text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HYMAN STRAITMAN, PETITIONER, v. J. E. STEVENSON & CO., RESPONDENT.
    Decided November 28, 1941.
    For the petitioner, Joseph A. Fuerstman.

    For the respondent, James J. Slceffington.

   The petitioner alleges that on July 14th, 1941, while employed by the respondent he was standing on a heap of baskets about four feet from the ground, when same gave way and he fell to the sidewalk striking his back.

It was agreed, however, between the parties that the question of liability shonld be tried before the question of disability, inasmuch as there was a grave question as to whether or not the petitioner was an employe within the meaning of the Workmen’s Compensation Act.

The petitioner testified that he had been a jobbing peddler and worked in and about the market for the past thirty some odd years, and that about March 14 or 15th, 1941, ho was talking with Mr. Ray Hastings, a member of the firm of J.. E. Stevenson & Co., and that he made arrangements with Mr. Hastings whereby he (Mr. Straitman) would go to New York with his truck and purchase merchandise in New York and return, displaying it and selling it at the premises of J. E. Stevenson & Co., and that he and J. E. Stevenson & Co. would split the profits.

He stated Mr. Hastings told him he would think about it a couple of weeks and let him know, and that a couple of weeks later he began to work in the manner described, i. e., he would be allowed $2 which was to cover the tunnel fare and lunch money, and in return the petitioner was to supply his own truck and maintain it, and then he was to purchase, he testified, such merchandise as was deemed advisable on the credit of J. E. Stevenson & Co., cart it back to the premises of J. E. Stevenson & Co., and then attempt to sell same.

He testified that the salesmen of J. E. Stevenson & Co. sold some of the produce which he brought back to their establishment, and that he would give the bookkeeper the charge slip and every Saturday he would receive a settlement for one-half of the profit from the transaction. He also admitted he was paid five cents per package for cartage charge on any package or bundle which he took from New York for the J. E. Stevenson & Co., which was outside of this profit sharing arrangement.

The. petitioner in support of his contention entered into evidence a series of slips which -were in the handwriting of the bookkeeper, Mr. Summers, of the J. E. Stevenson & Co.

He testified that he frequently had to do little odd jobs such as' going for ice for “icing-down” the merchandise, and occasionally going to the warehouse, but admitted quite frankly that he received no compensation from J. E. Stevenson & Co. for any activities that he performed, and received nothing outside of the profit sharing arrangement, plus the usual five cents cartage charge made on each' package that was carted to Newark for J. E. Stevenson & Co. outside of the merchandise which was secured on a share and share alike arrangement.

The petitioner testified that on July 14th, 1941, while attempting to get into his truck to take some produce off same he stepped up on some baskets of beans, which gave way and he fell to the ground injuring his hack.

He further testified that it was his practice before making purchases in New York to call up Mr. Hastings, or someone connected with J. E. Stevenson & Co. to ascertain what merchandise they had on the premises, so as not to purchase merchandise which would duplicate that which they already had.

He admitted that he did not have any Social Security number and that the only compensation he received was one-half the profit of the sale of the merchandise after the costs of same had been deducted therefrom.

The petitioner also testified that after the accident he was under the care of Dr. Solk for three or four weeks and resumed working about five weeks later.

His present complaints are that he still feels weak; his back hurts him; he cannot sit for any length of time without difficulty; if he walks a great deal he has a pain in his back. He stated that when he gets up from a sitting position he feels dizzy; that he is nervous and feels pain.

He testified that when he did not go back under this old arrangement with Mr. Hastings he subsequently made a similar one with another produce merchant and is now engaged at ihat place.

Mr. Hastings took the stand and testified that Mr. Strait-man approached him about March 15th, 1941, and suggested that they enter an arrangement whereby the company would allow him $2 to cover the cost of tunnel and give him'“a bit of breakfast,” and that he in turn would supply the truck and gasoline, and that he would purchase merchandise in New York at the New York Commission Market, cart it to their premises and there assist in the disposition and sale of same, and he to receive a 50% share of the profits made after the cost of same had been deducted; that it was also their practice to permit Mr. Straitman to cart produce from New York to their promises and allow him five cents per package as carrier. This was for produce which they themselves would order independent and apart from the produce which Mr. Straitman would order and upon which he received a share of the profits.

Mr. Hastings stated that the petitioner never was an employee of J. E. Stevenson & Co.; that he had no Social Security number, and that he had only this share of the profit arrangement in connection with the produce that he brought from New York, and in addition was paid the usual cartage charge for produce which J. E. Stevenson & Go. would order themselves. He stated it was quite possible that Mr. Strait-man did go to the warehouse occasionally for produce, or to secure ice, but that if he did this it was voluntary, and because he sought their good will and was in nowise compulsory, having nothing to do with their agreement which was simply “a share the profit arrangement.”

Mr. Summers, the bookkeeper, was called to the stand and he explained in detail the slips that had been entered into evidence by the petitioner and checked them against his book which showed clearly that the petitioner received a 50% share of the profits on the produce which he brought over from New York for the purpose of selling, and also showed that if he brought other packages independent of this arrangement he was allowed the usual cartage charge of five cents per package. He also testified that at the end of each week the accounts were reckoned and the petitioner given his share of the profits. This occurred on a Saturday night. He testified the regular employees of J. E. Stevenson & Co. were paid on Friday nights.

He showed' from the records that the petitioner had no Social Security number and was not treated in any manner as the regular employees of J. E. Stevenson & Co.

After having examined the records in this case, and considering the testimony adduced before me on the question of liability, I am satisfied that the petitioner entered into an arrangement in the nature of a joint venture and received 50% of the profits on a share and share alike arrangement. Further, that the evidence clearly shows that the relationship of master and servant did not exist as between J. E. Stevenson & Co. and the petitioner at the time this accident occurred.

It is, accordingly, * * * ordered that the petition be and the same is hereby dismissed.

John C. Wegner, Deputy Commissioner.


source: Caselaw Access Project

author: John C. Wegner, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANN O’NEILL, PETITIONER, v. BABCOCK & WILCOX, RESPONDENT.
    Decided November 25, 1941.
    Dor the petitioner, Avidan & Avidan (by Alexander Avidan).
    Dor the respondent, James J. Sheffington.

   *******

By stipulation between the parties, the above entitled matter was consolidated for hearing with the claim petition filed in the name of Ann O’Neill as petitioner v. Dairmount Construction Co. as respondent, being Claim Petition No. 48154., together with the claim petition of Ann O’Neill, Administratrix of Dennis J. O’Neill, Deceased, as petitioner v. Babcock & Wilcox as respondent, being Claim Petition No. 47759.

The within claim was instituted by the petition of Ann O’Neill for herself as widow and for her infant son, James Joseph O’Neill, seeking compensation as dependents of Dennis J. O’Neill, the decedent, who was alleged to have died on January 27th, 1940, as a result of an accident occurring on July 12th, 1939, arising out of and in the course of his employment with the respondent.

The testimony on behalf of the petitioner showed that the said Dennis J. O’Neill, the decedent, was employed on July 12th, 1939, by the respondent as an iron worker; that on that day while walking along an iron beam he slipped and fell, striking Iris left hip; that the said injury was serious and painful; that after some delay he continued working for the balance of the day and for some time thereafter; that after applying some home remedies, rubbing the affected area, namely, the left hip, he was referred by his employer, to whom the accident was reported, to a Dr. Watman about a week later for treatment; that Dr. Watman treated the petitioner from July 20th, 1939, to September 6th, 1939; that the said doctor after obtaining a history of the accident, together with the complaints of constant pain by the said decedent, at first made a diagnosis of a strain of the muscles and a contusion of the left thigh; that the said injury in the doctor’s opinion was moderately deep; that subsequently after the taking of an X-ray in August, 1939, the doctor first made a diagnosis of a sarcoma or cancer of the left hip; that from September 8th, 1939, to the date of death on January 27th, 1940, decedent was under the care of a Dr. Abrams and was confined to the Beth Israel Hospital, excepting for an interval of several weeks when the decedent was treated at his home. The testimony indicates that commencing with the date of the accident, July 12th, 1939, the petitioner appeared to be in rather constant and persistent pain and was given some medication for the relief of that pain.

A series of X-rays were taken at the Beth Israel Hospital during the decedent’s confinement there. These X-ray plates were offered in evidence and interpreted by Dr. Nathan Furst, a roentgenologist, associated with the Beth Israel Hospital. The first X-ray films of the left hip taken as of September 8th, 1939, showed a considerable alteration in the cancellous tissue surrounding the acetabular cavity. Without going into detail as to the interpretation of these films, it is sufficient to state that the subsequent films show a progression in the 'destructive infiltration o’f the cancellous tissue neighboring the left acetabulum, ultimately resulting in a more or less complete destruction of the bone structure in that area. The findings definitely indicated a malignant tumor.

