was no hand signal and that the Pord in effect pulled out of a line and across in front of him about three car lengths away. On this dispute in the evidence the questions of negligence and contributory negligence were plainly for the jury, and we are unable to see that they disregarded their duty in finding as they did. As to absence of verdict on the counter-claim, the judge told them that if plaintiff should recover defendant could not recover on the counter-claim; so that if necessary the postea may be amended to include a suitable finding in that regard, even to the extent of moulding the verdict if in fact the jury made no mention of the counter-claim.

We cannot say the verdict is excessive. The injury was painful, plaintiff was incapacitated from work for about a year, has a permanent scar, and was put to expense for treatment and medicines.

The rule will be discharged.


text:
    ALEXANDER F. SCHAACK AND WILLIAM T. EARLEY, PLAINTIFFS-RESPONDENTS, v. J. A. HOLMES CONSTRUCTION COMPANY ET AL., DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided February 5, 1932.
    Before Gummere, Ciiiee Justice, and Justi&es Parker and Case.
    Por the appellant, Howard Maclcay.

    Por the respondents, John G. Selser.

   Per Curiam.

This is an appeal from a judgment for the plaintiffs severally for personal injuries arising out of a collision between defendant’s truck, moving northward on Johnson avenue in Dumont, Bergen county, and á Pord car owned and driven by plaintiff Earley, in which plaintiff Schaack was riding as a passenger but helping Earley by acting as lookout at the street crossing. The Pord, an old car, was wrecked and forced over to the northwest corner. The truck after the accident was on the east side of Johnson avenue a few feet beyond the corner. There was the usual contradictory testimony as to the speed of each vehicle.

There are ni'ne grounds of appeal, but the fourth to the seventh, inclusive, and the ninth, point to no judicial action claimed to be erroneous. The eighth, refusal to charge certain requests, is ineffective as within the ruling in State v. Blaine, 104 N. J. L. 325, and numerous later cases. The third is refusal to nonsuit as to plaintiff Schaack at the close of the plaintiff’s case. Ho motion to nonsuit Schaack was made at that point. The court was asked at the conclusion of the case to direct a verdict against Schaack, but its refusal so to do is not assigned for error. The only remaining grounds are the first and second, viz., refusal to nonsuit and to direct a verdict as to Earley.

The motion to nonsuit Earley was predicated on contributory negligence alone; that to direct, on absence of defendant’s negligence as well.

Whatever might be said of weight of evidence on a rule to show cause, that question is not before us now. As to negligence of the truck driver, a high rate of speed was inferable from the testimony, and he himself testified that he had seen the plaintiffs approaching on the road to his left, but that “there was ample time to pass them if they had not been going at the rate of speed they were going;” and that he kept on. An inference of negligence was deducible from this and other testimony.

As to contributory negligence, there was testimony that when plaintiffs approached the intersection, Earley shifted to low gear and continued to the corner; that at twenty to thirty feet from the corner Schaack, the witness, could see about sixty feet down Johnson avenue; that they “continued to the corner, and when I looked, the windows were open on my right, of the door, and I looked down to my right and I saw nothing.”

It may be assumed that any negligence of Schaack as a lookout was imputable to Earley, who had asked him to act in that capacity. Granting this, the question remains whether the evidence demonstrated as a court question that either had been shown guilty of contributory negligence. We incline to agree with the trial judge that the matter was for the jury. It follows therefore that the judgment will be affirmed.


author: Smith, C. C. J.

text:
    SCOREDISC SERVICE CORPORATION, PLAINTIFF, v. MORRIS FELDMAN, DEFENDANT.
    Decided February 6, 1932.
    Por the plaintiff, Herbert M. Ellend.

    Por the defendant, George H. Rosenstein.

   Smith, C. C. J.

On the original trial of this case the verdict was set aside as to damages only; a second trial resulted in a disagreement; the case is now submitted to me for trial without a jury upon the previous testimony taken in the two trials with added testimony taken before the court.

It is a suit to recover damages for breach of a service contract wherein the plaintiff agreed to render a service by furnishing photograph records which would tie in with moving pictures so that the proper musical accompaniments would be rendered at the proper time.

Under the contract the phonograph records and discs which the plaintiff agreed to furnish for the various pictures that the defendant would need them for were to remain the property of the plaintiff; so that what the plaintiff was to furnish the defendant was a service.

The right to recover is based upon an anticipatory breach of contract, the defendant refusing to accept the service. The rule of damages under those circumstances is that the injured party must be compensated for that which he directly lost by reason of the other party’s act so far as such loss was or ought to have been in the contemplation of the parties. There is no recovery here lor anticipated profits. Losses directly incurred may be recovered, which would include expenses fairly incurred in preparation for performance.

The proof presented in the case is as to the three items of damage:

First—It is sought to recover the value of the phonograph records delivered. There is a factual dispute as to how many records were delivered; some witnesses say one hundred and fifty, some two hundred and fifty and some two hundred and forty, partly ten-inch records and partly twelve-inch records. There is not sufficient proof presented, it seems to me, to establish the fact that two hundred and forty phonograph records were delivered. Defendant concedes that one hundred and fifty records were delivered, and I am assuming that they are twelve-inch records. The contract provides that these records must be paid for if not returned. There is no evidence of their being returned; in fact, the defendant admits that he still has one hundred and fifty records. It is claimed on the defendant’s part that these records were tendered to the plaintiff. This is denied, however, and I am not satisfied that the burden of proof has been established as to a tender. I therefore find that the defendant is responsible for one hundred and fifty records at $1.50 a record, making the sum of $225.

