text:
    EASTERN TIRE COMPANY, A CORPORATION, APPELLANT, v. HARRY GOUKLER, RESPONDENT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Tkenchaed, Kalisci-i and Lloyd.
    Eor the appellant, Irving J. Rosenberg.

    Eor the respondent, Robert Peacoch.

   Pee Cueiam.

This was an action to recover the amount of a cheek, given by defendant, for $440. The case was heard by the judge of the District Court, without a jury.

The plaintiff proved that it took the cheek on the day it bore date, partly in payment of tires, and party for cash; that on presentation the check was not paid. The defendant’s contention was illegality in the contract; this illegality consisting of the fact that it was given for the purchase of liquors. The trial judge, deeming this a good defense, rendered judgment for the defendant and the plaintiff appeals.

In thus ruling we think there was error. "Under the proofs plaintiff was a holder in due course (Rice v. Barrington, 75 N. J. L. 806), and as such was entitled to recover the amount of the check. Assuming that the evidence offered'by the defendant established that a sale of intoxicating liquors was the consideration for which the check was given, this was not a defense against a tona fide holder, whatever the effect of the illegal consideration might bo as between the immediate parties. Pamph. L. 1902, p. 593, § 57; 8 C. J. 767, 768.

The judgment is reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JACK WECHSLER AND TOBIAS GOLD, PARTNERS, TRADING AS NEW YORK WINDOW SHADE COMPANY, RESPONDENTS, v. FRANK R. CLARKE, APPELLANT.
    Submitted May 8, 1929
    Decided July 5, 1929.
    Before Justices Parker, Black and Bokuste.

      For the appellant, Levy, Fenster <& McQloskey.

    For the respondents, Frank Masini.

   Per Curiam.

Judgment in this case was entered on a hook account. On August 10th, 1927, Jack Weehsler received a phone order to place window shades in an apartment house at Ellis and Springfield avenues, Irvington, New Jersey. He went to the office of Eichard H. Thiele, Esquire, an attorney-at-law, and was told by Mr. Thiele 'to take the measurements and deliver the shades to the apartment house and to charge them to the Ellis Eealty Company.

The court found that the defendant, Frank E. Clarke, was liable for the shades as Mr. Thiele had purchased them as agent for him.

The sole question in this case is whether there was competent legal proof that Eichard H. Thiele was agent for Frank E. Clarke when he ordered the shades for the apartment house, in which Clarke had an interest.

The only testimony touching the matter was the testimony of Thiele and his declarations. Agency may not be proved by declarations of the agent. Further, Thiele merely testified that he was Clarke’s attorney. An attorney-at-law has no implied authority to buy window shades.

The case must be reversed.


text:
    JOHN HEHLO AND MICHAEL HOVAN, PLAINTIFFS, v MARATHON BUS LINE, A CORPORATION, DEFENDANT.
    Submitted January term, 1929

    Decided July 3, 1929.
    Before Justices Trenoitard, Kamsch and Lloyd.
    For the rule, Schneider & Schneider.

    Contra, David T. Wilentz.

   Per Curiam.

The plaintiff Hovan recovered a verdict of $10,000 for personal injuries and the defendant has a rule for new trial. The sole reason urged for making this rale absolute is that the verdict is excessive.

The proofs established the following facts: The plaintiff, a man thirty-four years of age, with a family, was struck and injured on the head in a collision between a Ford car, in which he ivas seated, and the defendant’s bus. His injuries consisted of a cut on the forehead and contusions on the top of the head, over the nose and over the left chest. Immediately after the accident he was examined by a physician, who testified that he was brought to him in a stuporous condition. The physician seemed to think nothing serious would come of the injuries, and after some slight treatment, sent him home. The plaintiff, however, continued to have pains in his head, dizziness, and was unable to perform the physical work in which he was engaged. After two months, as a result of these conditions, his physician had X-ray pictures taken and these revealed that there was a fracture at the hack of the head resulting in the overlapping of portions of the skull. There was testimony from which the jurjr could justly conclude that this injury was serious; that it would probably interfere with his life work, possibly depriving him of ability to work altogether; that it then was and would continue to cause him great pain, and that epileptic results were not improbable.

Under these proofs we cannot say that the verdict is so clearly excessive in amount that we would be jrrstified in disturbing it.