The testimony further showed that an autopsy was performed by Dr. C. Berardinelli on January 27th, 1940. Dr. Berardinelli is the first assistant medical examiner for the County of Essex. The autopsy indicated a malignant tumor of the osteogenic sarcoma type of the left femur and upper extremity. Death in this case resulted from the condition of osteogenic sarcoma. There appears no dispute in this case as to the nature of the condition ultimately producing death, namely, osteogenic sarcoma.

There does not appear in this case any serious dispute as to the accident and the chain of symptoms following the accident. The accident was described by the decedent during his lifetime from testimony taken at his bedside, the transcript of which was offered in evidence in this case.

A co-worker, a Mr. Murtha, testified to having witnessed the accident, to having seen the injury to the left hip, to having known the petitioner prior to this accident as being a good and able worker.

The widow, Ann O’Yeill, testified to the changed conditions of the decedent following the alleged accident, to the agony the decedent was found to be in on the day of July 12th, .1939, when he returned home.

Dr. Watman for the respondent testified to the history of the accident as reported by the decedent to him and further that the ease was sent to him by the respondent as a compensation claim. The doctor further testified to the complaints of pain.

Dr. Abrams testified to the history of the accident as given to him by the decedent and as referred to in the records of the Beth Israel Hospital and also to the constant and persistent complaints of pain and the swelling of the injured area.

The real serious issue in dispute in this case is that of causal relation between the osteogenic sarcoma and the trauma of July 12th, 1939. On this there appears in this case a contrariety of opinion.

The petitioner produced Dr. Berardinelli, the assistant medical examiner, who performed the autopsy, Dr. Asher Yaguda, a pathologist, and Dr. Joseph Koppel, who has had considerable experience with compensation cases — all of whom testified that the accident of July 12th, 1939, was the contributing cause of the death of the decedent; that the said accident aggravated the pre-existing condition of osteogenic sarcoma and thus accelerated the death of the decedent. Important considerations appear to be the chain of symptoms and conditions following the accident of July 12th, 1939, first, in contrast to the pre-existing condition of the decedent, which indicated that following an accident in 1936, the decedent Had recovered fairly well and was able to satisfactorily perform his work without any apparent complaint, and, secondly, in the course of decedent’s condition following the accident of July 12th, 1939, namely, that commencing with the accident of July 12th, 1939, the decedent did have rather persistent and constant complaints of pain in the area affected by the trauma to the left hip; that following July 12th, 1939, the decedent’s condition grew progressively worse, ultimately resulting in the almost complete bone destruction of that area.

The medical testimony on behalf of the petitioner was of the opinion that the trauma in this case did aggravate a preexisting sarcoma, ultimately producing the death.

The respondent’s doctors, Dr. ’Watman, the attending doctor, and Dr. Ewing were of the opposite opinion. Dr. Singer called by the respondent refused to express an opinion on this question. Dr. Baker testified as to the interpretation of the X-ray films offered by the petitioner.

The medical testimony on behalf of the respondent admitted that trauma may initiate or aggravate a pre-existing condition of osteogenic sarcoma. They also appeared to be of the opinion that in this ease we were dealing with a pre-existing condition of osteogenic sarcoma. Their opinion was to the effect that in this particular case it was not felt that the trauma did aggravate the pre-existing condition of osteogenic sarcoma. It was conceded by Dr. Ewing that the best available evidence in the ease would, of course, be X-ray films taken immediately before the trauma of July 12th, 1939, and X-ray films taken immediately thereafter to show the contrast in the conditions. However, in the absence of such evidence opinions must be based upon such facts and proofs as are available.

The chain of symptoms, including the pain and swelling and the progressive nature of the destruction of the bone tissue, all of which commenced with the date of the accident of July 12th, 1939, must be considered as persuasive testimony.

After carefully considering all of the testimony I am of the opinion that the accident of July 12th, 1939, did aggravate the pre-existing condition of osteogenic sarcoma.

The law applicable to this case is not unusual. An accident which causes or aggravates a pre-existing condition, including the condition of cancer, is compensable. Roney v. Griffith Piano Co., 4 N. J. Mis. R. 31; 131 Atl. Rep. 686; affirmed (Supreme Court, 1926), 4 N. J. Mis. R. 837; 134 Atl. Rep. 922; Voorhees v. Smith Schoonmaker (Supreme Court), 86 N. J. L. 500; 92 Atl. Rep. 280.

“It is not necessary that the accident on this date should be shown to be the sole contributing cause to the condition of the petitioner. If a pre-existing condition was aggravated thereby, the injury is compensable. Furferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; 189 Atl. Rep. 126.” Davis v. Lotz (Supreme Court), 126 N. J. L. 615; 20 Atl. Rep. (2d) 602.

In considering proofs in connection with such issues we can only deal .with probabilities rather than certainties. Jackson v. Delaware, Lackawanna and Western Railroad, 114 N. J. L. 487; 170 Atl. Rep. 22.

After duly considering all of the testimony herein submitted, I do find and determine as follows:

1. That the decedent, Dennis J. (Weill, did sustain an accident on July 12th, 1939, arising out of and in the course of his employment with the respondent.

2. That the said decedent, Dennis J. (Weill, did die on January 27th, 1940, as the result of an accident arising out of and in the course of his employment with the respondent.

$ s£ gc $ $ $

4. That the petitioner, Ann (Weill, as widow and James Joseph (Weill as the son of the said petitioner and the said decedent, are the sole surviving dependents of the said Dennis J. (Weill; that the said son, James Joseph (Weill, was born on September 2d, 1937.

6. That in view of the existing situation, namely, that 35%, being the amount allowed by law for one dependent, of the decedent’s wages, namely, $80 per week, exceeds the statutory maximum of $20 per week, the petitioner, for herself as widow, and her son, James Joseph O’Neill, as dependents of the decedent, Dennis J. O’Neill, shall receive compensation for the period extending from January 27th, 1940, until the said James Joseph O’Neill, shall attain the age of 16 years, or until September 2d, 1953, or for the period of 709 4/7 weeks, at the rate of $20 per week, subject, however, to the termination of 'this liability as allowed by the Workmen’s Compensation Act or by law. ****** *

It is further ordered that judgment shall be entered in favor of the petitioner-and against the respondent in accordance with the foregoing.

John C. Wegner, Deputy Commissioner.


author: Barbour, C. C. J.

text:
    HARRY B. SEYMOUR, PLAINTIFF, v. ESSEX COUNTY PRINTING PRESSMEN AND ASSISTANTS’ UNION NO. THIRTY-ONE, A VOLUNTARY UNINCORPORATED ASSOCIATION, AND HARRY WENDRICH, DEFENDANTS.
    Decided November 12, 1941.
    For the plaintiff, Albert S. Gross.

    For the defendants, Meyer M. Semel.

   Barbour, C. C. J.

(Orally.) * * * This action is to recover damages by reason of the inability of the plaintiff to continue in employment, where membership in a union is a prerequisite to employment, and alleges that the defendant union and the individual defendant did unlawfully, maliciously, wantonly, and without legal or justifiable cause or excuse, willfully coerce, threaten, instigate, persuade, procure, entice and induce the said Consolidated Films Industry, Incorporated, and so forth, to refuse to continue the plaintiff in its employment, to discharge him.

Paragraph 8 of the complaint reads: “By reason thereof, and by reason of the acts,” as amended, so as to allege a continuing wrong, “plaintiff has been deprived of his right to engage in such employment as he may choose, free from hindrance or obstruction.”

And paragraph 9: “Ba reason of the refusal aforesaid, and by reason of the acts of the defendants, has been and still is,” &c., “deprived of employment as a master pressman in all union plants in and about the locality hereinabove described, and has been prevented from earning a livelihood by employment in this trade.”

The whole action is based upon an allegation of procuring the dismissal or discharge of the plaintiff by the Consolidated Film Industries, without legal or justifiable cause.

The plaintiff is not one who is unfamiliar with unions. He had been a member of unions from his early days, at least 1921, because his membership card for that year is marked as Exhibit P-8. He was chairman of the striking employees at the plant of the Consolidated Film Industries, Incorporated, and he approved of the closed shop agreement that was finally obtained, and under which he returned to work, or perhaps it might better be said that he returned to work before the agreement was consummated. Prior to the time of his terminating his employment with the Consolidated Film Industries he was receiving the benefit of the wage scale under such agreement obtained as a result of the strike; in his particular instance an increase of one-third above his pre-existing salary.

