text:
    EDWARD STRANG, MINOR, ETC., AND ANOTHER, PLAINTIFFS-RESPONDENTS, v. SOUTH JERSEY BROADCASTING COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 15, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Gene R. Mariano argued the cause for the respondents.

      Mr. S. P. McCord, Jr., argued the cause for the appellant (Messrs. Starr, Summerill & Davis, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

Should the defendant’s motion for a directed verdict have been granted? The motion was made and denied when the plaintiff rested. Thereupon the defendant, without presenting any evidence, also rested, and soon the jury returned a verdict for the plaintiff in a very substantial sum.

The defendant owned a tract of 15 acres of land on Mt. Ephraim Avenue, close to the intersection with Olympia Road in Camden. There it had a broadcasting tower and a small administration building, but most of the tract was vacant land. On January 15, 1949, a Saturday, the defendant’s janitor took waste paper and trash from the administration building and set it afire on the ground about 30 feet from the building. He then went back into the building to attend to other chores. Fifteen minutes or so later he heard screams and, running out, found the infant plaintiff by the bonfire, with his clothes burning. The question that the court left to the jury was whether the defendant was liable for the injury to the child.

The defendant’s land was unfenced and was commonly used by small boys living in the neighborhood as a playground, without objection by defendant. The janitor knew that boys often played on the property not far from where he set the fire, but he saw none around when he started the fire. The fire was a small one — described by one witness as about two feet in diameter. The Strang family, including the infant plaintiff, who was then six years old, lived in their home on Olympia Road, facing the defendant’s propertjr and separated from it by only the road and by vacant lots about 100 feet deep. The neighborhood is “thickly populated.” Let us now turn to the law.

A landowner who invites another to come upon the premises, must use reasonable care to have his premises in a safe condition; but the landowner’s only duty to a licensee or a trespasser is to abstain from acts willfully injurious. Such is the general rule. Phillips v. Library Co., 55 N. J. L. 307 (E. & A. 1893). The rule was applied in the.first of the turntable cases to come before our highest court, D. L. & W. R. R. Co. v. Reich, 61 N. J. L. 635 (E. & A. 1898), where it was held that one who places upon his land something which is of a character attractive to children and at the same time dangerous to them, does not thereby become chargeable with the duty of using care to keep them off the premises, or to protect them if they enter. The repudiation of the dangerous attraction doctrine was reiterated in Friedman v. Snare & Triest Co., 71 N. J. L. 605 (E. & A. 1905).

Fifteen years later came Piraccini v. Director General, 95 N. J. L. 114 (E. & A. 1920). Defendant company had set fire to the grass on its land in order to clear it off, and a five-year-old child was burned to death. In an action under the Death Act, a verdict was directed for the defendant. The Court of Errors and Appeals reversed, holding that it was immaterial whether or not the child was on the company’s property by invitation; that liability grew out of defendant’s responsibility for a dangerous agency — fire. The test of liability was said to be whether injury to one of the class of which decedent was one, ought reasonably to have been anticipated. Holding that the child was such a one, the court pointed out that the fire was set “in the midst of a populous city, near a path frequented by the public fox many yeaxs with the acquiescence of the railroad company, and frequented by school children; near also to land significantly called ‘Playground.’” Most of the cases cited by Justice Swayze, who wrote the opinion for the court, are illustrated by Van Winkle v. American Steam Boiler Co., 52 N. J. L. 240 (Sup. Ct. 1890), and follow the rule that one who keeps a dangerous agency on his property must exercise great care to prevent its escape. They do not deal with the duty of a landowner to a licensee or trespasser. Two of the cited cases went further. Guinn v. Del. Atl. Tel. Co., 72 N. J. L. 276 (E. & A. 1905), held the defendant liable for death caused by a broken, highly charged wire, although decedent, at the time of contact, was a licensee or trespasser on land of a third person — but not on land of defendant. “The ease differs from one where a trespasser or licensee seeks to recover of the landowner. A landowner may in fact reasonably anticipate an invasion of his property, but in law lie is entitled to assume that he will not be interfered with. His right to protect his possession and to use his property is paramount. It is these considerations which led this court to deny the liability of the defendant in the turntable cases. (Citations.) The general rule is that a person is liable for those results of his negligence which are reasonaby to be anticipated; the exemption of the landowner from liability as to trespassers and licensees is necessary to secure him the beneficial use of his land, but no reason exists for extending this exemption to the case where the rights of the defendant have not been interfered with.”

Meyer v. Benton, 74 N. J. L. 533 (E. & A. 1906), was similar to the last case in that the accident occurred on property of a third person. The defendant was exonerated because of lack of proof that the presence of children at play should have been anticipated.

The exemption of the landowner, mentioned in the Guinn case, yields in Piraccini to the duty of care for a child, even though he be a trespasser, whose injury by the dangerous instrumentality, if care be not exercised by the landowner, ought to be foreseen.

Several more recent decisions have noticed Piraccini v. Director General. In France v. L. V. R. Co., 96 N. J. L. 25 (Sup. Ct. 1920), Justice Swayze, after observing that injury to a mere trespasser need not be anticipated, said that “a broader rule of liability where the defendant is dealing with a highly dangerous agency,” had been approved in the Piraccini case. “But the fundamental qrtestion is, Ought injury to the plaintiff to be reasonably anticipated?” Neff v. Daniel, 102 N. J. L. 422 (E. & A. 1925), dealing with a dangerous acid, held that there might be a recovery based on defendant’s negligence if “what the child did was what a prudent man, knowing what defendant knew, would reasonably expect it might do as a result of such negligence,” and said that Piraccini applied that principle. In Spenzierato v. Our Lady, etc., Society, 112 N. J. L. 93 (E. & A. 1934), the court, affirming a judgment for the plaintiff, said that in the Piraccini “case as here an infant child was playing on property of the defendant commonly used as a playground by children. This fact was known or ought to have been known to the defendant in both cases. In both cases, a highly dangerous instrument was used; in the one case, fire; in the other, explosive bombs.” The court added significantly that while the rejection of the attractive nuisance doctrine “has found place in our jurisprudence, the principle is not to be extended beyond its strict limitations.” Lastly, in Scamporino v. Chapman Chevrolet Co., 132 N. J. L. 302 (Sup. Ct. 1944), it is said that in the dangerous agency cases, liability is based on a failure to exercise a reasonable foresight that the negligent act may cause injury.

The rule that no duty is owed to a licensee, though he be an infant, except to refrain from willful harm, was reiterated, however, in Faggioni v. Weiss, 99 N. J. L. 157 (E. & A. 1923); Miller v. Schmidt, 100 N. J. L. 324 (E. & A. 1924); and Kaproli v. C. R. R. Co., 105 N. J. L. 225 (E. & A. 1928). In the first of these, a twelve-year-old boy was permitted to ride on defendant’s automobile; in the second, a child of eight, chased from defendant’s property, ran in front of a street car and was killed; and in the last case a four-year-old infant, attempting to climb upon a moving freight ear, fell under the ear. The first two eases are readily distinguishable from Piraccini v. Director General of Railroads, since the defendants were not maintaining any dangerous agency. Kaproli is closer, for moving railroad trains are highly dangerous, and the defendant was aware of the children’s habit to play about the tracks and to clamber over the cars. The true distinction, perhaps, is found in the impracticability of guarding a railroad system against the small invaders.

Decisions from other jurisdictions on liability for injuries received by children, caused by fire, are collected in 36 A. L. R. 297.

We consider that New Jersey still adheres to the view that although the dangerous agency, the turntable, is attractive to children, yet it does not constitute notice to the landowner that they will come on Ms land and are apt to bo hurt. But if habitually they do come to play upon his land and the landowner has notice of the fact, then he owes to them a duty which, perhaps, may be regarded as an extension of the old obligation to refrain from intentional injury. Compare the "playground doctrine,” 65 C. J. S., Negl., § 40, p. 505; Altenbach v. L. V. R. Co., 37 A. 2d 429 (Pa. 1944). The New Jersey rule seems to be in substantial accord with the Restatement, Torts, § 339.

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which lie maintains upon the land, if
“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming witliin the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”

It may be questioned whether a small bonfire is highly dangerous to children' — or involves “an unreasonable risk of death or serious bodily harm to them.” While that seems to us a question for the jury, we may observe that in most cases growing out of fires, the victim’s clothing has caught fire. The temptation to play with a fire and hence the danger may be greater if the fire is small than if it is great and terrifying. Whether a prudent man would have set the fire and left it unattended, as was done in this case, was also for the jury. “The likelihood that the act will cause injury to another; * * * the utility of the act itself; the feasibility of a substitution whereby the same benefits may be obtained at less hazard, — all these considerations enter into the question of what is reasonable care.” Smith v. Okerson, 8 N. J. Super. 560 (Ch. Div. 1950).