The rule for new trial is discharged.


text:
    JOSEPH JULICH, ADMINISTRATOR AD PROSEQUENDUM UPON THE ESTATE OF PHILIP JULICH, DECEASED, PLAINTIFF, v. T. A. GILLESPIE COMPANY, A DELAWARE CORPORATION; CAL McCARTHY, WILLIAM T. MOORE AND PETER HASCUP, DEFENDANTS. GEORGE W. STEINERT, Jr., PLAINTIFF, v. T. A. GILLESPIE COMPANY, A DELAWARE CORPORATION; CAL McCARTHY, WILLIAM T. MOORE AND PETER HASCUP, DEFENDANTS. WINIFRED TISSIERE, ADMINISTRATRIX AD PROSEQUENDUM UPON THE ESTATE OF LUCIEN JOSEPH TISSIERE, DECEASED, PLAINTIFF, v. T. A. GILLESPIE COMPANY, A DELAWARE CORPORATION; CAL McCARTHY, WILLIAM T. MOORE AND PETER HASCUP, DEFENDANTS.
    Submitted January 26, 1929
    Decided July 3, 1929.

      Before Justices Tbenchabd, Kalisch and Lloyd.
    Eor the rules, Edwards & Smith (Edwin F. Smith, of counsel).
    Contra, Levenson, Comen & Levenson (Julius Seiden, of counsel).
   Per Curiam.

These are rules to show cause obtained by the defendant T. A. Gillespie Company, why verdicts at the Hudson Circuit in favor of the plaintiffs should not he set aside (the actions having arisen out of: the same accident, and having been consolidated for the purpose of trial).

The verdict in favor of Steinert was for $500; the verdict in favor of Tissiere, administrator, was for $12,000; the verdict in favor of Julich, administrator, was for $5,000. Each verdict was against the defendant T. A. Gillespie Company only.

The complaints charged defendant with negligence in that while it caused to he driven through the highway known as the Paterson Plank road, a horizontal boiler supported on wheels attached as a trailer to an automobile tractor, it failed to supply a proper warning light on the rear of the boiler, thereby causing the plaintiff Steinert to run bis motorcycle into the rear of the boiler. In such accident Steinert was injured, his motorcycle wrecked, and the two passengers in the motorcycle, Tissiere and Julich, were killed.

The testimony disclosed that on the night of the accident, the light on the rear end of the boiler was out; that it went out ou three occasions on this one trip, twice in New York and once in Jersey, and on each occasion -Was relighted by Langley, the servant of the defendant; that about fifteen or thirty minutes prior to the collision, Langley got upon the truck alongside of the driver, and during that space of time no inspection of the light on the rear of the boiler was made; that after the collision Langley was seen by the chief of police and a police officer who arrived at the scene of the accident, relighting the rear lamp.

The testimony just recited we think is of peculiar signifi-. canee and rendered the question of the negligence of the defendant one for the jury, and hence the defendant’s motions to nonsuit and for the direction of a verdict were properly' denied.

We do not think that Steinert was guilty of contributory negligence as a matter of law. He was driving his motorcycle at a speed of twenty-five miles an hour on a road at a place where the houses were more than one hundred feet apart. His duty was to exercise reasonable care in the control, management and direction of that machine. He was required to make such observations for traffic, for obstructions ahead of him on the highway, and to exercise such judgment to avoid coming in contact with them as a reasonably prudent person would have done in the same circumstances. The evidence tends to show that his motorcycle had in use a headlight, a tail-light and a sidelight; that the visibility varied at different places that night; at places he could see ten feet, others thirty feet, and others fifty feet. He knew the road very well. He saw the boiler when about ten feet away hut too late to avoid it. We do not perceive how it can be said that Steinert was guilty of contributory negligence as a matter of law. Podolsky v. Sautter, 102 N. J. L. 598.

Neither do we see how it can he said that Tissiere and Julich were guilty of contributory negligence as a matter of law. These men were riding with Steinert and were both killed, and, of course, did not testify. There is no suggestion that the passengers in anywise contributed to or interfered with the management or the driving of the motorcycle.

We do not perceive that upon any of these questions, nor upon the question of proximate cause, that the verdicts in favor of the plaintiffs can be said to be against the weight of the evidence; nor do we find any fault with the refusal of the judge to charge as requested.

It does not seem to he argued that the verdicts were excessive, and plainly they are not.