There have been introduced in evidence several exhibits, some of which, such as the photographs, still are without meaning to the court, but several of which were intended to show that, at the time he was called upon to pay his initiation fee and dues in the.union, he was in financial distress.

Those facts were apparently presented to the union, They were presented to Mr. Wendrich. They were presented to the national president of the union, apparently, and they did not see fit to consider that a sufficient excuse for non-payment of the dues and initiation fee.

Throughout the entire story of the plaintiff, both from his testimony and from the evidence that has been marked by way of exhibits, it would appear that the plaintiff felt that he should be allowed to be a member for a $10 initiation fee, instead of $25. By becoming a member of the association, which he did voluntarily, he naturally assumed the obligations that went with such membership; and one of the obligations that goes with membership in any association, whether it be a union or a fraternal organization, or any other group — yes, even a Bar Association — one of those obligations is to pay his clues, and, where there is an initiation fee, to pay that.

Now, there has been no showing on the part of the plaintiff that the method by which he was suspended or expelled, no matter which term you apply, was in violation of the by-laws and constitution of this union.

We have not had the benefit of testimony to show the territorial jurisdiction of the union. We do not know whether it extends up to that part of New York State — Rockland County — in which the plaintiff has apparently lived for a good part of the last several years, although not continuously. We do not know the territorial jurisdiction at all of this defendant union.

There has been no showing that his prior membership in Local 51, in New York, was affected by his suspension in this local. One might assume that that would follow as' a logical sequence.

Our Court of Errors and Appeals, in 1906, speaking through Mr. Justice Pitney, in the Brennan v. United Hatters Case, 73 N. J. L. 729 (at p. 742); 65 Atl. Rep. 165, said:

“The common law has long recognized as a part of the boasted liberty of the citizen the right of every man to freely engage in such local business or occupation as he himself may choose, free from hindrance or obstruction by his fellow-men, saving such as may result from the exercise of equal or superior rights on their part — such, for instance, as the right of fair competition in the like field of human effort — and saving, of course, such other hindrance or obstruction as may be legally excused or justified.”

The law has likewise long recognized that a person may voluntarily subject himself to restrictions upon his lawful rights. We have repeatedly had before us cases wherein persons became members, for instance, of a sick benefit society, and we have found in those cases that they must first exhaust their remedy within their association, if they have any such provision, before they can resort to our law courts. So that we have recognized that a person may submit himself to a jurisdiction other than that of our courts, and that having done so he may find himself denied of the right to go into court on an equal standing with those who have not submitted themselves to the jurisdiction of such an association as in this case.

If this were an action against a union whereby it was alleged that they had conspired, and deprived a non-union man of- his right to work, by establishing an absolute monopoly in the territory, and refusing arbitrarily to take that person into membership, we would then have an entirely different picture.

Our law, both statutory and as found in our legal decisions, has gone a long way from the days of the common law, with reference to labor and labor unions. What was considered to be illegal in that respect but a few years ago has now had the stamp of approval, both by our legislatures and our courts.

The whole world, of course, is in a state of flux right now, but there has been a decided change in the contemplation of these social rights by those in authority, in the last decade or so. We are more or less getting back in some respects to the democracy of Athens in the golden age of Pericles, 450 B. C., and the social security and the social movements of those days, 2,500 years ago. They seem new to us, some of these ideas, because they have been so long asleep, but we must recognize them. And in deciding a case of this sort we must recognize that our courts have upheld contracts providing for a closed shop. F. F. East Co., Inc., v. United Oystermen’s Union 19600 et al. (Court of Errors and Appeals), 130 N. J. Eq. 292; 21 Atl. Rep. (2d) 799, September 19th, 1941. So the doubt expressed by Mr. Justice Pitney in 1906, as to the validity of a contract for a closed shop, can no longer be said to exist.

, The plaintiff himself was pleased to see an agreement for a closed shop, and could hardly be heard to complain that such an agreement is illegal.'

He voluntarily submitted himself to all of the rights and liabilities incident to such an agreement.

There has been no showing of intentional or actual malice on the part of anyone in this case. There has been no showing, as a matter of fact, that the defendant was discharged by the Consolidated. I think we all might infer that if he was not, in fact, discharged, however, that he would have been within a few minutes or hours, or a few days after being deprived of his membership card; otherwise the employer would have been confronted with the cries of the union that it was so soon violating the terms of the contract.

I do not feel that this plaintiff has made out a canse of action. He has not shown evidence from which the jury could reasonably infer that either the union defendant or the individual defendant acted in any other than a proper manner, in denying to him a continuation of his membership in the union, in view of the continued failure to meet the financial obligations imposed upon him by that membership.

This whole case seems to depend upon that one thing. He failed to continue to he a member in good standing by not paying his initiation and his clues. There is no indication that he was removed on charges of anything else.

It seems to me to be good law to-day that where a person voluntarily subjects himself to membership in a union, and fails to pay the balance of his initiation fee, and his dues, he cannot thereafter complain because of losing his membership, with such results as naturally flow therefrom.

It is to he noted that his main complaint was with reference to the amount of the initiation fee. There has been no testimony that he was dissatisfied in any way with the amount of the dues, nor did he pay those dues for the month in question, the month of June. Had he merely been dissatisfied with the initiation fee, and had paid his dues, but continued to argue about the amount of the initiation fee, we might have a little different picture. But he made no attempt to keep himself in good standing.

A judgment of nonsuit will therefore be entered.


author: Harry S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE LEE JENKINS, PETITIONER, v. A. ABRAMSON & SON, INC., RESPONDENT.
    Decided October 29, 1941.
    For the petitioner, David Boshein.

    For the respondent, William A. Davenport.

   *******

The real issue in controversy is whether the death of the deceased employee on July 16th, 1940,-was hastened by or is causally related to the accident which he suffered on May 14th, 1940. There appears no dispute that the accident in question arose .out of and in the course of his employment with the respondent and that the employer had knowledge and notice thereof.

The testimony and proofs adduced disclose that on May 14th, 1940, and for several years prior thereto, the decedent Charles Jenkins had been in the employ of the respondent as a laborer. The work required of him was of a heavy and laborious nature and from the testimony of fellow employees there seems to.be little dispute that he appeared to be in good health and performed his routine duties as a laborer in an efficient manner. On May 14th, 1940, the decedent, at the direction of his employer, proceeded with a fellow employee, by means of the employer’s truck to Paterson, Dew Jersey, to pick up a load of scrap metal. There the decedent and his co-worker proceeded to load the truck with heavy bags of metal. It is uncontroverted that this work required strenuous lifting effort by the man engaged therein. While in the act of raising or lifting a bag weighing about 300 pounds from the floor on to a hand truck, the decedent suddenly dropped his end of the load, “caved in,” seized his back and abdomen and exclaimed that he had hurt himself. He remained stooped over, could not move and on his face was an expression of pairi. Jenkins ceased working immediately and a substitute was obtained to complete the loading. Upon returning to the respondent’s office in Newark, where the accident was reported, the decedent was unable to perform any further work that day and was directed to report to the office of the respondent’s physician. He did so that day and there received medical treatment, following which he returned to his home and went to bed. Dr. Szerlip, the first physician to examine and treat the decedent following the accident, made a diagnosis of a mild lumbo-sacral strain. Thereafter, the employee was confined to his home except to leave same for medical care and he continued under Dr. Szerlip’s treatment for said injuries until June 7th, 1940. The testimony is that the treatment thus rendered was confined to the injured back. Shortly following the decedent’s discharge from active treatment by the attending physician, on June 7th, 1940, he attempted to return to work.

The evidence as to how long he worked following his return is in conflict. The petitioner’s proofs indicate that the decedent only worked for half a day and he was then obliged to return home. On the other hand, the respondent’s testimony is to the effect that the employee worked for several weeks. In an endeavor to corroborate this, certain time cards were admitted into evidence. These proofs, however, fall short of sustaining the respondent’s contention in this regard. The testimony lends itself to the conclusion that the time cards indicated that the respondent paid the decedent his full wages during the period in question. However, in view of the conceded practice of the employer to pay full wages to sick or disabled employees during convalescence, and the affirmative testimony of the decedent’s fellow employees that he only worked for half a day, I am constrained to accept petitioner’s proof with respect thereto.

In any event, the evidence is nneontradicted that following the accident the employee’s health appeared to deteriorate and grow progressively worse. According to fellow workers, he seemed “too weak to work” was getting thinner and was unable to lift bags even in the performance of “light work.” His wife testified that following the accident and during the course of medical treatment, he walked about in a stooped posture, was obliged to use a cane and complained of pains in his back and stomach, which at times interfered with his sleep. Instead of improving as time went by, Jenkins seemed to be getting weaker, lost weight, and exhibited little appetite. Following his unsuccessful attempt to resume work in early June, 1940, he was unable to pursue any other gainful occupation and was confined to his home. Moreover he abstained from practically all of his social activities.