Second—There is a claim for an item of seven discs. These are specially prepared at a cost of $40 each. They are the guides so that the person operating the system may know when to put on the respective records. They are of no value now, and I find the plaintiff is entitled to recover the full amount claimed of $280.

Third—The plaintiff also seeks to recover the amount of $150 paid to a salesman as commission for procuring the contract which was breached. This is not within the contemplation of the parties as an item of damage; it is an item of doing business and not incurred in the performance of the contract, but only incurred in its procurement. This item I will disallow.

I will find in favor of the plaintiff in the sum of $505.


text:
    THE STATE, EX REL. MICHAEL A. SAGARESE, RELATOR, v. ALBERT H. HOLLAND, JUDGE OF THE COURT OF COMMON PLEAS, AND E. BERTRAM MOTT, CLERK OF THE COUNTY OF MORRIS, RESPONDENTS.
    Submitted October 19, 1931
    Decided February 8, 1932.
    Before Justices Trenchard, Daly and Donges.
    Dor the relator, Minium •& Weinberger.

    Dor the respondents, Orville V. Meslar (Elmer King, of counsel).
   Per Curiam.

On affidavit filed in the above stated cause it was ordered that Albert H. Holland, judge of the Court of Common Pleas of the county of Morris, and E. Bertram Mott, clerk of the county of Morris, respondents, show cause why a peremptory or alternative writ of mandamus shall not issue commanding them and enjoining him, Albert H. Holland, judge of the Court of Common Pleas of the county of Morris, “to approve one of the bonds” which relator, Michael A. Sagarese, filed with him for approval, and to permit the said relator to qualify as justice of the peace, as of May 1st, 1931.

Our examination of the depositions results in the conclusion that sufficient appears to justify the award of an alternative writ, but not a peremptory writ. The legal right is not clear, and the facts which may well be pertinent are not definitely settled. In such case the court will ordinarily award an alternative writ to the end that an issue may be made, and the facts definitely ascertained, and thereby an opportunity given for review in error. Hugg v. Camden, 39 N. J. L. 620; Schnitzler v. New York Transportation Co., 76 Id. 171.

Accordingly an alternative writ will be awarded.


text:
    CITY OF PATERSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted October 19, 1931
    Decided February 8, 1932.
    Before Justices Trenchakd, Daly and Donges.
    Dor the relator, Salvatore D. Viviano and Charles F. Lynch.

    Dor the respondent, William A. Stevens, attorney-general, Walter S. Bacon, Jr., chief counsel state highway commission, and George T. Vickers, assistant attorney-general.
   Pee Cueiam.

On petition and affidavits filed in the above entitled cause, it was ordered that the state highway commission of the State of Uew Jersey, show cause why a peremptory or alternative writ of mandamus should not issue commanding the state highway commission of the State of Few Jersey to take such steps and proceedings and enter into such negotiations as may be appropriate for the ascertainment by agreement, if possible, of the amount of compensation to be awarded and paid to the city of Paterson for the taking and/or diminution in value, or deprivation of beneficial user and enjoyment in the lands and appurtenances of the city of Paterson, consisting of seventy-three twelve-one-hundredths city lots, twenty-five by one hundred feet each, as laid out upon a certain map entitled “Boulevard Overlook avenue to Broadway, Paterson, Few Jersey,” made by H. J. Harder, city engineer of the city of Paterson, and upon failure or inability to agree with said city of Paterson upon the amount of sitch award, to institute and diligently prosecute and consummate such proceedings for the condemnation of said lands and appurtenances and/or the interest of said city of Paterson therein and/or the fixing and awarding of compensation for damages thereto sustained as are provided and directed by the provisions of the Eminent Domain act of the legislature of the State of Few Jersey of 1900 and the amendments thereof and supplements thereto.

Our examination of the “stipulation of facts” results in the conclusion that sufficient appears to justify the award of an alternative writ, but not a peremptory writ. The legal right is not clear, and there seems to be some dispute as to what may well be pertinent matters of fact. In such case the court will ordinarily award an alternative writ to the end that an issue may be made and the facts ascertained, and thereby an opportunity given for review in error. Hugg v. Camden, 39 N. J. L. 620; Schnitzler v. New York Transportation Co. 76 Id. 171.

Accordingly an alternative writ will be awarded.


text:
    PETER GREEN AND THOMAS J. GREEN, PLAINTIFFS, v. SUN OIL COMPANY, A CORPORATION, AND FRANK MAFFIE, DEFENDANTS.
    Decided February 11, 1932.
    For the plaintiffs, Charles A. Rooney.

    For the defendants, Edwards, Smith & Dawson.

   Ackeeson, C. C. J.

This matter comes before me on a rule to show cause why the verdicts of $9,000 in favor of the plaintiff Peter Green, for personal injuries, medical expenses and loss of wages, and $875 in favor of the plaintiff Thomas Green for damage to his automobile, should not be set aside and a new trial granted upon the grounds that they are against the weight of the evidence and also excessive.

I have carefully read the testimony and find that the verdicts are not against the weight of the evidence according to the ordinary rules used in reviewing that question.

It was conceded at the argument that the verdict for $875 in favor of the plaintiff Thomas Green is not excessive.