The rules will be discharged.


author: Pee Cueiam.

text:
    R. H. MUIR, INCORPORATED, RESPONDENT, v. CHURCH CONSTRUCTION COMPANY, APPELLANT.
    Decided July 3, 1929.
    Before Gttmmeee, Chiei’ Justice, and Justice Paeicek.
    For the appellant, David M. Litwin.

    For the respondent, Stanley L. Gedney, Jr,

   Pee Cueiam.

The plaintiff instituted this suit to recover the sum of $1,462.50, being an unpaid balance alleged to be due upon a conditional sales agreement, by the terms of which the plaintiff was to furnish and install in the apartment house of the defendant a certain number of electric refrigerators; the plaintiff claiming that it had performed this agreement on its part. The defendant alleged in its answer that, in order to induce it to enter into the contract, the plaintiff corporation, through its duly authorized agent, represented that the electric motors which operated the refrigerators, would have to be run a total of only two hours in every twenty-four; that the running of said motors during'that period of time would maintain the refrigerators in a sufficiently cold condition to render the service expected of them, and that the operation thereof would be noiseless. The defendant then averred that, believing these representations to be true, and because thereof, it entered into the contract sued upon. The answer then recites that after the refrigerators and motors were installed it was found that it was necessary, in order to keep the refrigerators in proper condition, to have the motors running practically from a half to three-quarters of each and every day; that the motors, instead of being silent, made a great deal of noise, causing the tenants to make complaints upon account thereof; that, upon the situation being called to the attention of the plaintiff, it sent men to correct the trouble, but that no beneficial results followed the attempted correction; and that, because of these facts, it is not legally obligated to pay the full amount of the purchase price. The plaintiff, after the filing of the answer, moved to • strike it out, upon the ground that it was untrue in fact and sham. A hearing was had upon the motion, at which affidavits were submitted on the part of the respective parties in support of and in opposition to it. At the conclusion of the hearing the court struck out the answer as sham and directed the entry of judgment for the plaintiff.

The facts set up in the affidavits submitted by the defendant support the averments of the answer. If they are true, they constitute a defense pro ianto to the plaintiff’s claim; that is, they entitle the defendant to a reduction of the contract price. Byard v. Holmes, 33 N. J. L. 119; Roberts v. James, 83 Id. 492, 499. It is argued on behalf of the plaintiff that these inducing misrepresentations, assuming that they were made, cannot he availed of by the defendant in its attempt to defeat plaintiff’s right to recover the full purchase price of the electric refrigerators and their appurtenances, because of the fact that the thirteenth section of the conditional sales contract provides that “there are no promises, terms, conditions or obligations referring to the subject-matter other than contained herein;” and that because thereof it should not he permitted to defeat its contract obligation except by showing a breach by the plaintiff of one or more of the provisions contained in this excerpt. In our opinion, however, this argument is unsound. The words cited, construed in accordance with their natural meaning, do not include untrue representations made before the execution of the contract afterward entered into and which were the inducing cause of the defendant making it.

Eor the reason indicated, we consider that the answer filed in the, case is not sham, and that the defendant is entitled to have the issue raised thereby determined by a jury.

The judgment under review will he reversed.


author: Pee Cuetam.

text:
    ALBINO SCILIMBRACCA, RESPONDENT, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, APPELLANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Teenciiaed, Kaltscii and Lloyd.

      Eor the appellant, William A. Barhalow.

    Eor the respondent, Arthur DeVinseniU.

   Pee Cuetam.

This action was brought by a passenger against the Central Railroad Company to recover damages for injuries to plaintiff’s eyes, caused by the breaking of the glass window near which he was seated in defendant’s train. The plaintiff’s case disclosed these facts, and a motion for nonsuit was made and denied. Later, a motion for direction of a verdict in favor of defendant was made, and this also was denied.

On judgment being rendered for the plaintiff, the defendant appeals alleging error in these rulings.

We think the rulings were right. The nonsuit was properly denied, because from the breaking of the glass the judge, sitting as a jury, might infer negligence, precisely as was held in the case of Hughes v. Atlantic City Railroad, 85 N. J. L. 212, where a broken electric light bulb caused like injury:

As to the denial of the direction of a verdict for defendant, this was based on proof of an alleged admission of the plaintiff that a stone had been thrown through the window, and also the testimony of a boy that he had thrown stones at trains on that night. If this proof had clearly established that the accident happened because of a stone thrown by someone for whom the railroad company was not responsible, we might be called upon to say whether such proof would remove the question as one of fact from the trial judge, sitting as a jury, and convert it into a question of law, but .the evidence was not of a character to invoke a ruling on this point. There was no proof that at the time the car was passing at seven-thirty in the evening any stones were thrown at it, and the plaintiff denied having made the admission attributed to him.