On June 2lst, 1940, his condition was such that he consulted Dr. Walter T. Darden, with complaints of general weakness, fever, pains in back and chest, night sweats, loss of appetite and nervousness. Dr. Darden’s findings on the occasion of this examination disclosed a temperature of 102.2 degrees, together with varied symptoms. The doctor made a diagnosis of acute pulmonary tuberculosis and lumbo-sacral sprain, and in the opinion of this doctor, the decedent required further treatment. The patient’s back at that time was still strapped with adhesive. This physician was of the opinion that there existed a causal relationship between the strain suffered by the decedent on May 14th, 1940, and his condition. He testified the accident and its sequela had the effect of lowering the decedent’s general body resistance to infection with the resultant activation or lighting up of an underlying quiescent tuberculosis.

The decedent continued to grow progressively worse and on July 8th, 1940, was attended by Dr. William H. Washington. He found the petitioner to be suffering from very rapid pulse which was weak and thready, marked dyspnea with difficulty in breathing. ‘His skin was cold and clammy. He testified that there was also present a cough with marked rales over the entire chest and that the patient’s pulse and temperature were both high. He described the decedent too sick to even give a history at that time. The doctor ordered hospitalization of the patient and diagnosed the case as an acute miliary tuberculosis. This physician also found a causal relationship between the accident and the condition of the employee as disclosed by the examination. He testified that a lifting effort such as engaged in by the decedent set up an intrathoracic pressure which superimposed upon an existing focus of infection, would aggravate an underlying condition of tuberculosis.

Jenkins was admitted to the,Newark City Hospital on July 11th, 1940, and Dr. S. G-ehl of that institution examined the decedent and found him very weak, apathetic and perspiring profusely, with a temperature of 105 degrees. Rales were found over the entire chest and the abdomen was tender. X-rays taken there disclosed that the decedent was suffering from a miliary tuberculosis. This physician also was of the opinion that the trauma lighted up a tubercular focus of infection.

The health of the decedent failed rapidly and he died at the hospital on July 16th, 1940. Following his death, Dr. Leon Lewis, a pathologist, performed an autopsy on the decedent’s body. After considering the findings disclosed by his autopsy, and the facts obtained from a question embodying all of the essential details, Dr. Lewis was of the opinion that there was a relationship between the lifting effort of May 14th, 1940, and the ensuing death in July 16th of that year. The autopsy indicated to him that in all probability the decedent possessed a pre-existing quiescent pulmonary tuberculosis and that there was an active focus of infection at the apex of the right lung. It was his opinion that the exertion and strain of the lifting effort of May 14th, 1940, caused an increase of intra-pulmonic and intra-thoracic pressure, so as to cause a seeding of the decedent’s blood system with the infectious matter from the aforesaid pulmonary focus. His opinion in this regard was further fortified by the time element which elapsed between the strain and the ensuing development of tubercular symptoms. Significantly the autopsy disclosed a miliary tuberculosis of a few weeks duration.

Dr. Harold S. Hatch, a specialist in diseases of the chest, also appeared on behalf of the petitioner and testified that in his opinion the trauma or strain caused a lowering of the decedent’s body resistance to infection and played an important part in the acceleration of the underlying quiescent tuberculosis and the production of active symptoms therefrom. The decedent was thus rendered unable to ward off the infectious tubercular process. This expert also considered the time element as a factor in determining that there existed a causal relationship since the various symptoms appeared well within the time during which they would be expected to assert themselves, if they were related to the accident, or strain. In his opinion, the appearance of said symptoms within three weeks after the trauma was well within the development period. The evidence established that the symptoms, which were' subsequently diagnosed as those of tuberculosis, developed during the period in which the decedent was convalescing from the back injury, and when his body resistance to ward off the effects of a tubercular infection was below his normal recuperative powers.

The respondent offered the testimony of Dr. Szerlip, who treated the decedent for a lumbo-sacral sprain, on behalf of the employer. This, evidently, by reason of the fact that the petitioner manifested no active symptoms from any other condition at the time. Drs. M. J. Fine, Irving Applebaum and Barnet, the latter an interne, also testified on behalf of the respondent. While they were of the opinion that there was no relationship in this case between the accident and the death of Jenkins, an examination of their testimony indicates that they conceded as a general medical proposition, that trauma can and does result in the lowering of the bodily resistance of the victim to infection, and that a quiescent tubercular focci may thus be lighted úp into activity and produce disability symptoms.

With the proofs in this posture, I am called upon to'determine whether the employee’s death and the admitted occupational accident are causally related. The respondent contends that the accident in question, resulted in injuries only to the lumbo-sacral area oí the back and that they were not serious. Moreover, it is urged, the decedent failed to complain to Dr. Szerlip, the treating physician, concerning anything referable to his chest and lungs.

I am satisfied that had Dr. Szerlip been aware of any chest condition, he would have examined the employee with respect thereto, and would have either treated or arranged for such treatment to be furnished him. I am constrained to conclude, from all of the testimony and surrounding circumstances, that the petitioner during the period of his treatment by Dr. Szerlip, had no serious complaints referable to his chest and lungs. It was not until he was discharged from this doctor’s treatment and was convalescing from the effects of the accident that the symptoms attributable to his tubercular condition manifested themselves sufficiently to render the employee cognizant thereof. In view of the expert medical testimony adduced, it is not only conceivable but quite probable that during the period of treatment from May 14th, to June 7th, the tubercular sysmptoms failed to assert themselves because they were in a stage of development and had not reached the point where they would be sufficiently distressing to impress themselves upon the consciousness of the victim.

To employ the reasoning of the Supreme Court in Bobertz v. Township of Hillside, 125 N. J. L. 321; 15 Atl. Rep. (2d) 796; affirmed, it is evident that the decedent’s mental search for the cause of his disease from which he eventually died, may have proceeded slowly, not only because of the more distressing and acute phases of his back injury, but also by reason of the fact that in his untrained mind the accident did not loom large in his mind as a causative factor of his tuberculosis. In the case at bar as in the Bobertz case, the symptoms indicating an activation of a tubercular process, asserted themselves within what might well be called “the period of incubation.” The preponderance of the credible medical testimony clearly indicates that such symptoms may well arise, as they did here, within two months after the accident and injury suffered by the victim.

I am satisfied from the proofs before me, that at the time of the decedent’s accident, he'possessed an underlying tubercular condition which evidently was quiescent and did not impede him in the performance of his laborious duties. Dr. Leon Lewis who performed the autopsy found what unquestionably appears to be an advanced stage of the diseased condition of the employee’s lungs. The greater weight of the-medical testimony leads me to the definite conclusion that the decedent at the time of the accident not only injured his back, but that his lungs were also subjected to an intra-pulmonic or intra-thoracic pressure which caused a seeping into his blood system of the infectious matter and material from the pulmonary focus. As a result, he suffered from a rapid or miliary spread of this disease which within a reasonable period of time following the accident, manifested itself in the symptoms described by the employee’s several treating physicians. It may be accurately said that the ultimate effect of this strain upon his lungs did not become apparent for several weeks, but during that time there undoubtedly was a gradual deterioration within those organs of the employee.

I am convinced and so find that the sprain and injury which the petitioner suffered in the accident of May 14th, 1940, was the causative factor of a change in the condition of his lungs as was described in detail by Dx. Lewis in his testimony. I am satisfied from the proofs that a simple dissemination of the tubercle bacilli did not produce any manifestations until the tubercles began to form and that the decedent was not aware of the effect of his injuries upon his lungs until shortly after his discharge by Dr. Szerlip. I consider this period of time to be reasonable for causing such an effect. Here the decedent’s tuberculosis was unquestionably activated and accelerated by the effects of the trauma to which he was subjected. Leaching the conclusion above indicated, I necessarily find as a fact that the accident as described and concerning which there is no dispute, hastened the death of the decedent.

A preponderance of the proofs favor the theory of the petitioner’s case. The conclusions here reached are predicated upon the reasonable probabilities in this case. Our cases hold that petitioner is not required to prove conclusively and beyond a doubt the causal relationship which she asserts. Her burden is only that of establishing her case by a credible preponderance of the evidence. Reasonable probability is the touchstone, not absolute medical certainty. Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187; Belyus v. Wilkinson, Gaddis Co., 5 N. J. Mis. R. 804; Jackson v. New York Shipbuilding Co., 119 N. J. L. 542; 197 Atl. Rep. 284.