Regarding the verdict for the plaintiff Peter Green the jury was warranted in finding that the out-of-pocket expenses, including loss of earnings, amounted to approximately $1,500. Subtracting this sum from the verdict of $9,000 would leave $7,500 for the personal injuries. These consisted of a compound fracture of the upper third of the tibia and fibula of the left leg, no shortening, but resulting in fifteen per cent, functional disability due to angulation. Also a comminuted fracture of the proximal phalanz of the left thumb, resulting in a permanent deformity thereof with weakness in grasping and some loss of flexion. There were also three sears on the front surface of the leg and a scar on the medial side of the anterior surface of the knee. This plaintiff was in the hospital six or seven weeks after which he wore a steel brace on his leg for a month and a half, and then he got about on crutches for a few months, and returned to work eight months after the accident.

Considering everything in the most favorable light for this plaintiff, I feel that all of his verdict over $5,500 is excessive. If he will file his consent to a reduction of the verdict to $5,500 before March 1st, 1932, it may stand for that amount, and the rule to show cause will be discharged. Otherwise it will be made absolute as to the plaintiff Peter Green, and a new trial granted as to his damages only. In any event the rule will be discharged as to the other plaintiff.


author: Pee Cubiam.

text:
    GUARANTY TRUST COMPANY OF NEW YORK, PLAINTIFF, v. JOHN J. STAMLER ET AL., DEFENDANTS.
    Decided February 9, 1932.
    . Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Por the rule, Arthur T. Vanderbilt.

      Contra, Shelton Pitney.

   Pee Cubiam.

This suit was brought to recover the amount due upon a promissory note made by the defendants Morris and Isadore Cohn to the plaintiff and endorsed by the defendant Stamler. The trial resulted in the direction of a verdict against Stamler for the amount due on the note, and he now challenges the legality of such direction.

The first ground urged for setting aside the verdict is that prior to the trial a motion was made to strike out the answer filed by the defendant Stamler, and that such motion was denied. The argument is that the denial of the motion to strike out the answer was a bar to the direction of a verdict by the trial court. This contention is without merit. The fact that the answer sets up a valid defense to a suit does not bar the direction of a verdict if there is no evidence submitted to sustain the answer, and the facts proved conclusively demonstrate the liability of the defendant.

The next contention is that the defendant became the endorser of the promissory note upon the representation made to him by the makers and payee that the amount of the note would be deposited to the credit of the makers, subject to withdrawal by them as they saw fit, whereas in fact the makers were required by the plaintiff, as payees, to pay interest on the amount of the note without any right on their part to use the money, but were compelled to transfer the amount thereof to the order of the National Dairy Products Company. The defendant Stamler contends that he was a mere surety on the note, and that he was relieved from liability as surety by the change in the contract as agreed upon between the parties while he was present. The uneontroverted proofs, however, show that a certificate of deposit was issued to the National Products Company by the plaintiff pursuant to the specific order of the makers of the note, and that this was not the result of any compulsion exercised over the makers of the note by the plaintiff; that in fact the amount of the money advanced by the plaintiff on the note was deposited to the account of the Cohns, the makers thereof; and that the certificate of deposit was thereafter issued. Clearly, the makers were not deprived of any control over this fund, but dealt with it as they saw fit, and the compliance of the plaintiff with the instruction of the makers does not relieve the surety from his obligation to pay the note in case of default by them.

These are the only grounds argued for setting aside the verdict, and our conclusion is that the rule to show cause should be discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES HARRIS ET AL., PLAINTIFFS IN ERROR.
    Argued October 6, 1931
    Decided February 11, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiffs in error, Alexander Simpson.

    Por the defendant in error, Louis A. Repetto, prosecutor of the pleas.
   Per Curiam.

This was an indictment for conspiracy naming five defendants. Pour of them were tried, there was an acquittal as to one of them, the other three were convicted and have sued out the present writ of error. The case is before us on a bill of exceptions and also under section 136 of the Criminal Procedure act, the assignments and specifications, twenty in number, being identical. Many of them are unavailing because not in proper form. The case can best be disposed of by following the argument as outlined in the brief for the plaintiffs in error without strict adherence to the numerical order of the specifications.

The alleged conspiracy was directed to defrauding a man named Young out of $5,000 by what may be described as a confidence game relating to an imaginary horse race. The usual feature of such proceedings was present in the form of a suggestion to Young that he ought to deposit $5,000 together with the money put in a pool by the defendants as a guarantee of his good faith. Young very nearly did deposit the $5,000 but the scheme was discovered and he was stopped in time. There were three counts in the indictments, but only the third was tried.

The first point made in the brief seems to be that there was no conspiracy because Young was not relieved of his money and there was only an attempt at a conspiracy. We cannot see anything in this point and deem it sufficient merely to state it.

The second point is that there must be an overt act and that no such overt act is indicated in the testimony. This point is absolutely baseless because there was an abundance of evidence to show the various acts of the defendants, or one or more of them, directed toward the consummation of the plot. Under this point it is argued that the court improperly refused to charge that the jury must find some overt act done in order to convict of conspiracy. Assuming the duty of the court so to charge and assuming also that the point was not covered by the charge, it is sufficient to say that the alleged refusal is not assigned for error.

Again it is asserted that the indictment does not allege an overt act. We think that it does where it says, after charging the conspiracy, that “by reason whereof, they, the said defendants, in pursuance of such object, did pretend to the said Young that they desired to bet on certain horse races,” &c., “and they, the said defendants, did solicit, urge and advise the said Young to join them in the making of a pool,” &c. It is unnecessary to go farther with the language of the indictment.

The next point made in the brief is that there must be a mutual agreement. This doubtless is true and the evidence tends to show such an agreement. Four of the assignments, numbers 7, 8, 9 and 10 directed to the point are futile because general in form and therefore do not require consideration. It is said that the court erred in charging on the failure of the defendants to take the stand, they having offered no testimony or other evidence in their defense. We have examined the charge in this regard and see no error therein.