We find no error in the denial of defendant’s motion for a directed verdict. Scarano v. Lindale, 121 N. J. L. 549 (E. & A. 1939). The judgment is therefore affirmed with costs.


source: Caselaw Access Project

author: Jacobs, S. J. A. D.

license: Public Domain

text:
    JAMES HEALING COMPANY, A CORPORATION, PLAINTIFFAPPELLANT, v. GUSTAVE WALTER AND GERTA WALTER, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF G. WALTER MACHINE COMPANY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950
    Decided December 15, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph Keane argued the cause for the appellant (Messrs. Milton, McNulty & Augelli, attorneys).

      Mr. Jacob E. Max argued the cause for the respondents (Mr. Bernard Chazen, on the brief).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The plaintiff appeals from a judgment of dismissal of its action against the defendants for breach of warranty, entered in the Hudson County District Court at the close of its case.

In September, 1948, the plaintiff's 90-foot lighter “Eugene Healing” developed difficulty with its reduction gear box and plaintiff communicated with the defendants who conduct a marine machine shop in Jersey City. Under date of September 15, 1948, the defendants addressed a letter to the plaintiff which set forth that, relative to verbal discussions “regarding complete overhauling of reduction gear,” the defendants are pleased to quote the price of $710 for the overhauling of the gear box consisting of one new pinion, one new gear, new ball bearings, new oil seals “and any other machine work required on other parts to bring this gear box into first class condition,” it being understood that all parts will be made from the finest materials and according to approved practices for marine gearing. The letter contained a separate paragraph which stated that “We guarantee this gear box unconditionally for one years service.”

Pursuant to this letter, supplemented by another dated October 19, 1948, the reduction gear box, which is a unit within itself, was removed from the plaintiff's lighter and delivered to the defendants for overhauling. Upon completion of their work the gear box was returned to the plaintiff and was installed in the lighter by Ira S. Bushey & Sons, Inc. The lighter was then put into operation and the gear box apparently functioned in normal fashion until April 21, 1949, when Captain Stanton, employed by the plaintiff, received a call that there was a broken bearing housing in the reduction gear box. He ordered the lighter into Ira S. Bushey & Sons, Inc., Dry Dock, Brooklyn, New York, and notified the defendants. He testified that the defendants told him that he liad better have the repair to the reduction gear box made by Ira S. Bushev & Sons, Inc., and he did so. Commander Hansen, an employee of Ira S. Bushey & Sons, Inc., testified that while the lighter was in dry dock he removed the cover of the reduction gear box and saw the broken bearing housing, and after the necessary repair was made the box was again installed in the lighter. In response to an inquiry from the District Court, Captain Stanton stated that he did not know why or in what manner the ball bearing housing was defective but that it must have been defective because it had broken. At the close of the plaintiff’s case the defendants moved to dismiss on the ground that the plaintiff had failed to show in what respect the bearing housing was defective, and had failed to exclude other causes for breakage. The motion was granted and the plaintiff’s appeal is from the ensuing judgment.

The plaintiff contends that the defendants’ agreement embodied a warranty of proper performance for one year; on the other hand, the defendants contend that their agreement embodied a warranty of workmanship and materials for the stated period and nothing more. We accept the plaintiff’s construction of the agreement. It was not simply a contract to make specified repairs in workmanlike fashion Avith proper material. It Avas a complete overhauling job with an undertaking to do such machine Avork on all parts as might be required to bring the gear box “into first class condition” and Avas accompanied by the express and unconditional guarantee “for one years seiwice” upon which the plaintiff relied. It seems to us that the unconditional giiarantee was intended to afford protection to the plaintiff in the event that within the stipulated period the reduction gear box failed in the performance contemplated by the parties. And where, as here, there Avas evidence from which it could reasonably be inferred that Avhile the reduction gear box was functioning normally in the customary operation of the lighter it suddenly and without apparent cause failed with a broken bearing housing, the plaintiff was entitled to call upon the defendants for their defense without additional proof as to the particular defect which caused the failure. Cf. Industrial Sales Engineering Co. v. Agisim, 7 N. J. Misc. 648, 650 (Sup. Ct. 1929), where the court expressed the view that “If there is a guarantee of performance and the thing does not perform, it is sufficient for the guaranteed party to show that in the first instance without being required to explain why it does not perform.”

We have concluded that the motion to dismiss at the close óf the plaintiffs case on the ground that the plaintiff had failed affirmatively to establish the particular defect which caused the breakdown or exclude the possibility of causes unrelated to the mechanism was ill-founded and the judgment entered below should be reversed.

Reversed and a new trial ordered, costs to abide the event thereof.


author: Francis, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ISADORE EISENSTEIN, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. RICHARD F. POWELL, DEFENDANT.
    Essex County Court Law Division
    Decided November 20, 1950.

      Mr. Edward Gaulkin, for the State of New Jersey.

      Mr. John E. Toolan, for the defendant Isadore Eisenstein.

      Mr. Samuel I. Kessler, for the defendant Richard F. Powell.
   Francis, J. C. C.

The defendants Eisenstein and Powell were indicted by the Essex County Grand Jury under R. S. 2:157-4 for false swearing. Two such indictments were returned against Eisenstein, and one against Powell. Both defendants have moved to dismiss the indictments on the grounds that: (1) they do not charge the commission of any crime; (2) the two of them which are drawn so as to take advantage of R. S. 2:157-5 do not set forth such clearly contradictory statements as to justify the charge of false swearing; (3) they are vague and uncertain; and (4) they do not set forth facts to show that the notary public named therein was authorized to administer the oath to the defendants and was acting within his authority in so doing.

So far as the last ground urged (4) is concerned the indictments follow the language of the statute. The act says that any person who shall willfully swear falsely "before any person authorized by virtue of any provision of law of this state to administer an oath and acting within his authority” shall be guilty of false swearing. The indictments recite these words almost verbatim, and consequently are sufficient to withstand an attack based upon the failure to allege the details of the notary’s authority and the facts showing that he acted within his authority. (State v. Harris, 132 N. J. L. 54 (Sup. Ct. 1944); State v. Joseph L. Sigretto & Sons, 127 N. J. L. 578, 581 (Sup. Ct. 1942); State v. Ellenstein, 121 N. J. L. 304, 325 (Sup. Ct. 1938)). If the details are desired by the defendants avenues of discovery are open to them. (State v. Sigretto, supra, p. 581; Rule 2:4-14.)

The first three grounds can be considered as one. Basically the contention is that the statements in the three counts of one of the Eisenstein indictments, and in the single count in the Powell indictment, are not so “unequivocally contrary” “that the utterance of the one required the immediate negation of the other.”

All three of the cases referred to above proclaim the doctrine that an indictment will not be dismissed except or. the “clearest and plainest ground.” Likewise they set down the test of validity to be whether or not it sets forth “with reasonable certainty all of the facts necessary to render the offense j udici ally a p parent.”

In applying the test here an examination must be made of the specific testimony given by the defendants on the different occasions to determine if they appear sufficiently opposed to each other to “render the offense judicially apparent.”

In the first count of indictment Ho. 475 against Eisenstein a number of inconsistencies appear in his two testimonial utterances with respect to a certain check. On July 24, 1950, Eisenstein swore that one F. Baxter, who he thought lived in Fairdale, Delaware, is a producer, presumably of milk, and that he gave Baxter a check for $253.69 for milk. He cashed this check for Baxter. Then he said that one Sylvia Gray gave him some cash and he gave her the check.

On August 16, 1950, he swore that Baxter was a carpenter and builder in Long Branch, Hew Jersey, and that he worked for Sylvia Gray. On being shown the same check bearing endorsements ostensibly made by F. Baxter and Sylvia Gray and asked what Sylvia Gray “got the money for” he said “I liked her looks, that is why I gave it to her.”

Further, the plain conclusion from the first testimony about cashing the check for Baxter is that it was endorsed by him. However, on. the second occasion Eisenstein said he endorsed Baxter’s name on it.

Was Baxter a milk producer or did he work for Sylvia Gray? Was he a milk producer or a carpenter and builder? If he was a carpenter and builder and worked for her or worked for her in some other capacity was he given $253.69 for milk ? Did Sylvia Gray come into possession of this check because Eisenstein cashed it for Baxter with money he obtained from her, and then turned it over to her, or did he give the check to her because he liked her looks ? If the latter statement was intended to be humorous or contemptuous of the questioner the setting in the indictment gives it a more serious connotation. Who endorsed this check' — Baxter or Eisenstein ?

The recitation of these inconsistencies is sufficient to describe and to charge the offense of false swearing under the first count of the indictment.

The second count was conceded at the argument of the motion to contain an adequate charge of false swearing.

The third count relates primarily to assertions with relation to another check for $1,237.80. It was dated June 23, 1950, and drawn to Malta Heating & Plumbing Company. On July 24, 1950, Eisenstein said it was for work done at his plant in Milton, Delaware. The plain implication is that the full sum was for such work. However, on August 16, 1950, he said that he cashed the check and gave some of the money to Malta Heating & Plumbing Company. This was done because “he did some work for me and he got some of that money * * The inconsistency thus apparent is sufficient to sustain the indictment.