Considering the nature of the injury suffered in the accident, the time element, and the progress of the disease which eventually caused the employee’s demise, I am satisfied and so find that the testimony produced by the petitioner, more than carries the burden of proof that there was a causal relationship between the accident and the death.

I therefore find and determine that the petitioner’s decedent suffered injuries as a result of an accident arising out of and in the course of his employment with the respondent, and that his death was hastened thereby and that the respondent had due notice and knowledge of the accident.

$ $ $ $ $ $

It is, therefore, * * * determined and ordered that judgment be entered in favor of the petitioner * * * and against the respondent * * *.

Harry S. Medinets, Deputy Commissioner.


author: Flannagan, J.

text:
    Essex County Court of Special Sessions.
    STATE OF NEW JERSEY, RESPONDENT, v. JESSIE JEFFERSON, DEFENDANT-APPELLANT.
    Decided November 28, 1941.
    Eor the defendant-appellant, Sanford Silverman.

    Eor the State of New Jersey, Emanuel Millman.

   Flannagan, J.

This is a trial de novo of an issue based on a complaint made originally in the Family Court of the City of Newark before a magistrate of the city. The trial de novo is by virtue of an appeal from his decision under chapter 54, laws of 1941, R. S. Cum. Supp. 2:206-11; N. J. S. A. 2:206-11. This is not a review of the proceedings before the magistrate, but a trial de novo upon the pleadings, which are thus open to attack in this court.

A motion is now made preliminary to the trial de novo to strike the complaint as failing to charge any offense on its face. The proceedings in the Eamily Court were brought under the portion of the Disorderly Persons Act (R. S. 2:202-16) which provides, inter alia, that any person engaged in an illegal occupation or who bears a bad reputation and consorts for an unlawful purpose with criminals or persons who bear a bad reputation shall be adjudged a disorderly-person.

The complaint alleges that the said Jessie Jefferson then and there being a criminal and/or haying a bad reputation did consort with criminals and persons haying a bad reputation, to wit: Marjorie Morrell (and others, naming them) for an unlawful purpose in violation of R. S. 1937, 2:202-16; N. J. S. A. 2:202-16, of an act concerning disorderly persons, &c.

The objection made to the complaint is that it is in the “conjunctive-disjunctive form.” The use of the “fractional form of expression” in pleadings has been emphatically condemned by our Court of Errors and Appeals. Fisher v. Healey’s Special Tours, Inc., 121 N. J. L. 198; 1 Atl. Rep. (2d) 848. In that ease the court says:

“But the expression ‘and/or’ while much in vogue of recent years in commercial circles and even in certain acts of the legislature has never been accredited in this state as good pleading or proper to form part of a judgment record; and has been severely criticised by many courts of high standing. (Citing many eases.) It seems odd that as early as 1855 an English court dealt with the matter. Cuthbert v. Cumming, 10 Exch. 807. In this state, our Supreme Court in 1934 was constrained to set aside a conviction under chapter 280 of Pamph. L. 1933, an amendment of the Disorderly Persons Act, because of the conjunctive-disjunctive definition of the offense. Montella v. State (not reported, No. 232, January term, 1934). See, also, Harcher v. Hurley, 116 N. J. L. 18 (at pp. 20, 21). We concur in the disapproval of the expression by the courts of our sister states, and take this opportunity of registering that concurrence for the benefit of the bar.” (Page 199.)

In the unreported case in the Supreme Court in which Mr. Justices Case, Bodine and Donges sat, to which reference is made in the above quoted opinion of Mr. Justice Parker, the following was the language of the court, Mr. Justice Bodine writing the opinion:

“The prosecutors were convicted in a summary proceeding for a violation of chapter 280 of the laws of 1933. The statute is an amendment of the Disorderly Persons Act. The legislature unfortunately used the inexact phrase ‘and/or’ between the various clauses of offenses denounced by the act. We cannot say that they meant either the conjunctive ‘and’ or the disjunctive ‘or’ to prevail. Since they used both, we can only observe that they meant both. That is, the offep.se condemned is either doing all the things specified or only some of them. This leads to an uncertainty as to the precise nature of the offense. It may be one or the other thing. If the legislature meant the conjunctive to prevail the prosecutors were properly convicted. Since they used the conjunctive, we must give due weight to their language. The statute may not be reframed by the court. If they desired the ‘or’ to prevail they need not have used the ‘and.’ The convictions cannot be upheld in the face of the uncertainty as to the offense condemned. The legislature is charged with a duty to define offenses. They can do so in language which is definite and certain. So much has been written concerning this illusive phrase ‘and/or’ and its applicability to the language of a statute that no more need be said.

“Courts may not impute one meaning or the other to legislative acts. The statute, since it provides that the offense may be one thing or another, leaves to the court the settlement of what offense was intended. This the court may not do when the legislature has expressed itself in this vague and illusive manner by saying that either of two things may be the offense intended. The court may not choose a meaning in order to deprive the citizen of his liberty.

“The convictions are set aside.”

The complaint in the instant case, as phrased, does not with sufficient certainty apprise the defendant of what he is charged, and in case of a conviction of guilty as charged does not with sufficient certainty establish of what he is convicted.

'It is argued that the allegation that the defendant was a “criminal” is surplusage, but I do not entertain this view; having been alleged in the charge, it must be proven. State v. London, 1 N. J. Mis. R. 89.

It was suggested that the complaint may be amended in this court, but I do not find any authority to do so in the statute, chapter 54, laws 1941, under which this appeal is brought. In the “statement” appended to this act the following is found, “This act provides the same relief in disorderly cases as is granted in motor vehicle cases,” and such it would thus seem was the purpose of the draftsman, but the important and broad provisions for amendment in the appellate court on the trial de novo found in the statute governing appeals in motor vehicle cases, R. A. 39:5-11; N. J. S. A. 39:5-11, are, notwithstanding the words above quoted from the “statement,” entirely omitted from this act.

It is unfortunate if convictions which may be just have to fail on technical grounds. In this connection the remarks by Mr. Justice Swayze, quoted by the Supreme Court in State v. Weber, 127 N. J. L. 274 (at p. 278); 22 Atl. Rep. (2d) 191, are pertinent: “Desirable as it is to punish crime, it is still more important to administer justice according to law; when that is once abandoned, we are adrift without chart or compass.”

The complaint will be stricken.


author: Pee Curiam.

text:
    THE NEW JERSEY TEXTILE MACHINERY COMPANY, A CORPORATION, PLAINTIFF-APPELLEE, v. UNITED STATES TRUST COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Decided December 21, 1923.
    Negotiable Instruments — Certified Checks — Stoppage of Payment Order of Maker Before Payment is Binding Upon Bank.
    On appeal from tlie Paterson District Court.
    Before Justices ICalasch and Katzembacti.
    Dor the appellant, Wayne Dumont.

    Dor the appellee, Peter Cohn.

   Pee Curiam.

The agreed state of facts show that the plaintiff below was a depositor of the defendant bank. It made out a check payable to Gordon Yarn Company, of the city of Yew York, for the sum of $450, and after having had the cheek certified by the defendant bank delivered it to the Gordon Yarn ilompany, who endorsed it and deposited it, and it was sent through éxchanges to the defendant bank for payment, and was there paid. Prior to the payment of the cheek by the bank it had been duly notified by the plaintiff, the maker of the check, not to pay the check; but the bank refused to heed the notice.

We think the facts of this ease fall within the control of Times Square Auto Co. v. Rutherford National Bank, 77 N. J. L. 649, where it was held that when a check of a depositor is certified at the request of the maker he is not discharged thereby and may stop payment and the bank' must give heed to such notice, for in such a circumstance both the drawer of the check and the bank are entitled to set up that the check was procured by fraud. To the same effect is Watson v. Merchants’ and Manufacturers’ Bank, 1 N. J. Adv. Rep. (No. 5) 104.

. The contention on behalf of appéllant that the check being negotiated by delivery in New York the transaction is controlled by the law of the State of New York, which prevents the drawer of a certified check from stopping payment after delivery cannot be 'raised on this appeal.

We are not called upon to consider this contention, because there is nothing in the agreed state of the case which presents the question raised upon this appeal, for the first time, and it nowhere appears on the record what the New York law on the subject is; nor was there any proof on the subject whatever.