The judgment is affirmed.


author: Pee Curiam.

text:
    MICHAEL KINDER, PLAINTIFF-RESPONDENT, v. ERIE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Ilobarb & Minará.

    For the respondent, James P. Mylod.

   Pee Curiam.

This is an appeal by the defendant from a judgment for plaintiff on a second trial in the Essex Circuit Court. The grounds of appeal urged are that the trial judge should have controlled the case by nonsuit or direction of a verdict in favor of the defendant. The case was before the court on defendant’s appeal from a previous trial, and was then reversed in an opinion which held that a nonsuit should have been granted. 103 N. J. L. 316.

The essential facts of the case as now presented do not vary materially from the facts as presented on the former trial.

For the reasons expressed in the opinion filed on the earlier review the present judgment is reversed.


text:
    ESTHER LEWIS, RESPONDENT, v. M. & V. MOTOR COMPANY AND ANTHONY MANZO, APPELLANTS. FRANKLIN LEWIS, RESPONDENT, v. M. & V. MOTOR COMPANY AND ANTHONY MANZO, APPELLANTS.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Tkenchaed, Kalisch and Lloyd.
    For the appellants, Donohue & O’Brien.

    For the respondents, Addison P. Rosenlcrans.

   Pee Cueiam.

These were automobile accident cases in which verdicts were awarded to the plaintiff Esther Lewis for personal injuries, and to her husband, Franklin Lewis, for loss of services and expense of curing her. The accident happened about eight-fifteen on the evening of October 21st, 1921', and was caused by the automobile driven by Franklin Lewis colliding with a bus of the defendant. Motions were made for direction of a verdict and refused. The defendant Manzo alone appeals, setting forth as ground for reversal that the court should have found for the defendants.

We think the cases, tried without a jury, presented questions of fact for the trial judge. The plaintiffs’ evidence showed that they were proceeding on their proper side of the road at approximately thirty miles an hour, and suddenly came upon the unlightecl remains of the defendant’s burned bus. The car collided with it, caught lire and was in turn destroyed. Both plaintiffs were injured.

The evidence of the defendant Manzo was that the bus caught fire about six-thirty o’clock in the evening; that he left it on the road to get a wrecking car; that he got back just about the time of the accident and that the bus was then still burning.

These conflicting proofs simpty raised an issue of fact for the trial judge. From these he could conclude that at the time of the accident the fire had gone out and that it was negligent for the driver to have left the burning bus without guard or light, knowing that when the fire ceased burning the bus would remain a menace to other users of the highway.

Whether the plaintiffs were guilty of negligence presented a fact question as to the plaintiff Franklin Lewis, and possibly as to Mrs. Lewis. Certainly the court could not say, as matter of law, that such negligence existed.

The judgments are affirmed.


text:
    I. R. TAYLOR & COMPANY, RESPONDENT, v. GUSSIE RUBIN, APPELLANT.
    Decided July 3, 1929.
    Before Gummere, Chief Justice, and Justice Pabker.

      For the appellant, Isaiah Matlaclc.

    For the respondent, Diirand, Ivins & Carton.

   Pee Cueiam.

This is an action on a- mechanics’ lien brought by the contractor against the owner and builder. The trial resulted in a verdict in favor of the plaintiff for the full amount of his claim, and the defendant has appealed from the judgment entered thereon.

The first ground upon which a reversal is sought is that the court erred in denying the defendant’s motion to non-suit. This motion was based upon a provision in the contract to the effect that, should any dispute arise between the contractor and owner, either during the progress of the work or after the termination thereof, as to quantity or quality of work done, or as to any matter of payment, or as to any matter or amount or allowance under the contract, then such matter in controversy should be referred to three arbitrators, whose decision should be final and conclusive upon the parties to the contract, and whose determination should be a condition precedent to the right of action by either party against the other. The contention on the part of the defendant is that this requirement of the contract was a bar to the present suit. It is to be observed that the provision only'- applies in case a dispute arises with relation to any of the matters recited therein. Our examination of the evidence submitted on behalf of the plaintiff satisfies us that no such dispute had arisen between the parties, and, on a motion to nonsuit, this evidence must be accepted as a true statement of the facts testified to therein. We consider, therefore, that the refusal to direct a nonsuit upon the ground specified was proper.