The next point is that the court refused a request to charge that “the complainant witness had testified that he has been convicted of a crime. I charge you as a matter of law that evidence that a person has been convicted of a crime should be taken into consideration as to the likelihood of a person to tell the truth when testifying.” The argument seems to be that the witness in such case must be corroborated. We are unaware of any such rule although we think there was corroboration. However, the request called for more than the defendants were entitled to because under the statute all that the court was required to say was that the conviction had been shown for the purpose of affecting the credit of the witness.

The next point is that the court refused to arrest judgment because the' indictment did not charge an overt act. This ground was not urged on the motion in arrest of judgment, and in any event would be untenable in view of what we have said.

Finally, the refusal to charge requests 1 and 2. Humber 1 is a short definition of conspiracy and was covered by the court reading the statute. Humber 2 was in substance that if Young made an agreement to bet on horses, together with the defendants, he was a particeps criminis, and that .upon the uncorroborated testimony of Mr. Young there could not be a conviction. We do not understand this to be the law. We think that the jury were entitled to convict on the uncorroborated testimony of Mr. Young if they believed it, and that in any event there was reasonable corroboration.

The judgment will be affirmed.


author: Lyon, 0. C. J.

text:
    FANNY GELLER AND NATHAN GELLER, PLAINTIFFS, v. ALFONSO RICCUCI AND READING TRANSPORTATION COMPANY, DEFENDANTS.
    Decided February 11, 1932.
    For the plaintiffs, Berlin & Berlin.

    For the defendant Alfonso Eiccuci, Reginald V. Spell.

    For the defendant Heading Transportation Co., William A. Davenport.

   Lyon, 0. C. J.

The plaintiff Fanny Geller was injured in an automobile accident, and, with her husband, the other plaintiff, brought suit to recover damages. The jury brought in a verdict of $7,500 for Mrs. Geller and $2,500 for her husband.

A rule was granted to show cause why the verdict should not be set aside as excessive as to both plaintiffs.

It is claimed for the plaintiff, Mrs. Geller, who was pregnant at the time, that the injury resulted in a miscarriage, and that she sustained other injuries, particularly to her genital organs by reason of which she could never again conceive and bear children. It is urged if that be the case that the verdict of $7,500 for Mrs. Geller and $2,500 for her husband is not excessive.

If it were clear that the jury were justified in finding from the evidence that such was the case I should not be inclined to disturb the verdict. But if there was no testimony from which the jury could reasonably infer a permanent injury, then on the authority of several recent cases, the verdict should be held excessive.

In the case of Powers v. Straus, 157 Atl. Rep. 131, a verdict of $4,000 to wife for injuries resulting in severe bruise and miscarriage was held excessive by $2,000. In the case of Hawkins v. Atlantic Coast Trans. Co., 157 Atl. Rep. 564, a verdict of $2,500 for injury to a woman consisting of contusion of hip, bruise over eye, and sprain of right ankle, resulting in miscarriage, was held excessive to extent of $1,000.

The medical testimony in this case consisted of one hundred and forty-three pages. I have read it carefully and fail to find any testimony which would support the claim that Mrs. Geller was permanently injured so that she can never again conceive and bear children.

There was much testimony that the injury to Mrs. Geller resulted in an atresia of the cervix, by which is meant a contraction or decrease in the size of the mouth of the womb. The jury would doubtless be justified in finding that such a condition did occur, and that so long as it lasted it might interfere with childbirth. Whether or not that is incurable and permanent is quité another question.

Dr. Byck testified (page 40) as follows: "Q. As far as the atresia here or narrowing, did you find this atresia so narrow that it would have prevented her from conception? A. My answer must be speculation. Q. Yes? A. There is a possibility of the patient becoming pregnant.”

In further answering the question he said: “Atresia may be-of course, the fertility and the fact that she had become pregnant would lead one to believe that there was no atresia previously, but that, of course, is not absolute.”

While Dr. Haberman testified (pages 46, 47, 49) that Mrs. Geller had a very severe case of atresia, he also testified (page 50), “that the atresia was due to the inflammation following the miscarriage, which is very common.” He further testified (page 63) in answer to the question with regard to the probability of her becoming a mother as follows: “Well, I would say that that is speculative. I am not positive. I haven’t examined the patient since the operation * * * and I won’t be in a position now to say definitely whether or not she could or could not, but I could say that they sometimes are unable to conceive, but as I say, I won’t be in a position, not having examined her.”

On page 67 the doctor testified as follows: “Q. Doctor, while this atresia is present and this opening, to which you have referred, is closed, and which you call an atresia, is it possible for conception to take place * * * I will say, may conception take place with that atresia there? A. With an atresia of this kind that Mrs. Geller had, conception could never take place.”

A careful reading of this last question and answer does not imply a permanent condition but rather a temporary one.

All of the foregoing testimony was given by physicians called by the plaintiff. Dr. Brothers, a physician called by the defendant, testified (page 138) : “I see no reason why this woman should not become pregnant in the future.” “Q. And if the atresia of the cervix has been corrected? A. Yes. Q. Will that remove the only remaining obstacle to pregnancy? A. Yes, and many infantile cervices become pregnant without treatment.”

From the foregoing testimony I do not think the plaintiff has sustained the burden of proving that Mrs. Geller’s condition is permanent.