The second false swearing indictment sets forth certain testimony he gave under oath on July 24, 1950, with respect to a certain telephone call and conversation had therein. Then it is charged clearly and unequivocally that no such telephone call took place and that no such conversation ever occurred during any such telephone call. The violation of the statute is clearly spelled out.

The Powell indictment sets forth two rather substantial portions of his testimony given on different occasions. Study and comparison make it obvious that an inconsistency exists and seemingly a willful one. On July 18, 1950, the basic inquiry related to the selection of certain dairies for inspection and to the person who made the selection. "While the reference was to a paper list, designated S-2, the question manifestly related to the dairies appearing therein and to the source of their selection for inspection. Powell’s answers were designed to establish that a Mr. Connolly made the selection but more particularly that the defendant Goodman (in the conspiracy indictments) had no hand in it.

On the later date, October 5, 1950, he plainly indicated that Goodman was the active force in the designation of the dairies to be inspected.

It is argued that the prosecutor’s effort is to confuse the physical paper S-2 with the contents thereof and that Powell was truthful when lie said he did not receive S-2 or other paper containing a list of dairies from Goodman. And it is contended that because the prosecutor may have been thinking in terms of contents of lists as distinguished from the paper S-2 itself, he. has as mistaken an impression of the answers as Powell had or may have had of the questions. If this is so such explanation may be made at the trial. At this time there glares through the statements on the one occasion that Goodman was free from participation in the selection of the dairies and that he had an active hand in it on the other. Such inconsistency renders the indictment adequate.

Under the circumstances all motions addressed to these three indictments will be denied.


author: Conlon, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. LOUIS F. GUILLOTTE, DEFENDANT.
    Essex County Court Law Division
    Decided December 7, 1950.

      Mr. Richard J. Congleton, County Prosecutor (Mr. Edward Schoen, Jr., appearing), for the State.

      Messrs. Rothbard, Harris & Oxfeld (Mr. Emil Oxfeld appearing), for the defendant.
   Conlon, J. C. C.

Defendant appeals from a conviction for violation of R. S. 2:202-7 in that he “did obstruct and interfere with persons lawfully being in and upon a public street, to wit Broad and Market Streets, Newark, N. J.”

A trial de novo was had at which the only witnesses were the arresting officer for the State and the defendant for himself. The testimony warrants the finding beyond a reasonable doubt of the following facts:

On Saturday afternoon, October 7, I960, at about 5 :30 p. m., the defendant was observed by the police officer in about the middle of the intersecting sidewalks at the northeast corner of Market and Broad Streets in the City of Newark, distributing leaflets. The intersection both as to pedestrian and vehicular traffic was controlled by lights. There is a bus stop on the north side of Market Street at the intersection. There was heavy pedestrian travel in all directions at the corner. The defendant was moving about in order to distribute the leaflets to the extent that he was interfering with the already congested travel. A large quantity of the leaflets were lying on the sidewalk where they had been thrown by persons to whom the defendant had handed them. He was asked by the police officer to move to some other place and upon his refusal was arrested. These facts are sufficient to warrant a conclusion of a violation of the statute in question.

The defendant, besides denying that he unlawfully obstructed the area, insisted that he was arrested for distributing leaflets which seemed to be objectionable to the arresting officer. The right of a person to disseminate leaflets on the public streets is not involved. That right did not include the right unlawfully to obstruct and interfere with pedestrian travel on one of the busiest corners in the State at a time of day when congestion was at its peak.

The defendant is found guilty and sentence is suspended as it was in the Municipal Court. Costs of this appeal will be taxed.


text:
    JOSEPH PROCOPIO, PETITIONER-RESPONDENT, v. FOSS & VOIGHT, INC., RESPONDENT-APPELLANT.
    Essex County Court Law Division
    Decided December 11, 1950.

      Mr. Gerald Foley (Mr. Francis Forman appearing), for the respondent-appellant.

      Mr. Carl F. Nitto (Mr. Joseph P. Piscopo appearing), for the petitioner-respondent.
   Conlon, J. C. C.

This is an appeal from an award to the petitioner for temporary and permanent disability. Appellant seeks a reversal on two grounds: (1) that the relationship of employer and employee did not exist between the parties, and (2) that the award of 20% of total permanent disability was excessive. The second ground is without merit since the determination of the Deputy Director in that respect is amply justified from the record.

The question whether the employer-employee relationship existed presents a more difficult problem. The facts, in the main, are not in dispute and may be stated as follows:

Respondent is a distributor of linoleum and other materials. Petitioner had been engaged for some time before the accident in delivering merchandise for the respondent. Tie owned bis truck and was compensated on the basis of the tonnage he handled — $7 a ton in New Jersey, and $9 a ton in New York. At times he employed a helper. He was not carried on respondent’s payroll and no social security deductions were taken from his compensation. Each morning the petitioner reported at respondent’s warehouse and there picked up the day’s deliveries. The load was carried to the tailboard of his truck by employees of the respondent and there transferred to the truck by the petitioner with the assistance at times of his brother, and at other times of employees of respondent. He would then deliver the load and return to his home. He was never paid for overtime. The respondent’s employees saw to it that the last items to be delivered were loaded first and the first items to be delivered were loaded last. Petitioner sustained a herniated disc injury in his back while in the process of lifting a roll of linoleum from his truck.

The above are essentially the facts considered by the Deputy Director of the Bureau in concluding that an employer-employee relationship existed. However, a reading of the record discloses the additional fact that petitioner operated not one but two trucks, when the quantum of deliveries required. Julian Eoss, the president of the respondent corporation, testified as a witness for the petitioner as follows: “Q. Can you tell us, if you know, the number of trucks which he (the petitioner) used in that work? A. Most of the time he used one, but he had a smaller truck that he used if he were busier.” No attempt was made to controvert this statement. The petitioner stated that he and his brother worked “a lot together” and also that he worked alone “when there wasn’t enough work for two men” because then “there is no percentage.” Petitioner, throughout a major part of his testimony, spoke of “us” and “we” in referring to the carrying out of the arrangement with the respondent and undoubtedly meant those words to include his brother and himself. It must be concluded that the petitioner operated not one but two trucks, and that the second truck was driven by his brother before the accident. This phase of the evidence does not appear to have been considered by the Bureau although it has considerable bearing on the question as to whether or not an employer-employee relationship existed. After the accident petitioner continued his trucking operations for the respondent by having his brother operate a truck and going along “just to kill the day.” When the work required, the petitioner at his own expense and without being ordered to do so, hired a helper to assist his brother make deliveries. There is no evidence that the brother ever had any contractual or other arrangement with the respondent or that he was ever considered to be one of respondent’s employees. There was no written or verbal agreement between the parties as to their relationship. The petitioner testified: “We didn’t have no arrangement, no nothing.” Therefore the relationship must be determined from the actions of the parties.

Onr courts continuously have given a liberal construction to the Compensation Act in concluding that an employer-employee relationship exists in situations similar to the'one here presented. The general rule established is that where the respondent retains control over the conduct of the petitioner in prescribing the manner in which the work is performed the theory of independent contractor is ruled out.

Consideration has been given to the following cases presented by counsel in their arguments and briefs: Busch v. Seaboard By-Product Coke Co., 100 N. J. L. 304 (E. & A. 1924); Burdick v. Liberty Motor Freight Lines, 128 N. J. L. 229 (Sup. Ct. 1942); Cappadonna v. Passaic Motors, Inc., 136 N. J. L. 299 (Sup. Ct. 1947); affirmed, 137 N. J. L. 661 (E. & A. 1948); Geary v. Simon Dairy Products Co., 7 N. J. Super. 88 (App. Div. 1950); Mayo v. Hunt’s Theatres, 1 N. J. Super. 8 (App. Div. 1948); and American Carrier Corp. v. Avigliano, 123 N. J. L. 490 (Sup. Ct. 1939). An examination thereof discloses the extent to which our courts have gone in deciding that an employer-employee relationship exists where the alleged employee operates a truck in connection with the employer’s business. The case most analogous in its facts to the case sub judice is American Carrier Oorp. v. Avigliano, supra, in which the following situation was presented. Respondent transported freight by motor vehicles between Newark, New York and Pennsylvania. It advertised in a newspaper “Truckmen wanted: guaranteed to earn $40 per week; must be able to purchase their own truck from us,” &c. While the terms of employment mentioned a weekly salary of $40 it appears that petitioner’s deceased was to be paid at the rate of $3.60 a ton for freight delivered to Scranton and $4 a ton to Binghamton. The deceased purchased his truck from respondent on a conditional sales contract and operated in the name of the respondent since he could not operate in his own name under the interstate commerce rules. Apart from the destination no other instructions were given. The respondent loaded the truck by their employees and sent an employee along with the deceased. The Supreme Court decided that while “the question is a somewhat close one” the evidence established such control over the conduct of the deceased doing his work as to negative the theory, of independent contractor. The court distinguished the facts before it from the case of Busch v. Seaboard By-Product Coke Co., supra (not a compensation case), in that in the Busch case the truckman employed the driver and helper and was not himself operating the truck at the time of the accident.