The next ground for reversal is directed at that portion of the charge of the court which left it to the jury to say whether or not the defendant’s architect named in the contract had power, as her representative, to modify or alter the plans and specifications, with the consent of the plaintiff; such, changes having been made by agreement between these two, apparently without consulting the defendant. We consider that this instruction was beneficial, rather than harmful, to the defendant, in view of the admission of the latter’s counsel made before us that the contract “provides in clear and unambiguous language the right of the architect to make changes in the plans and specifications.” Although the architect is admittedly the representative of the owner in making such changes, the charge permitted the jury to find that the alterations in the work made by the contractor were unauthorized by the defendant, if they concluded that the architect had no power to represent her in agreeing that they should he so made; and, as a necessary implication, that in the absence of such authority the jury might find that the plaintiff had violated his contract in not doing the work in accordance with the plans and specifications annexed thereto.

The only other reason urged for a reversal is based upon an alleged error of the trial court, in its instruction to the jury, relating to the abandonment of the provision of the contract providing for the waterproofing of the cellar. The charge called the attention of the jury to the fact that this abandonment was the result of an agreement between the defendant’s architect and the plaintiff, and what was said in elaboration of that situation was entirely justified by the proofs.

The judgment under review will he affirmed.


text:
    WALTER B. KEILT ET AL., APPELLANTS, v. ANNIE D. LOZIER ET AL., RESPONDENTS.
    Decided July 3, 1929.
    Before G-ummere, Chief Justice, and Justice Parker.
    Eor the appellants, Iiuclcin & Huclcin.

    Eor the respondents, William J. Morrison, Jr.

   Per Curiam.

. This is an action of ejectment, the question involved being the true location of the party line separating the lands of the respective parties, which are adjoining. Tile trial resulted in a verdict in favor of the defendants, and the plaintiffs have appealed from the judgment entered thereon.

The title to both tracts was originally in one Johnson. He sold the plaintiffs’ tract in May, 1865, to one Everett, from whom the title passed by various mesne conveyances to the plaintiffs. Later, and in October, 1867, he sold the tract now owned by the defendants to one Sisson, and the defendants’ title comes from Sisson by a similar chain. The present suit is based upon the claim that the defendants are occupying, without legal right, a strip of land about four feet in width abutting upon the dividing line separating the two tracts, but embraced in the conveyance by Johnson to Everett and in the various subsequent conveyances by -which the title thereto passed to the plaintiffs; and that they are the legal owners thereof. The contention of the defendants was that this claim was contrary to the fact, and the jury so found upon the testimony at the trial.

The first ground upon which we are asked to reverse the judgment is directed at an alleged error committed by the trial court in allowing, over objection, testimony with relation to the occupation of this strip of land by the defendants and their predecessors in title. The ground upon which this testimony was objected to was that adverse possession was not set np as a defense, and that, therefore, it was not competent to prove facts showing a title based upon it. It may be conceded that the testimony was not competent for the purpose stated; hut it was not offered for that purpose. It had already been proved in the case that a fence had been constructed many years before along what the defendants claimed was the true location of the line separating the two tracts, and the purpose for which the testimony was offered was to show that for many years thereafter, and until the institution of the present suit, the defendants and their predecessors in title had been in actual possession of the land embraced in their deed, and which, as they asserted, included the strip involved in the present controversy, and that such possession had been not only continuous, hut peaceful, until a comparatively short period before the institution of the present litigation. The validity of this testimony for the purpose for which it was offered cannot, as we think, be successfully controverted. The action of the court was fully-justified by the rule laid down in Jackson v. Perrine, 35 N. J. L. 142, and followed in Spottiswood v. Morris & Essex Railroad Co., 61 Id. 322, 339.

It is next contended that the court improperly charged the jury, in compliance with a request submitted by the defendants, that, even if there was no doubt of the true location of the plaintiffs’ northerly line from the construction of the deeds which were offered in evidence, yet, if the jury should find from the evidence that the persons who by these deeds were the former owners of the plaintiffs’ property by their acts in locating the line had fixed it definitely, and so induced the defendants and those from whom they derived their title to act upon such erroneous location, the plaintiffs are bound by such location, and are, by their acquiescence and the acquiescence of their predecessors in title, now precluded from disputing the boundary line so fixed, even though the acquiescence was for a period less than twenty years. In our view, this instruction was legally unobjectionable. Whether there was evidence of the matters set out in the request was for the determination of the jury, and not of the court. If the jury found that there was such evidence, then the legal rule applicable to the situation, and already referred to, is a proper subject of a charge in that respect by the court.