I think the jury were justified in finding, however, that there were some complications which followed the accident. There was a serious atresia, though not permanent, which “was the result of this miscarriage which was the result of the accident.” (Dr. Huberman, page 66.)

In the cases above referred to where the verdicts were held excessive beyond $2,000 and $1,500, respectively, there were little injuries beyond the miscarriage. I cannot think that this case is not more serious than those. I think it is and that a verdict in some greater amount than in those cases would have been justified.

It seems to me, however, that the verdict of $7,500 for Mrs. Geller is excessive by $4,000, and of $2,500 for Mr. Geller is excessive by $1,000. If the parties will agree to those reductions the verdict may stand, otherwise the rule will be made absolute and a new trial granted.


text:
    SEVLESRUO HOLDING CORPORATION ET AL., PLAINTIFFS, v. FIREMEN’S INSURANCE COMPANY ET AL., DEFENDANTS.
    Argued October 15, 1931
    Decided February 11, 1932.
    Before Gummere, Chief Justice, and Justice Case.
    For the plaintiff Sevlesruo Holding Corporation, Joseph T. Lieblich.

    For the defendants Firemen’s Insurance Company and Chicago Fire and Marine Insurance Company, 'William A. Wachenfeld.

    For the defendant American Equitable Assurance Company, Arthur T. Vanderbilt.

   Per Curiam.

This suit is to recover for fire loss-on three buildings, a six-family dwelling, a milk shed, and a cowbarn, and their contents. The principal defense was that the fire was set by or by procurement of the owner, and several other defenses, somewhat technical in character, are ancillary to that claim. The jury found for the plaintiffs except on the second count for the contents of the milk shed, as to which no assessment of damages was returned, and plaintiff holding corporation has a rule to show cause why a new trial as to damages only should not be granted on this count. Defendants insurers hold a rule to show cause why the verdict in favor of the holding company on other counts should not be set aside as against the weight of evidence, reserving their exceptions in other respects. Several mortgagees were interested as plaintiffs by virtue of mortgagee clauses made part of the policies, but most of them have been paid and the rule is not pressed as to any others. The question therefore is between the companies and the insured.

A careful examination of the case satisfies us beyond reasonable doubt that the verdict is against the weight of evidence. It is needless to go into details touching the two fires a month apart, both of which were clearly incendiary in character and in effect admitted so to have been. The evidence shows elaborate preparation and adequate motive. It is intimated for the plaintiffs that the incendiarism was that of some enemy, and mention was made in the testimony of alleged threatening letters; but not one such letter was produced and the testimony about them, if it can be called testimony, was so vague and indefinite as to be without evidential value. We conclude that defendants amply proved a case of fraudulent burning to get the insurance, and that the verdict to the contrary was clearly against the weight of evidence. There must be a new trial, therefore, on the counts on which damages were assessed; and as to the plaintiff’s rule there will be a new trial at large on that also.

There are motions relating to the recasting of the postea, &c., but as the foregoing disposition of the meritorious question has the practical effect of nullifying the whole postea as the basis for any judgment, the questions arising on these other motions become academic and require no decision. They will therefore be dismissed.


text:
    ROBERT H. McCARTER ET AL., PLAINTIFFS, v. CONNIE J. DORRIAN ET AL., DEFENDANTS.
    Argued October 6, 1931
    Decided February 11, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the plaintiffs, George W. C. McCarter.

    Por the defendants, Allen B. Bndicott, Jr.

   Per Curiam.

This is a suit for an alleged balance of counsel fees. The defenses were, first, that the charges were unreasonable; secondly, that they had been paid in full by delivery and acceptance of a note. The jury found for defendants.

It seems to have been conceded by defendants in the testimony that the note was to cover among other things, services in connection with an appeal to the Court of Errors and Appeals, with which it was believed the litigation would terminate. However, further services were required and were rendered after the termination of the appeal, particularly in relation to some contempt proceeding, and the defendant Dorrian stated in his testimony that “we owe him for the work he did in the attachment suit.”

It seems clear that the jury overlooked this phase of the case and that the verdict of no cause of action generally was against the weight of evidence. Plaintiffs’ counsel concedes “for purposes of argument that the question of what was the agreement with respect to the note and consequently, whether there was anything due for the plaintiffs’ services in and about the appeal from Chancery, was for the jury. Our contention, however, is that in any event the verdict could not be for the defendants, but something should be found to be due the plaintiffs by reason of the other services performed after the giving of the note other than the appeal.”

We agree that this is so, but do not agree with the claim of counsel that there should be a retrial of the whole case. The claim for services after the appeal which have never been paid for is clearly separable from the claim for services down to and including the appeal and was so treated in the charge. The jury seems to have either ignored it or mistaken^ treated it as part of the main case. In that respect the verdict should not be allowed to stand, but we are unable to agree that for this the whole finding should be set aside, particularly in face of the concession by counsel.

A new trial is awarded on the question whether plaintiffs have a valid claim for services and expenses after the appeal, .and if so, to what amount.


author: Ackebson, 0. C. J.

text:
    TOMASZ SLUBERSKI, INDIVIDUALLY; JOSEPH SLUBERSKI, AN INFANT BY TOMASZ SLUBERSKI, HIS NEXT FRIEND, AND HELENA SLUBERSKI, PLAINTIFFS, v. DAVE WAGMAN, DEFENDANT.
    Decided February 11, 1932.

      For the plaintiffs, William George.

    For the defendant, Goult, Satz & Tomlinson.

   Ackebson, 0. C. J.