The present case also is distinguishable. The arrangement between the parties was clearly inconsistent with an employer-employee relationship. It is apparent that petitioner was paid for the trucking he did and not for his own services. The respondent had no control over what truck he used or how he operated it. It paid for the tonnage transported regardless of who actually drove the truck. There is no contention that petitioner’s brother, the other member of the “we,” so often referred to by the petitioner, had any connection with the respondent. The brother was compensated by petitioner and not by the respondent. The respondent never sent any of its employees along on the trucks nor was petitioner required to purchase the trucks from the respondent. After the accident the arrangement continued unchanged between the parties even though the work previously performed by the petitioner then was taken over by his brother. The evidence negatives any employer-employee relationship between the parties and establishes the petitioner as an independent contractor.

The determination of the Bureau is reversed and the petition is dismissed.

A determination in accordance with this memorandum should be presented on notice.


author: Drewen, J. C. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARLENE ADAMS, DEFENDANT-APPELLANT.
    Hudson County Court Law Division
    Decided December 11, 1950.

      Mr. Horace K. Roberson, County Prosecutor (Mr. Cecil T. Woolsey, Assistant County Prosecutor, of counsel), for the State of New Jersey.

      Mr. Edward Madden, for defendant-appellant.
   Drewen, J. C. C.

Appellant was convicted in the Kearny Magistrate’s Court of certain motor vehicle violations. The jurisdiction of that court was challenged on the ground that the Juvenile and Domestic Relations Court has exclusive cognizance of the case. The same challenge is made here and the present motion to dismiss, based thereon, is being disposed of without a hearing of the case de novo in accordance with the normal procedure.

The charges against appellant are specifically (a) operation of motor vehicle on a learner’s permit while not in the company of a motor vehicle driver of this State; (b) operation of a motor vehicle without the owner’s permission; and (c) unlawfully leaving the scene of an accident. (R. S. 39:3-13.; 39:4-48; 39:4-129.)

It is stipulated that at the time of the alleged offense appellant was 17 years of age and that'she was then the holder of a learner’s permit theretofore issued to her by the motor vehicle authority (R. S. 39:3-13).

The challenge to the jurisdiction is based on the provisions of R. S. 9:18-12 as amended: “The commission of an act which constitutes a violation of the provisions of chapters three or four of Title 39, Motor Yehicles, of the Revised Statutes, or of any supplement thereof, by a child of or over the age of seventeen years, who is the holder of a valid license to operate a motor vehicle under the laws of this or any other State, shall not constitute juvenile delinquency as defined in this section.” This provision marks an exception to the jurisdiction of the Juvenile and Domestic Relations Court in the case of charges like those presently in question against persons within the stated age limit. If, therefore, the appellant as holder of a learner’s permit can be said within the terms of the quoted section to be “the holder of a valid license to operate a motor vehicle under the laws of this State,” this court has jurisdiction, otherwise not.

The statute governing the issuance of a learner’s permit (R. 8. 39:3-13) provides that the Commissioner may issue such permit in his discretion “to a person over seventeen years of agethe permit shall be for a specified period of not more than 30 days and its effect is to allow “such person, for the purpose of fitting himself to become a motor vehicle driver or a motor cycle operator, to operate a motor vehicle or motor C3rcle for a specified period of not more than thirty days, while in the company and under the supervision of a licensed motor vehicle driver.” The statute further provides that “The permit shall be sufficient license for the person to operate a motor vehicle or motor cycle in this State during the period specified, while in the company of and under the control of a licensed motor vehicle driver of this State.” There is the further proviso that “No examination for a driver’s license shall be given unless the applicant has first secured a learner’s permit.”

There can be no doubt, it seems to me, that the unqualified and definitive driver’s license had in view by the statute abridging the Juvenile Court jurisdiction is a different thing in kind from the conditional and circumscribed learner’s permit contemplated by R. 8. 39 :3-13. The learner’s permit requires no prior examination. It is issued virtually pro form,a and as matter of course. .Tt is simply part of the scheme to regulate the training of candidates preliminary to the test of eligibility and fitness for the obtaining of “a valid license to operate a motor vehicle.” The very fact that one asks for and obtains a learner’s permit in itself shows that he is not the holder of a valid license to operate” such vehicle. It is not to be supposed, moreover, that the Juvenile and Domestic Relations Court jurisdiction is intended to be withdrawn from juveniles charged with motor vehicle violations, when the operation was “under the control” of another, that is, of a licensed motor vehicle driver of this State, as the statute requires.

Upon the oral argument the Assistant Prosecutor urged that the words “holder of a valid license to operate a motor vehicle under the laws of this or any other State,” as they occur in the quoted section from R. S. 9 :18-12, are so inclusive as to embrace a learner’s permit as well. I find that proposition untenable. There is nothing to support it. Reasonableness in the legislative policy, the obvious effect of the relevant provisions, reading them together, and the application of plain common sense are all against the State’s contention, it seems to me.

I hold that this court and the court below are alike without jurisdiction in the premises. Appellant’s motion is granted.


author: Jayne, J. A. D.

text:
    LILLIAN ANNA SWANSON, PLAINTIFF, v. ERIC NORMAN SWANSON, DEFENDANT. On appeal from convictions of criminal contempt of Lillian Anna Swanson and John De Diminicantanio.
    Superior Court of New Jersey Appellate Division
    Argued October 2, 1950
    Decided November 2, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Abraham, J. Slurzberg argued the cause for appellants (Mr. Joseph Persky, attorney).

      Mr. Louis Santorf argued the cause as prosecutor for the court.
   The opinion of the court was delivered by

Jayne, J. A. D.

A concise chronological narrative of some of the material antecedent events will serve to display the background which occasioned the proceedings under review.

On September 2, 1949, one of the appellants, Lillian Swanson, instituted a civil action in the Chancery Division of the Superior Court seeking a judgment of absolute divorce from her husband on the ground of desertion. She alleged in her complaint that at the time of the desertion she was a bona fide resident of the State of New Jersey and had been ever since the cause of action arose and for more than two years next preceding the commencement of the action.

Parenthetically, it seems evident that she subscribed to the conventional affidavits acompanying the original and amended complaints and to an affidavit of inquiry but never personally appeared before the notary whose signature purported to give authenticity to the jurats.

At the final hearing before the Advisory Master to whom the cause was assigned, she and the other appellant, John De Diminicantanio, hereinafter designated as John De, testified that she had resided in the dwelling of John De at No. 1394 Ringwood Avenue, Haskell, Passaic County, New Jersey, continuously since June, 1946. There was also testimony relating to the employment of her husband by John De and to the school attended by her children, which was designed to bolster the proof of residence.

Evidently certain features of the presentation of the testimony aroused the suspicions of the Master, and he caused an investigation to be pursued which tended to confirm the conjectural apprehension of willful false swearing.

Pursuant to an order of the Superior Court conferring upon him, the authority to conduct the prosecution, Louis Santorf, a counsellor-at-law, on March 15, 1950, filed a petition in the still pending matrimonial cause charging the appellants and one Eleanor Algozina respectively in three separate counts with criminal contempt of court. Whereupon, upon the advice of the Advisory Master, an order issued out of the Superior Court on March 15, 1950, addressed to the three accused directing them to show cause “before this court at the Chancery Chambers, Administration Building, No. 63 Hamilton Street, Paterson, New Jersey, on Tuesday the 28th day of March, next, at 10:00 o’clock in the forenoon or soon thereafter as the court may attend to the same why they, or each of them, should not be adjudged guilty of contempt of this court, criminal in nature, in that they made false, untrue and perjured statements, under oath, in the proceedings held by this court in the above entitled matter, and for the filing of false and improper pleadings and affidavits in such cause.”

Copies of the petition and order were served upon John De and Eleanor Algozina personally within the State, but the service was made upon Mrs. Swanson in the State of New York.

At the inception of the hearing before the Advisory Master on March 28, 1950, a severance of the prosecutions was granted on the application of Mr. Santorf. The hearing of the charge against Eleanor Algozina was adjourned. The trial of Mrs. Swanson was thereupon moved.

Counsel for Mrs. Swanson, announcing that his appearance and that of his client was special and qualified, initially presented several motions of a jurisdictional pertinence to one of which specific reference will be hereinafter made. 11 e subsequently interposed most of the same objections on behalf of John I)e, whose trial immediately followed. The motions were denied, and the Master advised the entry of a judgment adjudging the present appellants guilty and that Mrs. Swanson be sentenced to serve a term of imprisonment of sixty days in the common jail of Passaic County, and John De be given a sentence of thirty days. Such judgments were accordingly entered by a judge of the Superior Court.

Counsel has marshalled eleven points in his studiously prepared brief. However, we are obliged to remark at the outset that several of the points so well devised have been adjudicated in the very deliberative opinion rendered by Vice-Chancellor Berry in In re Caruba, 139 N. J. Eq. 404, 51 A. 2d 446 (Ch. 1947); affirmed, 140 N. J. Eq. 563, 55 A. 2d 289 (E. & A. 1947), and in the decision recently filed in Zimmerman v. Zimmerman, 12 N. J. Super. 61 (App. Div. 1950), relating to cognate questions which have arisen in view of the transformed court structure erected by the new Constitution.