Judgment is affirmed, with costs.


author: Pee Ctjhiam.

text:
    JOSEPH ZUCKERMAN, PLAINTIFF-APPELLEE, v. LOUIS HANDLEMAN, DEFENDANT-APPELLANT.
    Decided December 21, 1923.
    Negotiable Instruments — Notes—Verbal Contract to Hold the Note That Certain Set-offs May Be Made Thereon Is Not Binding Under Rule That an Oral Contract Agreement Properly Be Done to Vary the Terms of a Written Instrument — Objection to Endorsement to Be Set Up In Pleading or By Affidavit In Courts Where a Plea Is Not Required.
    On appeal from the First District Court of Newark.
    Before Justices JCaliscu and Katzenbach.
    For the appellant, Edward Schoen.

    For the appellee, Benjamin M. Weinberg.

   Pee Ctjhiam.

The plaintiff sued on a promissory note, made by L. Handleman to the order of Joe Londinsky, for $464, dated April 24th, 19.22, payable three months after date for “value received.”

The state of the case settled by the court discloses that Handlemau signed the note in question and delivered it to Joe Londinsky, who in turn passed it over to Joseph Zuekerman, the plaintiff, who testified that the full amount was due on the note.

Against plaintiff’s objection the defendant was permitted to introduce evidence concerning the making of the note to the effect that the note sued upon was a renewal of a note given by the defendant to Joe Londinsky, a former partner, as evidence of a partnership indebtedness due to Londinsky: that when the note in question was given to Londinsky the plaintiff was present and knew that the note was given as evidence of Londinsky’s claim against the partnership for moneys advanced by Londinsky over and above his original partnership contribution, and was to be held by Londinsky until an accounting could be had which would show any moneys which Londinsky might have collected on, account of the partnership, which should be offset against the note, and that Londinsky agreed to hold the note and not to negotiate, discount or place the same for collection.

At the- conclusion of defendant’s case this testimony, on motion, was struck out on the ground that it tended to alter, vary or add to the terms of the written instrument. Defendant’s attorney then moved for a direction of a judgment in favor of the defendant, Louis H andleman, on the ground that the endorsement of Joseph Londinsky was not proven. This motion was also denied.

The two grounds relied on and argued in the appellant’s brief are as follows:

1. That it was error to strike out the testimony as set forth in the state of the case.

2. That the District Court erred in refusing to direct a verdict for the defendant upon plaintiff’s failure to prove the endorsement of Joseph Londinsky.

As to the first ground that the court erred in, striking out the testimony which had been admitted against the objection of plaintiff’s counsel.

The plaintiff was the holder of the note, which was a renewal of a previous note made by the defendant, and was complete and regular upon its face,.and bore the endorsement of Joe Londinsky; the payee of the note. The plaintiff testified that the full amount of the note was due him.

The note was offered in evidence. Article 4, placiiwn 59 of the Negotiable Instruments act (3 Comp. Stat., p. 3741).provides: "Every holder is deemed prima facie to be a holder in due course.” * * * By article 2, placitum 24 (3 Comp. Stat., p. 3738) "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

What the defendant endeavored to establish as a bar to a recovery on the note was that at the time of the renewal of the note he had made an oral agreement with the payee of the note in the presence of the plaintiff and that the note was to be held until an accounting could be had which could show any moneys the payee might have collected, on account of the partnership and tiras be an offset against the note. There was no assertion that the payee had collected any of the partnership accounts or that he was indebted to the maker in any stun whatever. But be this as it may, it is quite clear that these facts did not establish a fraud which would vitiate the validity of the note. The attempt to successfully fasten the alleged contemporaneous oral agreement to the note is without support under the well-settled law of this state. The effect of the oral agreement was to vary the terms of a written instrument and this cannot be properly done. Naumberg v. Young, 44 N. J. L. 331.

Counsel of appellant does not claim that the testimony stricken from the record was offered for the purpose of establishing that there was any fraud in the procuration of the note; hut as. the plaintiff, the holder of the note, was present at the time the alleged oral agreement was made and cognizant of its terms, that under Chaddock v. Vauness, 35 N. J. L., such testimony was admissible. But this apparently is a misconception of what was there decided by the Court of Errors and Appeals. Mr. Justice Depue (at p. 552), delivering the opinion of the court, said: “As applied to commercial paper, drawn and endorsed so as to create the usual contract of endorsement, the weight of authority greatly preponderates against the admission of parol evidence of an agreement between ilie parties to qualify or vary the contract of endorsements, whether it be made in blank or in full.” Here follows a citation of numerous cases in support of the statement.

The learned justice continued: “The inadmissibility of parol evidence to vary the legal import of commercial paper is forcibly advocated by Professor Parsons. 2 Pars. N. 520. He maintains that iU competency is limited to exceptional cases. Id. 23. The exceptional cases are those in which the evidence tends to establish a delect in consideration, or the instrument is informal and, therefore, no commercial contract is created by the endorsement per se. It is upon the principle of this exception that the evidence received by the court in this ease was properly admitted.”

Now, as in the present ease, the note sued upon was in complete and regular form and the testimony offered, by the defendant and stricken out by the court tendered neither to establish a failure of consideration or that the note was procured by fraud, of which the plaintiff and holder of the note had knowledge; but, on the contrary, tended to vary the legal import of such note, the trial judge was warranted in giving no legal effect to such testimony and in striking it from the record.

2. The further contention of counsel of appellant that the defendant was entitled to a direction of a verdict in his favor because the plaintiff did not prove the endorsement of Joe Londinsky on the note is without legal support.

Section 1 of “A supplement to an act entitled ‘An act concerning evidence’ (Revision of 1900),” Comp. Stat. Supp,: (1911-1915), p. 581, placitim 5, provides:

“In every suit or judicial proceeding in any of the courts of this state which is brought upon a negotiable instrument the authenticity of any signature or endorsement upon said instrument shall be taken to be admitted, unless it is put in issue by the pleadings, and in courts in which the practice is that the defendant need not file a plea the authenticity of such signature or endorsement shall be taken to be admitted unless the party to the suit denying the authenticity of such signature or endorsement shall file with the court an affidavit stating that to the best of his or its knowledge and belief such signature or endorsement is not the true signature or endorsement of the person purporting to have made the same.”

The District Court being a court in which the practice is that the defendant need not file a plea, and aro such affidavit having been filed by the defendant iar the present case, denying the authenticity of the endorsement as required by the statute, where such signature is required to be proven, by force of the provision of the statute, the signature was admitted without any proof thereof by the plaintiff. The motion for a direction of a verdict for defendant upon that ground was properly denied.

Judgment is affirmed, with costs.


author: Minturn, J.

text:
    CHARLES MUHLENBECK v. TOWN OF WEST HOBOKEN ET AL.
    Decided December 28, 1923.
    Pleading — Striking Out Plea as False or Sham — To Justify Court it Must Appear so Palpably False or Insufficient as to Justify the Conclusion that Defendant is Seeking Delay or is Trifling with Court.
    On motion for summary judgment on plea.
    For the motion, Harlan Besson.

    Contra, Abram C. Safyer.

   The opinion of the court was delivered by

Minturn, J.

The Court of Errors and Appeals, at the present term (Muhlenbeck v. West Hoboken, vol. 1, No. 42, N. J. Adv. Rep. 1495), held that the judgment of nonsuit directed against the plaintiff at a former trial was error.

The question involved was whether the plaintiff had entered into a contraed with the town to accept a reduced salary from that established by ordinance. The Court of Errors and Appeals, on the facts submitted, held that the question was at least one for the jury. The facts presented on this motion present a stronger ease than that presented upon the appeal, and I am therefore not disposed to deprive the defendant of the opportunity of substantiating his contention upon a trial before a jury. To warrant the court in striking out a plea as false or sham, it must be so palpably false or insufficient in law as to enable the court to conclude that the defendant is seeking delay or trifling with the process of the law. Fidelity Insurance Co. v. Wilkes-Barre Railroad Co., 120 Atl. Rep. 734.

When to decide the question it becomes necessary to take testimony to enable the court to determine the relative merits of the controversy, or the justice or injustice of the defense, the defendant’s constitutional right to a jury trial requires that the motion to deprive him of his defense be denied. The taking of testimony upon the issue thus presented therefore, on this motion, will serve no practical legal purpose, and the motion to strike out will be denied, but without costs.


author: Per Curiam.

text:
    SALLIE RUHWADEL v. WILLIAM H. HARDING.
    Decided December 28, 1923.
    Contracts — Payment Without Consideration — Action to Recover —Direction of Verdict for Plaintiff — Appeal on Ground of Alleged Error in Admission of Evidence Cannot be Sustained When Instruction was Based on Agreement Between Counsel.
    On appeal from the Atlantic Circuit Court.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For-the appellant, Cassman & Gottlieb.

    For the respondent, Clarence L. Cole.

   Per Curiam.