Next, it -is argued that the court improperly refused to charge the following request submitted by the plaintiffs: “There is no evidence in this case that any fence at any time had been erected to mark the northerly Everett line by the Everetts or anyone authorized by them or for whose action the Everetts or their successors in title were responsible.” We consider that this request was properly refused. It does not contain any legal proposition, but calls for a finding of fact by the court of a matter which, under the proofs in the case, was for the determination of the jury.

The only other contention relied upon for reversal is that the court improper^ refused to charge the jury, in compliance with the request of plaintiffs, that the defendants could not acquire a title by adverse possession unless they and their predecessors had occupied this land under a claim of right openly, notoriously and continuously for a period of twenty years. This request was properly denied, for the reason that there was no claim of adverse possession set up by the defendants, and that matter was not involved in the litigation.

The judgment under review will be affirmed.


text:
    MITCHELL DE RISIO AND ROSE DE RISIO, HIS WIFE, RESPONDENTS, v. OTTO WEILER AND FRANCES BUTTERHOF, INDIVIDUALLY AND TRADING AS WEILER & COMPANY, APPELLANTS.
    Submitted May 8, 1029
    Decided July 5, 1929.
    Before Justices Parker, Black and Bojmne.
    For the respondents, Oscar LeWive and Edmund 0. Gashill, Jr.

    For the appellants, William I. Garrison.

   Pee Curiam.

The action in the District Court ivas for an unlawful taking of household goods, money, jetvelry and other personal effects. The answer denied every material allegation in the complaint, except that it admitted taking certain of the goods in question after one Loveland, the sergeant-at-arms in the Disrict Court, had executed a writ of replevin.

The case was tried before a jury and under suitable instructions they returned a verdict in favor of the plaintiff in the sum of $500, and it is for the purpose of setting aside this verdict that the rule to show cause avrs granted.

The verdict of the jury is challenged on the ground that it is against the clear weight of eAÚdeuce, is excessive and under no possible reasoning could the jury have arrived at such a Arerdict. The eAridence offered by the plaintiff shoAvs that they had been, in possession of certain goods and that they were taken by the defendants Avhile they were away from home. There is some testimony as to the value of the goods. The household goods had been purchased and had been used for sometime. The purchase price and the extent of the use was testified to. There was some testimony in which the jewelry was described. Insurance papers, money and other documents seem to have been taken, and there was testimony with respect to these.

The verdict should not be disturbed unless clearly improper, and we think this verdict reasonably supported by the evidence in all aspects in which it is challenged.

The rule to show cause will be discharged.


author: Bodine, J.

text:
    GEORGE BOWLEY, POLICE OFFICER, PROSECUTOR, v. JAMES McFADDEN, DEFENDANT.
    Decided July 5, 1929.
    Eor the prosecutor, Robert Peacock.

    Contra, Ernest Watts.

   The opinion of the court was delivered by

Bodine, J.

The petitioner was arrested on November 10th, 1928, for a violation of the Motor Yehicle act. He appeared in court before J. Leedom Smith, a justice of the peace, on November 12th, 19.28, but no action whatever was taken. On November 16th, 1928, in the absence of petitioner, a plea of guilty was entered by the justice of the peace and a fine of $200 and costs was imposed. The conviction must be set aside for the reason that a plea of guilty must be interposed by the defendant charged with crime. It cannot be entered in a defendant’s absence.


author: Pee Curiam .

text:
    GIBSON REFRIGERATOR COMPANY, RESPONDENT, v. SAM BRODY ET AL., TRADING AS PASSAIC FURNITURE COMPANY, APPELLANTS.
    Submitted May term, 1929
    Decided July 15, 1929.
    Before Justices Parker, Black and Bobine.
    Eor the appellants, Spindel <& Berr.

    For the respondent, Milton ill. Richmond.

   Pee Curiam .

This suit was brought in the Passaic District Court to recover the sum of $350 on a book account for refrigerators sold and delivered. The ease was tried by the court, without a jury, resulting in a. judgment for the plaintiff for $292.91.