The subjects embraced by those decisions pertain to (a) the power and authority of an Advisory Master to hear and advise the judgment to be entered in a contempt proceeding; (b) whether perjury or false swearing by a witness before a Master in a cause in Chancery constitutes contempt and whether punishment therefor may be lawfully imposed; (e) whether an actual obstruction of the administration of justice is essential to the offense; (d) the inherent power of Chancery independent of statutory authority; (e) the power of the Legislature to impair the inherent jurisdiction of Chancery; (f) whether contempt either civil or criminal may now be lawfully prosecuted in the action in which it occurs,, Buie 3:80-2; and (g) the nature and scope of an appeal to the Appellate Division of the Superior Court.

The former opinion in the Garuba case having been affirmed by the Court of Errors and Appeals, and the latter in the Zimmerman case being a decision of this court, a reproduction here of the determinations lucidly expressed in those precedents would be conspicuously redundant, and an undertaking by this court to remodel them would be. inexcusably presumptuous.

We accordingly regard them as decisive of the points to which they relate, many of which are sought to bo projected anew in the argument of the present appeals.

The separate trials of the appellants under materially divergent circumstances oblige us to deal with each- conviction independently.

The ground of appeal among those assigned on behalf of the appellant Mrs. Swanson, which predominantly engages our attention, is that in the proceedings against her the court lacked jurisdiction of the person of the accused.

It is to be immediatety acknowledged that (a) Mrs. Swanson invoked the jurisdiction of our Superior Court in quest of a judgment of divorce; (b) that the matrimonial action remains undetermined and undismissed; (c) that the petition and order to show cause are entitled in the main action; (d) that the petition and order to show cause in the contempt proceeding were not served upon Mrs. Swanson within the State; (e) that Mrs. Swanson was personalty present at the hearing before the Master; and (f) that the judgment embodies a sentence of imprisonment.

' It is fundamentally imperative in the consideration of these appeals to recognize the significant distinction between civil and criminal contempts.

A civil contempt proceeding is essentially remedial. Its usual object is to coerce a party for the benefit of another party to do or refrain from doing some act specified in the order of the court. And so, if imprisonment be ordered, it is coercive in character but nevertheless remedial in purpose, and to that end relates to something to be obeyed by the accused by the compliance with which he may discharge himself.

Contempts classified as criminal contempts, as the designation itself implies, are dissimilar in that they are intrinsically offenses against organized society. True, they may “occur” in the course of a private litigation and bear that relationship to the civil cause, but basically they raise an issue between the public and the accused. Hence, if imprisonment be imposed in a proceeding for criminal contempt, it is by analogy with the criminal law punitive in its purpose. There are numerous illustrative decisions, a generous supply of which may be found in the footnotes in 12 Am. Jur. 392, § 6. Of our own adjudications it will suffice to cite Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 A. 1042 (Sup. Ct. 1914).

Assuredly Hrs. Swanson and, indeed, John De as well were each charged with the commission of a criminal contempt.

In 1924 Chancellor "Walker very definitely held that although the process may be an order to show cause, yet “such process must be served within this state to lawfully initiate a proceeding against a person charged with criminal contempt of court.” (Emphasis his.) Brown v. Brown, 96 N. J. Eq. 428, 430, 126 A. 36 (Ch. 1924).

In the decision rendered in In re Hayden, 101 N. J. Eq. 361, 139 A. 328 (Ch. 1927), fundamental significance was ascribed to the fact that “the respondent was duly served with the order to show cause.”

The attitude of the special prosecutor toward the respondent's objection to the jurisdiction may be divulged as an incident of the proceeding. He said:

“If your Honor please, in view of the challenge to the jurisdiction of the Court insofar as the service upon Mrs. Swanson is concerned, we must advise the Court that service was had upon Mrs. Swanson personally in the State of New York and there is no question in my mind that we cannot force her to come into the State of New Jersey on that order to show cause. * * * In view of that, we will now move to vacate the order to show cause and issue an order of attachment against the defendant Swanson — she is here — and have her committed to the county jail as provided by the attachment, as provided by the rules. * * *”

The Master, however, chose to overrule the challenge addressed to the jurisdiction, declined to issue the suggested attachment, and proceeded to conduct the hearing.

It seems manifest that the court did not acquire jurisdiction of the person of Mrs. Swanson by due service of the order unless it is supposed that the promulgation of Rule 3 :80-2 transubstantiated criminal contempt. The rule directs that contempts, whether of a civil or criminal nature, “shall be prosecuted in the action in which it occurs.”

We decline to believe that it was intended by means of the adoption of that rule so substantively to catabolize the distinct offense of criminal contempt as to eradicate the primordial divergencies between civil and criminal contempt.

“The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in the courts, is a fundamental one that is part of the daily thinking of judges and lawyers. Substantive law includes much more than legislation, it comprehends also the rights and duties which have come down to us through the common law. * * *

“We therefore conclude that the rule-making power of the Supreme Court is not subject to overriding legislation, but that it is confined to practice, procedure and administration as such.” Winberry v. Salisbury, 5 N. J. 240, 74 A. 2d 406 (1950).

A prosecution for criminal contempt is veritably a criminal trial in which the accused possesses most of the substantial rights of a person accused of crime, among which are the presumption of innocence, the burden of proving the alleged guilt beyond a reasonable doubt and the rules of evidence applicable in the trial of an indictment. In re United Hatters, &c., 110 N. J. Eq. 42, 158 A. 435 (E. & A. 1932); Staley v. South Jersey Realty Co., supra; In re Ries, 101 N. J. Eq. 315, 138 A. 586 (Ch. 1927).

The broad, object oí the new rules is to achieve simplification and uniformity of procedure. Formerly proceedings to punish for criminal contempt were not to be entitled in the cause in which the contempt occurred. To do so, was a fatal defect. Illustrative authorities are cited in Patco Products Co. v. Wilson, 140 N. J. Eq. 91, 53 A. 2d 214 (Ch. 1947).

A similar technical practice related to the entitling of affidavits in applications for a writ of capias or a writ of attachment. The promulgation of Rule 3 :80 — 2, like Rules 3:64-1 and 3:72-1, was intended only to remove those technical and disadvantageous formularies of our former practice.

The mere circumstance that the contempt proceeding is entitled in the divorce suit is of itself of no moment. Compare, Schuster v. Schuster, 9 N. J. Super. 11, 74 A. 2d 420 (App. Div. 1950).

We recognize such a proceeding so analogous to a criminal prosecution as one in personam in which the court can acquire jurisdiction over the accused only by service of process or notice within the State or by the voluntary appearance of the accused. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565 (1877); cf. Elgart v. Mintz, 123 N. J. Eq. 404, 411, 197 A. 747 (Ch. 1938).

Its title or label may now give it the ostensible appearance of a motion or integral component of the action in which the alleged public offense occurred, but the proceeding inaugurated to determine the guilt or innocence of the accused continues in truth and reality to be a new, independent, and collateral matter, certainly in so far as jurisdiction of the person is required to enable the court to impose a sentence of imprisonment. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911); Leman v. Krentler-Arnold Hinge, Last Co., 284 U. S. 448, 76 L. Ed. 389 (1932).

The circumstance that the appellant originally invoked the jurisdiction of the court in quest of a judgment of divorce does not in our judgment confer jurisdiction over her for the purposes of the adverse prosecution against her of the charge of criminal contempt. Both Chief Justice Beasley and Justice Holmes expressed the view that “Persons, by becoming suitors, do not place themselves, for all purposes, under the control of the court.” Munday v. Vail, 34 N. J. L. 418, 422 (Sup. Ct. 1871); Ex parte Indiana Transportation Co., 244 U. S. 456, 61 L. Ed. 1253 (1916).

Along much the same channel of argument anent Rule 3 :80-2 is the proposition that since Mrs. Swanson personally appeared at the hearing and special appearances are now abolished by Rule 3 :12-2, her presence not only constituted a waiver of her objection but subjected her to the jurisdiction of the court.

Here, again, the technology in the art of procedure formerly appeared in the field of special and general appearances. It, too, was called one of the cobwebs of the procedural law. See 69 N. J. L. J. 372 (1946).

In speaking of Federal Court Rule 12 to which our Rule 3 :12-2 is. comparable, Judge Maris remarked that he who appears specially to attack the court’s jurisdiction over him, “is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de lene esse, in order by its magic power to enable himself to remain outside even while he steps within.” Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F. 2d 871, 874 (3d Cir. 1944); cert. den., 64 S. Ct. 1057, 322 U. S. 740, 88 L. Ed. 1573 (1944).

The following excerpts from the record are sufficient to disclose the preliminary objection to jurisdiction promptly announced in the proceeding under consideration:

“The Court: The application for a continuance will be denied, the two main respondents that are present will step forward and enter their pleas.
“Mr. Slurzberg: Before the parties enter their plea, I would like at this time to plead to the jurisdiction of the court. I ask the Court if I may examine the returns of the service in this matter.”