The plaintiffs having been injured ini an automobile accident recovered verdicts against the defendant in the following amounts: Tomasz Sluberski, $4,000;. Joseph Sluberski, $3,900, and Helena Sluberski, $200. The-matter now comes before me on a rule to show cause why the verdicts in favor of Tomasz and Joseph Sluberski should not be set aside and a new trial granted on the ground that, they are excessive. Ho rule was taken as to the plaintiff' Helena Sluberski.

So far as the verdict in favor of Tomasz Sluberski is concerned, it involved his personal injuries, doctor’s bills for himself, wife and son, hiring a man to take his place on the farm, and damage to his automobile. The out-of-pocket expenses, including damage to the automobile, amounted to-approximately $1,400. This would leave $2,600 to compensate for personal injuries, including pain, suffering and incapacity. There was evidence from which the jury could have-found that this plaintiff suffered strain of the sacro-iliacjoint resulting in a permanently tender condition of the back and impairment of physical powers so that plaintiff cannot, do heavy work as he did before the accident, which condition is likely to be permanent. Also inflammation and irritation-of the left knee, laceration of the left hand, and a contusion! of the fourth knuckle and contusion and cut on the middle-finger of this hand. After the accident a condition of the-heart known as angina pectoris developed, which the attending physician attributed to the accident, but which plaintiff’s expert did not. The former said this condition is serious, the-latter said it is -not. The condition is painful when the-spasms come on.

Iii any event it is apparent that the verdict of $4,000 for this plaintiff is not excessive, and it will not be disturbed.

Turning now to the verdict of $3,900 in favor of Joseph Sluberski, we find that he was fifteen years old at the time of the accident. The jury were justified in finding that he sustained a laceration on the forehead which required seven stitches and resulted in an irregular keloid scar which is bleaching out to .some extent; and a laceration on the side of the head, which required one stitch and resulted in a small keloid scar, but which is hidden by the hair of the head. Also a laceration of the right ring finger, which required two stitches, resulting in a keloid scar one and a half inches long, which sometimes bleeds in cold weather. All of these scars are permanent but not especially disfiguring. The boy was in the hospital six days, and there was evidence of continuing headaches, dizziness and nervousness, but the physicians could not say how long such complaints would last.

It seems to me that the evidence respecting this boy’s injuries will not justify a verdict of over $2,000. If he will file his acceptance of a reduction of the verdict to $2,000 before March 1st, 1932, it may stand for that amount and the rule to show cause will be discharged, otherwise it will be made absolute and a new trial ordered as to this plaintiff’s damages only. The rule will be discharged as to the other plaintiff, Tomasz Sluberski.


text:
    RICHARD SCHOENFELDER AND BERTHA SCHOENFELDER, PLAINTIFFS, v. MARY T. POPE, DEFENDANT.
    Submitted October 16, 1931
    Decided February 11, 1932.

      Before Gummeee, Chief Justice, and Justices Parker and Case.
    For the plaintiffs, David Green and Nelson K. Mintz.

    Por the defendant, James F. Patten.

   Per Curiam.

This case arises out of an automobile accident which occurred under rather unusual circumstances. The complaint was in three counts, the first count claiming for personal injuries alleged to have been sustained by the plaintiff Richard Schoenfelder, the second for personal injuries to his wife, Bertha, and the third for damages to the plaintiff Richard because of loss of services of his wife. The jury found a verdict against the defendant on each count; on the first for $3,000, on the second for $2,000 and on the third for $1,000. Seven reasons are advanced for a new trial but they are all covered by two propositions. The first is that the verdicts were against the weight of evidence, and the second that the damages were excessive. A part of the argument on this rule is directed at the refusal of the court to jnonsuit, but this was not stated in any of the reasons filed and, moreover, is included in a consideration of the question whether the verdict as to liability was against the weight of evidence.

Pour motor vehicles were involved in the accident. The two plaintiffs on the early evening of December 12th, 1929, were driving northward between New Brunswick and Metuchen on the Lincoln highway. The plaintiff Richard Schoenfelder was driving. It was practically dark and was raining and sleeting and the road was slippery. All the evidence is to the effect that driving was difficult because the rain immediately froze upon the windshield, and more than one witness testified that, in order to see, it was necessary either to raise the windshield or to lean out of the car to one side. As the plaintiffs were going northward on the proper side of the concrete road, which was from thirty-two to thirty-five feet wide exclusive of dirt shoulders, a large truck belonging to parties not interested in this action, was coming in the opposite direction, and at the same juncture a man named Henderson, who was a witness in the cause, was driving his ear easterly on a cross road and came into the Lincoln highway from the westward about the time that the truck was passing from north to south. The truck swerved to the left to avoid Henderson and in so doing brushed against the plaintiffs’ ear and damaged it, but neither car was disabled. Henderson, according to his testimony, saw the collision and thought the driver of the truck was trying to run away so he speeded up and headed off the truck bringing it to a stop a short distance south of the intersecting road. All of the witnesses agreed that the truck was partly off the concrete when it came to a standstill and that the front was somewhat more off the road than the rear. Another witness named Taylor, who operated a garage close by, testified that the truck was so near the side of the road and to a tree standing there that when Taylor undertook to walk in front of the truck to its right from behind, it was necessary to go around the tree.