The appeal is by “Ida Berg, trading as Passaic Furniture Company;” and this appellant was neither named originally as a defendant nor brought in by process, nor, so far as we observe, did she enter an appearance.

The defendants named in the summons and state of demand were “Sam Brody, Max Brody, first name being fictitious and unknown, and Mary Brody, name being fictitious and unknown, partners, trading as Passaic Furniture Company.” The ret11 i'n to the summons shows that it was served on Samuel Brody, but apparently not on anyone else. At the trial it developed that the real party in interest was neither Sam Brody nor Max Brody, who seem to have been employes, and as to whom a nonsuit was properly entered, but was Ida Berg, who was not served at all, and was not even named as a defendant, unless by a stretch of the imagination Mary Brody, fictitious, may be said to indicate Ida Berg. It further appeared that there was no partnership of any kind. Notwithstanding the utter absence of any regular procedure to bring Ida Berg into court and charge her as the purchaser of the refrigerators, the ijudge ordered an amendment bringing her in as a defendant, and proceeded to enter judgment against' her forthwith, over' the protest and exception of counsel objecting in her behalf.

It may well be that Ida should be held liable in a proper case in which she is duly summoned to answer; but the foregoing action of the court below strikes us as altogether irregular and unwarranted, and for this reason the judgment must be reversed.


author: Peb Gcjuam.

text:
    INDUSTRIAL SALES ENGINEERING COMPANY, RESPONDENT, v. ISADORE AGISIM, APPELLANT.
    Submitted May 17, 1929
    Decided July 15, 1929.
    Before Justices Parker, Black and Bodine.

      For the appellant, Louis A. Fast.

    For the appellee, William Greenfield.

   Peb Gcjuam.

Suit on eight notes at $53.33 each for installments on purchase of an oil heater. Defense, that the heater did not function, as guaranteed in writing, and counter-claim for damages. It appeared that the plaintiff got the heater back, and allowed $250 therefor, which the court credited on the notes and gave a judgment for plaintiffs for a balance of $216.93 from which defendant appeals.

According to the state of case, settled by the court, plaintiff’s evidence was that failure to get the required heat “was due to the use of unsuitable fuel oil.”

The contract of sale is in writing and voluminous, but it says nothing about the kind of oil required. The appliance is called an “automatic oil-burner.” The guarantee is as follows:

“Guarantee to faithfully perform all of the above specifications with respect to this installation, further guaranteeing to you the mechanical construction of the entire equipment, also first class workmanship in every detail, and that the Aetna Automatic Oil-Burner will positively produce tire amount of heat required in your boiler or furnace for the maximum radiation for which your boiler or furnace is rated by the manufacturer for the sum of eleven hundred dollars, payable as follows: Upon signing of this contract $300 when tank is installed, $800 when burner is installed, in fifteen monthly notes at $53.33, first note payable Sept. 1/27.

“The Aetna Automatic Oil-Burner is fully guaranteed by the manufacturer.”

The grounds of appeal are, in substance:

1. Admitting testimony that defendant used inferior and unsuitable oil.

2. Ruling that plaintiff was not required to insert specification of character of oil to be used, in the contract.

3. Putting on "defendant the burden of proving in what way the apparatus was defective.

4. General error.

2. Of course there is no absolute dutjr on a contracting party to embody or omit any particular stipulation. The question will be what construction and effect to give -to the contract as made, in the presence, or absence, of a particular stipulation, as the case may be.

1. In the absence of stipulation the contract will'be construed as calling for the use of oil reasonably adapted to the purpose of that class of heater. Hence, testimony as to what oil defendant did use, and that it was or was not unsuitable, was competent. The objection seems to have been general and the ruling was necessarily general also. The case does not show any spcific question objected to and laid before us.

3. Defendant set up a guarantee and alleged a breach, i. 0., that the burner did not heat as guaranteed. Plaintiff confessed -and avoided, saying, in substance, that assuming that it did not heat, that was because defendant used poor oil where he should have used reasonably good oil. This, as it seems to us, put on plaintiff the burden of proving that assertion. 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. This is the implication in Domestic Co. v. Meloy, 144 Atl. Rep. 871; 7 N. J. Adv. R. 675, in which the heater did not function and plaintiff properly undertook to explain. In the present ease the judge seems to have ignored the fact that there was a guarantee of performance and treated it as a guarantee of quality merely. He certifies that he expressly ruled “that it was incumbent upon the defendant to establish in what way the apparatus was defective.”