The original petition and order to show cause bearing evidence of the service upon appellant Mrs. Swanson were not at hand. Whereupon her counsel stated:

“We are here in respect to these orders, only in respect to them. We are not answering those until we establish that this Court, has jurisdiction and this Court cannot pass upon jurisdiction until the return is examined and it is established that it was made according to law. * * *
“The grounds — I can’t argue the grounds without having the return before your Honor and your Honor cannot make a premature ruling on something that is not in the record in this matter.
“I will tell you the ground. This Court has no jurisdiction over Miss Swanson in that, as I understand the facts, service of process was made upon her in the State of New York beyond the jurisdiction of this Court and without power.”

We conclude that in such circumstances Mrs. Swanson did not waive her objection to the jurisdiction or to the sufficiency of process. Federal Landlords Committee v. Woods, 9 Fed. Rules Decisions 622; Johnson v. Scarborough, 88 Fed. Supp. 523 (1949).

In our review of the proceedings against Mrs. Swanson we have also observed the point that Mr. John De was called as a witness for the prosecution, and in giving testimony against Mrs. Swanson was obliged over objection to incriminate himself. The point is not available to Mrs. Swanson. The privilege of the witness is personal, and although he may be improperly compelled to testify, the error cannot be asserted by the party. Phleps v. Phleps, 133 N. J. Eq. 392, 396, 32 A. 2d 81 (E. & A. 1943); Cloyes v. Thayer & Morse, 3 Hill (N. Y. Supp.) 564, 566 (1842); State v. Davis, 208 La. 954, 23 So. 2d 801, 811 (1945); Samuel v. People, 164 Ill. 379, 45 N. E. 728, 729 (1896).

There is, however, an additional feature of her case that has not escaped our attention. The wife of John De was directed by the Master to give testimony which was incriminatory of her husband. The Master presumably entertained the opinion that since there had been a severance, the trial of Mrs. Swanson was a collateral proceeding in which Mrs. John De would be a competent witness.

Justice Kalisch, who delivered the opinion of the court comprised of Chief Justice Gummere, Justice Parker, and himself, stated in State v. Herbert, 92 N. J. L. 341, 105 A. 796 (Sup. Ct. 1918): “The reception by the court of the testimony of Charles A. Knittel, which testimony tended to accuse his wife, Helen Knittel, in whose behalf a severance had been previously granted, with the crime of which she stood indicted, in conjunction with the plaintiffs in error, who were then on trial under said indictment, was error which requires a reversal of the judgment.” Additional pertinent citations are: Stewart v. Johnson, 18 N. J. L. 87 (Sup. Ct. 1840); State v. Wilson, 31 N. J. L. 77 (Sup. Ct. 1864); Ware v. State, 35 N. J. L. 553 (E. & A. 1871); Wieczerzak v. Wieczerzak, 115 N. J. Eq. 89, 169 A. 632 (Ch. 1934); 58 Am. Jur. 128, § 180.

Here the husband stood charged with a contumacious offense of an indictable nature. The question concerning the admission of the testimony of Mrs. John De does not implicate so much the matter of privilege (R. S. 2:97-9, N. J. S. A.) as it does the subject of its competency (R. S. 2:97-4, N. J. S. A.).

The conviction of John De remains to be considered. Most of the grounds of appeal presented on his behalf are among those heretofore abrogated by the decisions rendered in the Garuba and Zimmerman cases. In his case the propriety of the service of the order to show cause is not impugned. Its service upon him was made within the State.

Obviously his plea of not guilty was based upon the 'legalistic grounds specified in his appeal and not upon any denial of the accusation that he testified falsely. He had voluntarily subscribed to a frank confession, which was received in evidence in the proceeding prosecuted against him. He refrained from testifying.

This court is directed to exercise such original jurisdiction as may be necessary to the complete determination of any cause on review. Rules 1:4-10 and 4:4-7. Re review of contempt proceedings, vide R. S. 2:15-3 to 6, N. J. S. A., as am. L. 1948, c. 333, §§ 1, 2.

“Our function is not merely to affirm or to reverse and remand for a new trial, but to find the appellant guilty or not guilty, and if we find him guilty, to impose such punishment as the law permits and seems to us just.” Zimmerman v. Zimmerman, supra.

It is within that area of appellate authority that we conclude that the appellant John De Diminieantanio is guilty of the alleged contempt in that he knowingly and willfully swore falsely in the judicial divorce action conducted in the Superior Court. It is our judgment that he be sentenced to a term of imprisonment of thirty days in the common jail of the County of Passaic.

We are persuaded that the conviction of the appellant Mrs. Swanson must he reversed. The reversal, however, does not constitute an adjudication of the guilt or innocence of the appellant on the merits.

In the consideration of these two appeals, the legally significant circumstances of the one were essentially different from those of the other, thus calling for the application of dissimilar principles of law. And so, the seemingly anomalous results were consequently necessitated.


author: Per Curiam.

text:
    SOUTH ORANGE TRUST COMPANY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFAPPELLANT, v. PHILIP ALBANESE AND JOSEPHINE ALBANESE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 13, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Reuben W. Massarsky argued the cause for the plaintiff-appellant.
    No appearance was entered by the defendants-respondents.
   Per Curiam.

This appeal is from an order entered by Judge Francis of the Essex County Court, refusing to direct the issuance of an execution against the wages of the defendant, Philip Albanese, on the ground that the proof submitted in support of the application therefor was hearsay and not competent under Rule 3 :43-3. Actually, the order in question is not such a “final judgment” or interlocutory order from which an appeal is permitted by Rules 4:2-1 and 2. Palm Beach Mercantile Co. v. Ivers, 2 N. J. Super. 5 (App. Div. 1949). The order here is one that is not based upon a legal right, but its allowance rests upon the discretion of the court and it is not reviewable, therefore, on appeal. Palm Beach Mercantile Co. v. Ivers, supra. There was no finality to the order entered. By submitting to the court new affidavits based upon the knowledge of the affiant or taking the testimony of competent witnesses before the court, the relief sought by the appellant may be obtained. The relief sought by the appellant is such that it can only be accomplished by way of an amendment of the Rule. Notwithstanding the order is not appealable, we think the question is one that warrants brief comment.

The plaintiff-appellant contends that the pertinent statute, R. S. 2:26-182, is controlling and that Rule 3:43-3 is not applicable. We are not in accord with plaintiff’s view. The pertinent part of the statutory provision reads as follows:

“When a judgment has been recovered and where any wages, * * * are due and owing to the judgment debtor, * * * to the amount of eighteen dollars or more a week, the judgment creditor may, without notice to the judgment debtor, apply to the court * * * and upon satisfactory proofs, by affidavit or otherwise, of such facts, the court, * * * shall grant, an order direction that an execution issue against the wages, * * * of the judgment debtor.”

Rule 3 :43-3 provides as follows:

“When a motion is based on facts not .appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the affidavits shall be made on personal knowledge and shall set forth only facts which are admissible in evidence and to which the affiant is competent to testify. The court may direct the affiant to submit to cross-examination, or it may hear the matter wholly or partly on oral testimony or depositions.”

The plaintiff contends that “The Legislature definitely intended to lower the quality of proof by inserting the words ‘or otherwise’ after the word ‘affidavit’ ” and that the proofs submitted to the County Court sufficiently satisfied the statutory requirement. We are convinced that Rule 3:43-3 is applicable. See Winberry v. Salisbury, 5 N. J. 240 (Sup. Ct. 1949). Judge Francis properly exercised his discretion in enforcing the rule by denying plaintiff’s application, based, as it was, on “hearsay” affidavits.

The appeal is dismissed, without costs.


author: Rogers, J. A. D.

text:
    FANNY B. KELLY, WIDOW AND GENERAL ADMINISTRATRIX OF THE ESTATE OF LEROY KELLY, DECEASED, PETITIONER-APPELLANT, v. HACKENSACK WATER CO., RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 13, 1950.

      Before Judges Freund, Proctor, and Rogers.

      Mr. Seymour A. Smith argued the cause for the appellant (Messrs. Hein & Smith, attorneys).

      Mr. Francis V. D. Lloyd argued the cause for the respondent (Messrs. Morrison, Lloyd & Griggs, attorneys; Mr. William J. Morrison, Jr., and Mr. Samuel W. Zerman, of counsel).
   The opinion of the court was delivered by

Rogers, J. A. D.

This is a workmen’s compensation case wherein appellant’s claim is based upon the accidental death of her husband, Leroy Kelly, arising out of and in the course of'his employment by respondent, Hackensack Water Co.

At the close of petitioner’s case before the Division of Workmen’s Compensation, respondent’s motion for judgment of dismissal, upon the evidence presented, was granted. The appeal is from that judgment. It is made to this court pursuant to Rules 3 :81-7, 8 because our compensation statute, R. S. 34:15, contains no procedure for appeal where, as in this case, the alleged compensable accident occurred outside tliis State. Cf. Mulhearn v. Federal Shipbuilding and Dry Dock Co., 2 N. J. 356 (1949).