To resume the story of the accident: Henderson being in the act of heading off the truck, the plaintiffs turned completely around until they were headed in the opposite direction, viz., from north to south; they followed up the truck and came to a standstill immediately in its rear. Mrs. Schoenfelder, who was on the right, got out and went to the right-hand door of the driver’s cab and attempted to attract the attention of the driver but without success. Her husband followed her. Henderson was also on the spot, and getting no answer on the right, the three were collected together on the concrete at the left of the front of the truck, and in rather animated disputation with the driver, when Mrs. Pope, the defendant, driving a Ford came from the northward through the rain and sleet and ran into both the plaintiffs and Henderson as they were standing in the road, inflicting injuries on all of them. Henderson’s claim had been settled before the trial and he was a witness for the plaintiffs. Some allusion is made in the brief to the fact that he testifield that he had been paid by an insurance company, but in respect to this it is sufficient to say that this testimony was drawn out by the defendant’s own counsel on cross-examination and, consequently, the suggestion that it was irrelevant comes with a very bad grace from the holder of the rule.

With respect to the finding of negligence on the part of Mrs. Pope, we see no reason whatever for interfering with the verdict of the jury. The evidence touching the speed of her car was contradictory but the jury were fully justified in finding that she was driving under these unfavorable circumstances at least fifteen miles an hour with obstructed vision and a slippery road, having seen the two red tail lights ahead, and that she was unaware of the presence of the plaintiffs in front of her car until she actually struck them although her head lights were burning. She, herself, testified that she was aware that the two tail lights were stationary; and this situation made it incumbent upon her to proceed with such caution as the situation required. It is sufficient to say that if she had used the same care to see what was ahead of her that was used by the other witnesses, she would have seen these parties standing in the road in ample time either to avoid them or stop before hitting them. The evidence is in some contradicton as to the distance that the plaintiffs were standing from the truck, but as they were engaged in a hot dispute with the truck driver, demanding his license, &c., and as they necessarily knew that traffic was going on, they would naturally have stood quite close to the truck, and in fact their testimony is that they were close against it. Neither plaintiff was proficient in the English language, but as we read their evidence it is specific that they were close to the truck and that in fact as they stood there, traffic was passing them in both directions without interference.

With respect to the contributory negligence of the plaintiffs in standing where they did, the case presents somewhat greater difficulty, but it was manifestly a question for the jury and we are unwilling to say that they took the wrong view of the matter. Contributory negligence is a defense and the burden of proving it is on the defendant. The evidence fairly shows conditions which would account for the plaintiffs being on the left side of the truck instead of the right. Mrs. Sehoenfelder had attempted to get at the truck driver from the right-hand side, but the testimony is that door was nailed up on that side. While they were required in case they stood on the left of the truck to take such precautions for their .safety as the situation required by way of maintaining a look out for cars coming southward, it was for the jury to say whether they failed of their duty in that regard, particularly in view of the evidence that other cars in the same ■direction had passed them in safety.

We conclude, therefore that the verdict is not against the weight of evidence.

With respect to the quantum, of damages, we do not feel that any one of the verdicts should be set aside as excessive. As to the husband, he was rendered unconscious, was in the hospital for ten days or so, and afterwards at home in bed for several weeks. The attending physician testified in considerable detail to symptoms which indicate rather extensive internal injury which took some time to clear up, as well as a fracture of the right leg close to the knee. Among the symptoms were peritonitis and a pleurisy, both of which ultimately cleared up, and water on the knee. The injuries were undoubtedly painful and sufficiently serious as to justify ■a substantial verdict.

As to Mrs. Sehoenfelder, the testimony indicated a total disability for three weeks and that she suffered from concus•sion of the brain and nervous shock, the effect of which were still discoverable at the time of the trial. This, we think, justifies the verdict of $2,000 in her favor, and the verdict of $1,000 of her husband per quod, which includes a medical charge of $150.

Our conclusion, therefore, is that the rule to show cause should be discharged.


author: Smith, S. C. C.

text:
    PHILIP FRIEDMAN, PLAINTIFF, v. ABE KAUFMAN, I. LEVINE AND ALEX RUBENSTEIN, DEFENDANTS.
    Decided February 16, 1932.
    For the plaintiff, Laurence Semel.

    For the defendants, Abram I. Buestein.

   Smith, S. C. C.

From my examination of the proof submitted on this motion it is quite apparent that the answer, in so far as it relates to the indebtedness of $1,500 on-the notes, is sham. The endorsement on the check “for balance due on acreage, complying with contract to Ralph A. Norton, Arthur McLean,” is not any acknowledgement that it is in full payment of the purchase price under the contract. It is quite evident that at the time of the endorsement the $1,500' was not due under the contract, and therefore it would not. cover the two notes.

The application to strike out the answer as sham will be granted, but the proof is not sufficient to -warrant the entry of judgment for more than the face of the notes and without costs.

There is no proof of the Florida law, and we must therefore construe them under our law, which makes them usurious and bars recovery for more than the face value of the indebtedness and does not permit the recovery of the interest or costs.

If the plaintiff decides to take judgment for this on the order striking out, he may do so; otherwise he may take the order striking out the answer and take an assessment of damages in open court. It will also be necessary for the jury to pass on the question of what is a reasonable counsel fee.


text:
    SAMUEL KATZ AND ROSE KATZ, PLAINTIFFS, v. IRA J. KATCHEN ET AL., DEFENDANTS.
    Decided February 16, 1932.
    For the defendants, Green £ Green (by Harry Green).

    For the plaintiffs, William Greenfield.

   Smith, S. C. C.

This is the second motion made in this case to strike out the complaint. The first motion was granted, and one of the grounds upon which it was granted was that separate counts should have been made as to each plaintiff, unless a proper allegation was made as to joint ownership of the securities purchased by the plaintiffs or the money advanced by them.