This action was brought by the plaintiff to recover the amount oí a check for $5,000, delivered by her to the defendant for a consideration Which entirely failed. It was admitted that the cheek was given for property purchased by the plaintiff, that the defendant had received the money on the check, and that he had not delivered to her the property which was the subject-matter of the purchase. At the close of the trial, as appears from a recital contained in the rule for judgment, and also in the judgment itself, “the jury, by agreement of counsel, were authorized and the judge directed them to find a verdict in favor of the plaintiff in the sum of $5,000, plus such amount of interest as they found to be due.” Based upon this recital, the following adjudication appears in the judgment: “Whereupon it is ordered that the plaintiff, Sallie Rulrwadel, recover of the defendant, William II. Harding, the sum of $5,125 damages and $55.26 costs of suit.”

From this judgment the defendant has appealed, and states as the sole grounds of appeal alleged errors of the trial court in mling upon the admission of testimony. Assuming the rulings to have been, each of them, erroneous, it is obvious that no harm was suffered by the defendant therefrom, for the verdict upon which the judgment rests was not the result of a consideration by the jury of the testimony or any part of it, but was due solely to tile agreement of counsel and the instruction of the trial court based upon that agreement.

The judgment under review will be affirmed.


text:
    GILBERT D. HEDDEN, PLAINTIFF, v. THE GEORGE G. SALMON COMPANY, A CORPORATION, DEFENDANT.
    Submitted June term, 1923
    Decided December 27, 1923.
    Negligence — Motor Vehicle Collision — Automobile Struck by Motor Truck at Intersection of Streets — New Trial Ordered on Ground that Verdict was Against Clear Weight of evidence.
    On defendant’s rule to show cause.
    Before Justices Kalisch and Katzenbaci-i. .
    For the rule, Kalisch & Kalisch (Isidor Kalisch on the brief).
    Contra, Peck, Davis & Gray.

   Per Curiam.

There was a verdict rendered by'a jury in this case in the Essex Circuit in favor of the plaintiff and against the defendant for $700. The defendant seeks a new trial upon the ground that the verdict was against the clear weight of the evidence. There was a collision on Centre street, South Orange, between the plaintiff’s automobile and the defendant’s motor truck. The collision occurred on January 31st, 1921,. at about six-thirty o’clock in the evening, at the intersection of Centre street and Hamilton road, both of which streets are much traveled thoroughfares. Montrose avenue is a continuation of Hamilton avenue from the intersection above stated. The plaintiff was driving his automobile south on Centre street, and in testifying as to how the accident happened said: “As I approached the crossing — I was driving a new car — well, it was a second-hand car that I had about three days I think— and about three hundred feet before I got to the crossing I glanced at the speedometer and noticed that I was going about twenty-five miles an "hour. * * * As I got to the crossing I glanced to the left, saw nothing, looked to the right, didn’t see anything there, proceeded on to go across the intersection, of the two roads. As l was exactly in the center of the crossing something hit me directly from the left. I found out afterwards that it was Salmon’s coal track. The impact of the truck was directly in the center of the left-hand door, right at my shoulder as I was driving.” The witness also testified that at the time his automobile was hit he was going at a speed of eighteen to twenty miles an hour. The witness subsequently modified his testimony by saying that the only ohservation.be made to ascertain whether there was any approaching automobile on Hamilton road was when he was seventy-five feet from the intersecting crossing, and that it was then that he glanced to the left and looked to the right and did not look again, and that he did not give any warning of his approach to the crossing by blowing a horn or otherwise; that when he made his observation that he could see down Hamilton road one hundred feet. The learned judge in his charge to the jury remarked: “Tlie plaintiff says you will recall — and I am going to quote his words because it seems to me they are important — that he made an observation when he was about seventy-five feet from Montrose avenue and that he did not look again until the collision occurred, and the way lie looked was, as he says, ‘1 glanced to the left and looked to the right.’ A person cannot glance; that is not a compliance with the rule I have mentioned unless glancing means looking, and 1 do not know why he used the word ‘looking’ in the one case, ‘glancing’ in the other. I ‘glanced to the left and looked' to the right and saw nothing.’ ”

On behalf of the defendant there was testimony that the track had lights upon it and was being operated at about six miles an hour, and that upon its approach to the Centre street crossing the driver blew a horn and that the front of the truck had reached Centre street and had made a turn to the left when 'there was an impact with something passing the track on the right which threw the driver from his truck into the street.

There is a lack of probability in the plaintiff’s version of the facts leading up to the collision. For if it be true as he asserts that at the time while Ms automobile was running at a speed of twenty-five miles an hour, which speed was reduced to between eighteen and twenty miles as he neared the crossing, and when he was within seventy-five feet of the place of collision he glanced down Hamilton road and could see a distance of one hundred feet and saw no auto truck, then it follows that the auto truck must have proceeded more than one hundred feet while the automobile went seventj’-five feet, in order to have hit the automobile at the place where the plaintiff asserts it was struck. Now, if that were the case, the heavy auto truck, running at a greater speed than the lighter automobile, it needs no stretch of imagination to conceive that a collision between the two vehicles under such circumstances would have had a more disastrous result to the lighter vehicle than appears.

Taking this feature of the plaintiff’s case in conjunction with the version of how the accident happened, as detailed, by defendant’s witnesses, it seems to- us that the verdict is so clearly against the weight of the credible evidence as to warrant a setting aside of the verdict and ordering a new trial.

Eule made absolute.


author: Gummere, Chief-Justice

text:
    New Jersey Supreme Court, Essex Circuit
    Brown & Seccomb, a corporation, v. Harry Shafman et al.
    Examination Before Trial — Unethical to Advise Client not to Answer Questions which are Relevant and material — Should Object to Those He Regards Improper and After Commission has Returned Testimony Move the Court to Strike Out All Questions Which Were Objected To — Attorney not Concerned in Whether Answer Will Incriminate Witness.
    Application to compel a party, who has been subpoenaed to appear and testify before trial, to answer questions which he had refused to answer on the advice of his counsel.

      Messrs. Silberman £ Grosmlpn (by Mr. Robert D. Grosman), for the plaintiff.

      Mr. Maurice J. Zucker, for the defendants.
   Gummere, Chief-Justice

(after argument).

When a subpoena ad testificandum is issued under the statute the party who takes out the subpoena is entitled to examine his adversary before a supreme court commissioner, and he is entitled to have from that party answers to all competent and relevant questions.

It is no part of the function of counsel, in fact it is unethical for counsel, to advise his client not to answer questions which are relevant and material to the issue. The proper course for counsel to pursue in an examination of that kind is to object to all questions which, iii his opinion, are incompetent, irrelevant or immaterial, and then, when the commissioner has returned the testimony, to move before the court to strike out all questions and answers to which he has objected at the time they were, submitted and which he considers illegal.

The method of procedure which counsel for the defendants and these other members of the bar (with whom he says he has consulted) have adopted would make it impossible to conduct an examination of this kind with any hope of finishing it, for, according to their theory, as I understand it, an attorney may instruct his client not to answer a question or any questions, and then, when the client follows that advice, the matter is to be brought to the attention of the court, and, if the question is proper, the court is to say to the witness, “yea, you must answer that question,” and then the parties go back to the commissioner, and the witness answers that question, and then refuses to answer the next, whereupon the parties come back to the court for instruction with relation to that question. If the witness is asked twenty questions, each one of which he refuses to answer, that means a delay, ordinarily, of twenty weeks, and, if fifty questions are asked, .that means a delay of fifty weeks, for it will take at least a week to get a judge to pass on each question thus dealt with.

If any such conduct was indulged in where an examination was held under an order of the court, someone would get into hot water; and the reason of it is that any such conduct would not only be improper and unethical,' but would be practically a contempt of the court whose order is thus disregarded.

(After further argument.)

(To defendants’ counsel) : It does not concern you, as an attorney, one iota whether the answer of your client to a question put to him will incriminate him or whether it will not. The fact that the answer may incriminate him does not make the answer incompetent. If it will incriminate him he may refuse to answer upon that ground; but whether he will refuse to answer on that ground or not is a matter for him personally to determine, without advice from his lawyer or from the court. It is a personal privilege, which he may assert or waive, &s he sees fit. A question is not objectionable at all merely because the answer will tend to incriminate; and counsel has no business — I mean legal business — -to object for any such reason to a question which is competent. Much less is there any justification for his action in advising his client to refuse to answer a question for such a reason.


text:
    New Jersey Supreme Court, Essex Circuit.
    VanHorn v. Hoegel et al.
    Taxes — Sales for Property for Non-payment — Possession—Right to Rents — Certificate of Sale Must be to the Purchaser Himself, not to All Non-existing Corporation or Trade Name.
   Gummere, Chief-Justice

(after argument).