It is fundamental that, upon respondent’s motion for dismissal proposed at the conclusion of petitioner’s case, all reasonable inferences deducible from the evidence submitted must be resolved in petitioner’s favor and that therefrom it be determined whether a prima facie case was presented. The hearing officer concluded that the evidence did not establish a compensable claim under our statute because it did not appear that the employee’s death resulted from an accident arising out of and in the course of his employment. Upon consideration of the evidence, we are convinced that petitioner established a prima facie case and that the judgment of dismissal was error.

Two questions are raised by this appeal. The first is, whether the evidence makes out a prima facie case of compensable accident arising out of and in the course of decedent’s employment. The second is, whether the hearing officer erred in refusing to fully recognize the demands made in the subpoena duces tecum, issued by petitioner.

The first point comprises two phases and was so presented in the briefs and at argument. The primary one is whether the evidence showed the alleged accident which caused the employee’s death was such within the intendment of the statute, or did the evidence demonstrate that his death.resulted from skylarking, intoxication, or willful negligence. If the accident was within the statute, there remains the question of whither it arose out of and in the course of decedent’s employment.

The statutory “accident” means such a happening in the usual and broad sense. Our courts have construed it to be ‘an unlooked for mishap or untoward event which is not expected or designed.” Bryant, Admx. v. Fissell, 84 N. J. L. 72 (Sup. Ct. 1913); Geltman v. Reliable Linen & Supply Co., 128 N. J. L. 443 (E. & A. 1942).

The substantial facts surrounding the accident are:

Kelly’s death occurred while he was attending his employer’s outing at Bear Mountain Park, Yew York, in September, 1949, and it resulted from his fall into a ravine from a steeply declining hard surfaced pathway upon which, at the end of the afternoon, he was returning to the boat provided by the employer for the trip to and from the outing. The path.was curved and steep enough to require one to hold back from gaining too much momentum in travelling down it to the river level from the upper park area where the picnic events were held.- A rustic fence about 3% feet high extended along the pathway separating it from the ravine and to a point where the pathway at a sharp angle met the ramp bridge leading over railroad tracks down to the boat. Kelly fell from the pathway a few feet from its junction with the ramp bridge. There is no evidence as to how he fell, except for the statement of one witness who was also going down the path about 25 feet behind decedent. She says that she suddenly saw an object go over the fence, that she screamed and a number of people then ran to the scene. She found later that the object she saw was Kelly. From the fence to the edge of the precipice there was but a narrow ledge sloping toward the chasm.

Kelly’s death resulted from a fractured skull. He was 60 years old. over six feet tall and weighed more than 200 pounds and he was in sound health.

Despondent’s brief urges that the evidence does not prove Kelly went over the fence by accident and, that accordingly, petitioner has not met the burden of adducing preponderant evidence in favor of her hypothesis that decedent accidentally fell over the fence. In Jochim v. Montrose Chemical Co., 3 N. J. 5 (1949), at page 8, Justice Ackerson said:

'Tn civil cases it is sufficient if the circumstantial evidence he such as to afford a fair and reasonable presumption of the facts inferred. Circumstantial or presumptive evidence, as the basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. The only requirement is that the claimed conclusion from the offered fact must be a probable or more probable hypothesis, with reference to the possibility of other hypotheses. This is merely a rational' inference, i. e., based upon the common experience of mankind. In the final analysis ‘probability, and not the ultimate degree of certainty is the test.’ Seiken v. Todd Dry Dock, Inc., 2 N. J. 469, 475 (Sup. Ct. 1919); Hercules Powder Co. v. Nieratko, 113 N. J. L. 195, 203 (Sup. Ct. 1934); affirmed, 114 Id. 254 (E. & A. 1934); Manziano v. Public Service Gas Co., supra; Russo v. Wright Aeronautical Corp., 1 N. J. 417, 421 (Sup. Ct. 1949).”

Clearly, in our judgment, the surrounding circumstances raise a reasonable presumption that Kelly’s death resulted from an accidental fall over the fence on the steep pathway sustained at his employer’s outing. The evidence does not imply that Kelly’s fall ivas suicidal or caused by his willful negligence. Such acts are never presumed. Jochim v. Montrose Chemical Co., supra. There is also no inference to be drawn that intoxication contributed to the accident because Kelly was at the bar in the Inn at the Park before the accident. There is no evidence that he indulged in intoxicating beverages at all on that occasion.

The evidence at the hearing before the Workmen’s Compensation Division also showed the following facts pertaining to Kelly’s employment at the time of the accident.

The employer’s outing had been an annual event since 1932, except for one year (1948). Following its then abandonment, there was a protest by the employees and it was reinstated in 1949. The protest included a claim that the outing was one of the “benefits” which respondent had guaranteed to continue by the terms of the employment agreement bargained for between employer and employees in 1948. The respondent had always paid the entire expense of the outings and they were conducted completely under its control. Arrangements for the event were made on respondent’s time by representatives of employer and employees. All employees were invited and urged to attend. Tickets were issued to employees bearing their names and they were permitted to bring such relatives as were specifically approved by respondent. For a few years prior to, and inclusive of 1949, the employer had been induced by a representative of the employees’ union to permit friends of the employees to attend the outing provided the employees first secured specific approval of such guests. Employees attending the outing were paid their regular day’s wages. In the event of non-attendance, the employee was required to work at his regular employment. Respondent checked upon employees’ attendance at the outings, and collected the tickets issued for the occasions.

On the day in question, the employees, including Kelly, boarded the boat chartered by respondent to take them to Bear Mountain Park. The incidents of this outing conformed in all respects with those related in the foregoing paragraph. During that journey respondent’s top officials called the employees together and addressed them; awarded pins and money for years of meritorious service; praised the employees for good work, told them to do a good job and that respondent desired to get them all together like one family. All employees in the maintenance department where Kelly worked attended the picnic. Despondent provided other entertainment aboard the boat that day.

When the boat arrived at the Park, Kelly and most of the employees walked from the river level up the steep paved pathway to the elevation where the picnic was to take place. This is the same path from which Kelly fell and was fatally injured, when leaving the picnic area at the end of the afternoon. Despondent circularized the employees and urged their attendance at a softball game to take place at the outing between representative teams from its Weehawken and Hackensack branches. These teams also represented respondent when they played in a league of industrial teams. The employer furnished those teams with the required equipment, and the game was played at the outing and witnessed by the employees. Despondent admitted the entire cost of conducting the picnic “was charged to operating expense * * * as a normal expenditure.” This charge included the salaries of respondent’s committee on the picnic arrangements, the cost of the service pins and the cash awards to employees. The outlay was approximated at $3,500 to $4,000.

The tests of compensable injury by accident under our workmen’s compensation statute are that the accident arose (1) out of and (2) in the course of employment. The primary question for determination here is whether Kelly was in respondent’s employ during his attendance at the outing. The substantial facts sustaining his employment at the time are that the outing had become a custom or usage between employer and employees with resulting mutual benefits; they had become occasions for improving management and labor relations through employer-employee meetings for speeches by company officers praising employees’ work, for awarding medals and prize money for meritorious services, for urging employees to better efforts, and for requesting concerted action as one big family for the welfare of all. Employees’ interest and concern in respondent was sustained and stimulated by the events at the picnics such as the competition between the two softball teams which respondent maintained in the local league of industrial teams. These áctivities were beyond question mutually beneficial, as, it may be assumed, respondent well realized. Literal compulsory attendance at the company’s affairs would not have produced the desired employee enthusiasm, and it is inferable that it was deemed sound policy for respondent not only to meet the whole cost of the outings but to pay the wages of all attending employees as well. It would not be realistic to find that respondent’s complete control of the outing and the inducement to the employees of wages without work while enjoying the affair did not constitute a far greater and more effectual compulsion upon the employees’ attendance than if the outing were paid for by respondent and turned over to the control of the employees, upon condition of mandatory attendance. In the latter instance, it would be human for the employees to resent and to resist the obviously contrived bounty of the employer, and the benefits to the employer and employees reasonably would be less substantial. We perceive that a wholesome contribution to a sound employer-employee relationship resulted from the outing as it was conducted; that the affair was mutually beneficial; and that it was not merely respondent’s gratuity for the exclusive benefit of the employees. The case is within the area of and controlled by the principle enunciated in Saintsing v. Steinbach Co., 1 N. J. Super. 259 (App. Div. 1949); affirmed, 2 N. J. 304 (1949); Freedman v. Spicer Mfg. Co., 97 N. J. L. 325 (E. & A. 1921). We find that Kelly was in respondent’s employ when the fatal accident occurred. This view is strengthened by the evidence that the outing was one of the benefits bargained for in the wage agreement entered into by respondent in 1948. The rule applied here is widely approved. Miller v. Keystone Appliance, Inc., 133 Pa. Sup. 354 (1938); Fagen v. Albany Evening Union Co., 24 N. Y. S. 2d 779 (1941); Kenney v. Lord & Taylor, Inc., 254 N. Y. 532 (1930); 26 N. C. C. A. (N. S.) 1 and notes following: 115 A. L. R. 993, Ann. Cf. Wilson v. General Motors Corp., 298 N. Y. 468 (1949).