The amended complaint has not remedied this objection. Paragraph 3 of the first count refers to the plaintiffs’ paying over the sum of $25,000 to the defendants for purchase of stock, &e. Paragraph 9 states that the plaintiffs did pay unto the defendants large sums of money, to wit, $25,000 for the purpose of investing. The second count repeats the first count as to the first nine paragraphs including what has been before stated, and further alleges an additional investment of $10,000 by the plaintiffs.

The affidavit of the plaintiff Samuel Katz, which was used on the first motion, was introduced on this motion. In paragraph 5 it refers to his and his wife’s money, and further on refers to the fact that he gave the money, while further on it states that he would not have invested the money. Paragraph 9 states that the money was obtained from him and from his wife; paragraph 16 refers to his money; paragraph 12 says that the $10,000 referred to in the second count was his wife’s investment.

The guaranty referred to in the second count, a copy of which is attached to the complaint, does not state anyone to whom it is addressed, but I understand that it is claimed by the bill of particulars that it was given to the wife. The second count is by both plaintiffs.

There is an entire failure to allege any joint ownership in the moneys advanced; that is, that they were the moneys of the two. This is necessary, or else separate counts must be filed alleging what moneys advanced belonged to which plaintiff. Clearly the second count refers to money which was advanced by Mrs. Katz, and both plaintiffs are parties to this count.

The complaint must be stricken out on the ground of a misjoinder, joining two plaintiffs in each count when there are separate causes of action. The complaint is still inartistically drawn; it does not comply with- Supreme Court rule, paragraph 31 B, referring to the pleadings, which reads: “The statement must be divided into paragraphs numbered consecutively, each containing, as nearly as may be, a separate allegation.” It is important in a fraud case, to separate the allegations so that the facts under the different principles of fraud may be alleged separately.

The motion to strike out the complaint will be granted with costs, including a counsel fee.


text:
    JAMES THOMAS, DEFENDANT IN CERTIORARI, v. LIONDALE BLEACH, DYE AND PRINT WORKS, PROSECUTOR IN CERTIORARI.
    Argued October 6, 1931
    Decided February 15, 1932.
    Before Justices Teenciiaed, Daly and Donges.
    For the prosecutor in certiorari, Kellogg & Chance.

    For the defendant in certiorari, John C. Grimshaw (Frank G. Turner, of counsel).
   Pee Cubiam.

This writ brings up for review the action of the Common Pleas Court of Morris county in affirming the bureau which allowed a further award because of increased incapacity in a workman’s compensation case.

James Thomas, (hereinafter called the employe), while in the employ of the prosecutor of this writ, Liondale Bleach, Dye and Print Works (hereinafter called the employer), suffered an accident on May 29th, 1925. On September 20th, 1926, a compensation agreement was entered into between such employer and employe, and upon their request, was approved by the workmen’s compensation bureau, and an award was entered on the same. This provided for twenty-five per cent, total and permanent disability and for the payment of $14.41 for one hundred and fifty and three-sevenths weeks.

On April 3d, 1929, a petition for increased compensation was filed with the workmen’s compensation bureau. Total and permanent disability to the extent of sixty-six and two-thirds per cent, was found and an award made on that basis. This is the award under review.

Prosecutor contended below and contends here that the petitioner had no right to file the second petition under the statute.

Section 5 of the 1918 act, as amended by Pamph. L. 1921, p. 781, and clause (h) of the 1919 act (p. 214), are the sections in question. They are alike so far as concerns this point, and clause (h) is as follows:

“In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen’s compensation bureau, at the state house, in Trenton, within one year after the date on which the accident occurred, or in ease an agreement of compensation has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation!’

The employe claims to come within the last provision.

The employer claims that the employe is without the statute and relies on Herbert v. Newark Hardware and Plumbing Supply Co., 151 Atl. Rep. 502. The question seems to be, what interpretation is to be put upon the agreement of September 20th, 1926, entered as an award?

In the Herbert case the denial of the right to file the petition for increased compensation was based upon the fact that the original award was contested and not the result of agreement. The Common Pleas judge in the present case so distinguished it, and we think the distinction is sound. In that case the original award was not only contested in the compensation bureau but was carried to this court by certiorari.

The employer contends that the original award in this case is on the .same footing as a judgment in a litigated case; but we see no merit in that argument. The fact that the agreement was approved and entered as an award does not take away its character as a voluntary agreement.

In Lusczy v. Seaboard By-Products Co., 101 N. J. L. 170, the Court of Errors and Appeals said:

“The scheme of the legislature is clear. All claims for compensation are to bo made by the filing of a formal petition within one year after the accident unless the employer admits his liability to pay compensation and agrees to pay it. In ease thereafter he fails and refuses to pay the compensation as agreed, the petition must be filed within one year from the date of such refusal and failure to pay. In case the agreement is for only part of the compensation which ought to be paid, and the employer lives up to his agreement and pays the compensation therein provided, a claim for any additional compensation must be filed within one year of the last payment made.”

The instant case comes within the language of the last sentence. The employer admitted its liability and agreed to make payment. It developed that the agreement did not give the employe all that he was entitled to. Within one year he filed the present petition for further compensation, it being admitted in the brief of the employer that the last payment under the 1926 agreement was made about eight months before the filing of the instant petition.

We think that the employe has made out a case which entitled him to have the bureau pass upon his claim for additional compensation.

The only other question is as to the sufficiency of the evidence to support the award. We think that the findings of fact made by the bureau and by the Common Pleas on appeal were justified by the evidence.

The judgment under review will be affirmed, with costs.