This suit is brought by a man named VanHorn to collect from the defendants rents which the latter have received from the tenants in occupation of certain premises in East Orange, as I understand it, and the basis of the plaintiff’s claim is that some year or more ago this property was sold by the taxing authorities of East Orange for non-payment of taxes; that the plaintiff attended the tax sale, and that the property was struck off and sold to him by the collector, and a certificate of sale, showing his purchase and his rights as a purchaser, delivered to him, and that this certificate, as I judge, was duly recorded, in compliance with the statute. (I have not looked through the complaint.) The plaintiff claims that, although he was never in possession personally, and although the rents were never demanded by him from the tenants, yet, because of his light to possession as the purchaser at the tax sale, he was entitled to these rents, which were collected by the agents of the owners, subject to his rights as the purchaser at the tax sale; in other words that, as such purchaser, he was entitled to those rents and may recover them from the record owners or their successors in title.

In view of the conflict of authority alleged to be exhibited by the decisions of the supreme court, to which counsel have referred this morning, I should hesitate to decide, without an .examination of those decisions, either for or against the proposition that, in order to entitle the purchaser at the tax sale to the rents of the property which had been sold, he was required to take possession himself, and then rent the property, or at least to have the tenants in occupation attorn to him as the landlord. Of course, he has a right to the rents, under the statute, if he takes possession in the way I have mentioned.

But it is not necessary to decide that legal question, as I think, for this reason. The plaintiff is only entitled to these rents (assuming his construction of the statute, to which T have referred, to be sound) when it appears that he was the purchaser at the tax sale — that is, that the collector had sold the property to him, and delivered to him, as the purchaser, a certificate exhibiting that fact. The certificate, which he has produced and annexed to his complaint as evidence of his right to these rents, conclusively shows that he is not entitled to them; for this certificate, made by the collector, was not to the present plaintiff, Mr. J. Chauncev VanHorn, as purchaser, but to either a corporation or a non-existing entity, known as the New' Jersey Investment Company. Whether that is a corporation, and whether the property was sold to that corporation or not, does not appear, except that the plaintiff says, “there is not any such person, but I was carrying on business under that trade name, and the certificate was really meant for me.” That may or may not be so; but whether it is so or not is quite immaterial, in view of the statutory requirement that the certificate must be made out to the purchaser himself — that is, to the person or corporate entity to whom it has been struck off — and not to a non-existing company or a more trade name.

Because of the fact that the certificate exhibits no right of any kind in this plaintiff under that tax sale, I think this complaint should be stricken out.


author: Parker, J.

text:
    Morris County Court of Quarter Sessions.
    The State v. Simon Lowenthal, defendant.
    [Decided December 29th, 1923.]
    Search Warrants — Jurisdiction up to Time of indictment, Inquiry Into Legality Is Committed to “the Magistrate” Taking the Initiative — Whether Before Indictment a Direct Review is Provided by Law not Decided — Court of Quarter Sessions >,as no Jurisdiction Before Indictment.
    On rule to show cause why a search warrant issued by the recorder of Bockaway borough should not be quashed and certain seized property returned.
    Before Justice Parker and. Judge C. Eraniclin Wilson.

      Mr. Elmer King and John M. Mills, for the defendant.

      Mr. James II. Bolitlio (prosecutor of the pleas), for the state.
   The opinion of the court was delivered by

Parker, J.

The search warrant was issued under the provisions of the Prohibition Enforcement act, commonly called the Hobart act. P. L. 1922 p. 615. By virtue of the warrant certain bottles oE intoxicating liquor were seized and returned with inventory, and defendant was also arrested and gave bail to appear before this court at a stated day. No indictment has been found and the grand jury is not expected to reconvene during the present term. Defendant, therefore, is in the position of any other person accused by a formal complaint and held over to await the action of the grand jury. But as his property has been seized, as he claims unlawfully, he applies to this court to overrule the action of the recorder by quashing the writ and ordering a return of the property. Depositions have been taken under the rule in attack on and support of the propriety of issuing the warrant. At the outset, however, the prosecutor makes the point that this court is without jurisdiction of the subject-matter at this stage, and, after consideration, we are impelled to that conclusion.

The original jurisdiction to entertain and act on complaints in this class of cases is by the statute committed to a class of officers therein denominated “magistrates” described in section 9 as any one of the following:

A justice of the supreme court;

A judge of the common pleas;

A supreme court commissioner;

A judge o£ a city criminal court;

A police justice or recorder of any municipality;

But not a justice of the peace.

And the extent of jurisdiction of the magistrate is, by the same section, distinctly prescribed as follows:

“The ‘magistrate’ shall be the official charged with the taking of any complaint, the issuing of any warrant or search warrant hereunder, the hearing upon the return of any warrant or search warrant so as aforesaid issued, the admission to bail, the commitment of a person so charged in default of bail, the detention, return or disposal of any property seized by virtue of any search warrant issued hereunder or the performance of any judicial act prior to the indictment of a violator hereof.’’

This language, especially that relating to the detention, return or disposal of property seized, seems to. indicate quite plainly that any inquiry touching the legality of the seizure is to be held, at least in the first instance, before the “magistrate” to whom is committed the performance of any judicial act prior to the indictment. But if there could he any doubt about this, it is settled by later sections of the act. Section 18 carefully prescribes the procedure to be had before a warrant can issue; section 23 requires its return within ten clays; section 24 provides for a receipt to the owner; section 25 for an inventory and delivery of a copy thereof to the owner, and sections 26 and 27 for the'procedure before the magistrate in case of challenge of the warrant.

Section 26:

“If the ground on which the warrants were issued be controvertea the magistrate must proceed to take tesimony in relation thereto and the testimony of each witness must be reduced to writing and subscribed by him.”

Section, 27:

“If, on the return day of any search warrant, it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property to be returned to the person from .whom it was taken,” &c.

We can read no other intent in this language than that, up to the finding of an indictment at least, the jurisdiction to inquire into the legality of a search warrant is committed to “the magistrate.” It is suggested that any other person embraced in the statutory catalogue of “magistrates” may make such inquiry, i. e., that the legality of a search warrant issued by a recorder may be tested by a justice of the supreme court; but a reading of the various sections taken together will satisfy the mind that the magistrate taking the initiative continues in charge; and if a justice of the supreme court may thus review the issue of a search warrant by a recorder, with equal propriety, so far as the statutory language is concerned, may a recorder review a warrant ordered by a justice of the supreme court. And such examination by the original magistrate on the return of the warrant is no new thing, but the practice that existed at common law.

In Farrow v. Springer, 57 N. J. Law (at p. 354), the supreme court, relying on Hale P. G., said: “Upon its return the magistrate is to examine the matter ; if it appears, the' goods were not stolen, the person in whose custody they were found is to be discharged and the goods redelivered.” As to the suggestion that this court has jurisdiction of this application under the general powers conferred upon it by the Criminal Procedure act, the answer is that the Hobart act, as a later statute, is controlling on the question now before us.

On this phase of the case, the conclusion we reach is that while the justice of the supreme court and the judge of the common pleas, who happen to be sitting in the sessions on this rule, are both “magistrates” under the statute, neither qua “magistrate” is entitled to review the propriety of the issue of this warrant or the seizure of the property, nor is the court of quarter sessions, as a court, in control of the case at this stage for any such purpose.

It was suggested that certiorari might lie; and while this court has no controlling voice on that question and does not undertake to decide it now, it may not be out of place to note again Farrow v. Springer, 57 N. J. Law 353, where it is flatly held that certiorari will not lie in a stolen goods case. It seems to have been similarly held in Massachusetts, perhaps on slightly different grounds. Lynch v. Crosby, 134 Mass. 313. Otherwise, apparently, in Canada, Rex v. Kehr, 11 Ont. L. 517; 5 Ann. Cas. 612. See, also, 24 R. C. L. 711 note 16.. The civil remedy is, of course, in an action of trespass for property. 35 Cyc. 1274: Lane v. Pennsylvania Railroad Co., 78 N. J. Law 672, and under section 30 of the act, certain unlawful acts in making a seizure are criminal. In a case where indictment had been found and the property had been seized without warrant, the Middlesex oyer ordered it returned. State v. Condon, 40 N. J. L. J. 293. But in at least two aspects that case is not in point. There is no indictment; and there is a warrant.

We are clear that investigation into the propriety of tills seizure must be held, at least in the first instance, by the magistrate that issued the warrant. Whether, in case of an adverse decision by him. a direct review is provided by law, and if so, what that method of review is, are questions which we should not attempt to decide at this time.

The result is that the present rule to show cause must be discharged.