Having found that the evidence shows Kelly’s death resulted from an accident within the intendment of the statute and that it establishes at the time he was in respondent’s employ, it follows that the fatality occurred out of and in the course of his employment.

The remaining question is whether there was error in refusing to fully recognize the demands for production of respondent’s records contained in the subpoena duces tecum issued by petitioner. The demand was extremely broad, it was made practically at the opening of the trial and compliance would have cast an unwarranted burden upon respondent. In these circumstances the enforcement of the subpoena was discretionary, and we find the ruling of the Deputy Director did not amount to abuse.

The judgment of dismissal of the petition is reversed and the application is remanded.


author: Proctor, J. A. D.

text:
    RALPH CIARDELLA AND LOUISE CARBONE, PLAINTIFFS-APPELLANTS, v. ROYAL LESTER PARKER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 15, 1950.

      Before Judges Freund, Proctor and Rogers.

      Mr. Harry Chasin argued the cause for the appellant (Messrs. Marcus & Levy, attorneys).

      Mr. Joseph J. DeLuccia argued the cause for the respondent (Mr. A. Leo Bohl, attorney).
   The opinion of the court was delivered by

Proctor, J. A. D.

Plaintiffs appeal from an adverse judgment entered upon a verdict in the Superior Court, Law Division, in a negligence action arising out of a collision between an automobile owned and operated by the defendant Parker, and an automobile owned and operated by the plaintiff Ciardella, in which plaintiff Louise Carbone was an occupant. Ciardella sued for damages for the repairs to his automobile, and Louise Carbone sought damages for personal injuries sustained by her.

There was a sharp conflict in the testimony as to the cause of the collision. Plaintiffs’ theory was that their car was parked oil the highway when defendant’s car struck the rear of the Ciardella car. On the other hand, defendant contended that Ciardella suddenly backed his automobile into the highway from a driveway, striking defendant’s vehicle.

The plaintiffs advance three grounds for reversal of the judgment against them: (a) the examination of the witness Hannold constituted harmful error; (b) the court erred in its charge; (c) the court erred in its refusal to charge as requested.

Hannold, chief of police of the municipality where the collision occurred, was calied as a witness for the defendant. After asking the witness to identify himself and also bringing out that he had been subpoenaed by the plaintiffs (but not called by them), defendant’s attorney, over objection, was permitted to show the witness a written statement. Hannold testified that the statement contained his signature. Over objection, the witness was allowed to read the statement to himself, after which he testified as to the position of the ears when he arrived at the scene of the collision. The witness was then interrogated by defendant’s attorney:

“Q. Now, Officer Hannold, did Mr. Ciardella make any statement to you?
“A. Sir, not that I recall.”

Defendant’s attorney thereupon pleaded surprise and asked permission to cross-examine the witness, which the court granted. The examination continued:

“Q. Did you on October 28, 1948, make the statement that I permitted you to read a few minutes ago?
“A. Yes, sir, that is my handwriting there and my signature.”

After a colloquy between the court and counsel, the following occurred:

“Q. Now, did Mr. Ciardella make any statement to you concerning the accident?
“A. Sir, not that I recall. That night, there was a lot of excitement. There was quite a crowd around there, and being a police officer, and you see the girl was hurt, she was crying, I could not say.
“Q. Did lie, Officer, make the following statement to you:
“ T talked to the drivers of both cars, and the driver of the car that was in the driveway told me he would pay for the damages as it was his fault.’
“Did he make that statement?
“Mr. Chashin: Your Honor, I object on all the grounds which I previously have stated, if your Honor please. I thought you would prefer I would not repeat the reasons. They are all comprised within the objection to the prior question.
“The Court: I will allow it.
“Q. Do you want the question re-read or can you answer it?
“A. X would like to ask that question over again.”
(The last question read by the Reporter.)
“The Witness: I cannot recall that he did.
“Q. Did you in your statement of October 28tli, 1948, say, ‘I talked to the driver of both cars, and the driver of the car that was in the driveway told me that he would pay for the damages as it was his fault’?”

The answer, not being responsive, was struck.

Later the defendant called a witness, Grist, an investigator, who testified he took a statement, signed by Hannold, on October 28, 1948. On objection, the written statement was not admitted in evidence.

It is clear that a party whose cause or defense is injured by the unexpected answer of his own witness may, upon a showing of surprise, neutralize the effect of the adverse testimony by proving that, at a previous time, the witness had made a statement inconsistent with his testimony. Stappenbeck v. Jagels Fuel Corp., 131 N. J. L. 215 (E. & A. 1944). This may be accomplished by cross-examination of the witness. State v. Hogan, 137 N. J. L. 497 (old Sup. Ct. 1948); affirmed, 1 N. J. 375 (1949). However, the purpose of such cross-examination is limited, as stated by Justice Burling in State v. Hogan, supra:

“This cross-examination is permitted for the sole purpose of neutralizing or of wiping the slate clean of the unexpected adverse testimony of the witness and is to be clearly distinguished from impeachment.”

In the present case there was no “adverse” or hurtful testimony given by Hannold and, consequently, there was nothing to be erased. The effect of neutralizing the testimony of the witness should never be more than the cancellation of the adverse answer by which the party is surprised. Moon v. Lewis, 116 N. J. L. 521 (E. & A. 1936); State v. D’Adame, 84 N. J. L. 386 (E. & A. 1913). Therefore, where the witness, as here, gives no testimony injurious to the party calling him but only fails to render the assistance which was expected, because of a failure of recollection, there is no basis for neutralizing under the rule. While a party should not be denied the right to defend his case by an unwilling or hostile witness, yet he should not be permitted to read before the jury an unsworn statement of such witness under the pretense of neutralizing his testimony. See cases in Note, 74 A. L. R. at 1064 et seq.; Note, 117 A. L. R. 326; Note, 42 L. R. A. (N. S.) 747; 58 Am. Jur. 445, § 800 et seq. See also Wigmore on Evidence, 3rd Ed., §§ 1018, 1043.

Under the circumstances, it was unusual for the defendant to be permitted to show his own witness the signed statement and to require the witness to read it before he had been asked any questions concerning a fact in issue. After Hannold testified that the written statement contained his signature but that he did not recall Ciardella’s making any statement to him, defendant’s counsel was permitted, in the presence of the jury, to read to the witness, in the form of a question, a damaging admission allegedly made by Ciardella. The written statement itself, of course, was not competent as proof of the facts stated therein. Moon v. Lewis, supra. Since Hannold had not given any testimony injurious to the defendant nor manifested any bias, it seems clear .that the interrogation was prejudicial to the plaintiffs in that it allowed the jury to consider the content of his unsworn statement assertively expressing, as it did, that Ciardella by his own admission was at fault. The result of such interrogation was to put in the mouth of the witness the very allegations of fact which defendant wished him to verify by an affirmative answer. See Fisher v. Hart, 149 Pa. St. 232, 24 A. 225 (Sup. Ct. 1892). Even if we assume that it was proper for the defendant’s attorney to read excerpts from the statement in the presence of the jury, such excerpts have no substantive or independent testimonial value, and the jury should have been instructed to that effect. State v. D’Adame, supra; State v. Kysilka, 85 N. J. L. 712 (E. & A. 1914); State v. Rappise, 3 N. J. Super. 30 (App. Div. 1949); Wigmore on Evidence, 3rd Ed., § 1018. Compare Kulinka v. Flockhart Foundry Co., 9 N. J. Super. 495, 500 (Essex Cty. Ct. 1950). Moreover, an admission by Ciardella would not be binding on plaintiff Carbone.

Uor can the interrogation be justified on the ground of refreshing Hannold’s recollection. It was evident that the witness’ memory was not refreshed, and the use of the statement was then at an end. Thereafter, it was improper for the defendant’s attorney to call attention to its contents by way of interrogation under the guise of refreshing his recollection. Wigmore on Evidence, 3rd Ed., § 763; see also Note, 125 A. L. R. at 65; cf. Crothers v. Caroselli, 126 N. J. L. 590 (E. & A. 1941); Cooper v. Endress Motors, Inc., 123 N. J. L. 290 (E. & A. 1939); North Hudson County Railway Co. v. May, 48 N. J. L. 401 (Sup. Ct. 1886).

The cases of State v. Kwiatkowski, 83 N. J. L. 650 (E. & A. 1912), and State v. Silver, 2 N. J. Misc. 479 (Sup. Ct. 1924); affirmed, 101 N. J. L. 232 (E. & A. 1925), are not applicable. In each of those cases the witness had given testimony at an earlier trial, and it was with this former testimony that he was confronted at the later trial. A witness’ prior testimony is ordinarily usable to refresh his memory either on direct or cross-examination. See Note, 125 A. L. R. at 240.

We conclude the interrogation of Hannold constituted prejudicial error.

We find that the remaining reasons assigned for reversal are without merit.

Reversed and remanded, costs to abide the event.