This we think was erroneous; and as the error may well have controlled the decision, we must assume that it was harmful.

The judgment will be reversed to the end that the case be retried.


text:
    ANNA BROMBACHER, ADMINISTRATRIX, ETC., RESPONDENT, v. JOURNEYMEN BARBERS’ INTERNATIONAL UNION OF AMERICA, LOCAL NO. 362, GARNISHEE, APPELLANT.
    Submitted May 17, 1929
    Decided July 15, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Samuel Tartalshy.

    Eor the appellee, Irwin Rubenslem.

   Per Curiam.

This is an appeal of a local lodge in a garnishee proceeding after judgment in attachment, against 'the national body.

Plaintiff is the widow of William Brombacher, who was a member of the local and whose estate, or widow, was entitled to death benefits from the national by reason of monthly payments to the local, in the usual manner. We gather from the case and briefs, though the point seems now unimportant, that William Brombacher did not pay his dues on the first of the month as required by the by-laws, but that the local advanced for him to the national, as in the Peterson ease, 98 N. J. L. 196. As the dues were ultimately paid, that question is out of the case at this stage. We gather also that the national refused to pay the death benefit and the widow as beneficiary sued out an attachment in'the district court against it as a non-resident debtor domiciled in Indiana, that the case was contested, and that the widow had a judgment. The national seems to have 'appeared specially only.

The writ of attachment was executed against funds in the hands of the local and in the physical custody of its treasurer, Anthony Danza, and both were included in the scire facias, but at the end of the case Danza was discharged, by consent of the plaintiff’s attorney. The theory of the scire facias, as well as of the writ of attachment, was that inasmuch as the local was required under the regulations of the order to collect certain initiation fees and dues, and as, out of the dues, the sum of eighty cents per month for each member was to be remitted by the local to the national, and as since the levy of the writ more than $500 had come into the hands of the treasurer of the local for this purpose, this credit in favor of the national was liable to the attachment and subject to be paid to the plaintiff under the scire facias. The point was raised early in the case by motion to quash the attachment, but passed by the court (6 N. J. Mis. R. 1069), and is now the sole remaining question in the case, viz., whether a sum of money collected by the local’ for account of the national, and actually in the hands of the local for that purpose, is a debt, or a right and credit, which may be attached as the property of the national, and the local compelled to pay, and receive or be entitled to credit with the national for such payment when made. Danza, the treasurer, testified that he had the money in his hands as the property of the national, and whatever may be the rule as to the right of the national to sue the local for the dues, the right of the national to sue Danza as its own agent for money had and received would seem to be fairly clear.

As between the national and the local, we have in this state the decisions in the leading case of National Council v. State Council, 64 N. J. Eq. 470, and several times reported in its various phases. Counsel for appellant maintain that that case decided that' under the conventional relations of the national and local bodies, the national body would not be able to enforce the payment of moneys collected for its account by judicial proceedings. But the general decision in the case as reported in 64 N. J. Eq. is to the contrary, as a read ing of the heaclnote will show. It was a bill to require the payment of money collected, on the theory of a trust in which the local was trustee and the national the cestui; and Vice-Chancellor Pitney held that if the money were actually collected by the local for the benefit of the national, the hill would lie, but that the complainant had failed on its proof. If it could collect in equity under such circumstances, we see no good reason why it should not collect at law; for the very theory of the action for money had and received to the plaintiff’s use is a trust theory. In the present case, it is clear from testimony and admissions that the two organizations were on friendly terms and not at loggerheads as in the cited case; that the treasurer regularly sent forward the checks of the parent association for dues collected for its account; and we think it would be unreasonable to say that in that posture of affairs the parent association could not sue for its own. Deeming that it could, we conclude that the fund was attachable and that the present defendant-appellant was accountable for it to the plaintiff on a scire facias.

The judgment will accordingly be affirmed.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA MILAS, PETITIONER, v. BOUND BROOK CRUSHED STONE COMPANY, RESPONDENT.
    Eor the petitioner, Henry Carless.

    For the respondent, T. Crawford Jamieson, representing Richard W. Baker.

   It being represented to me that counsel for the respective parties consents to the entry of a judgment of $10 per week until the dependent, George Milas, mentioned in the petition, attains the age of sixteen years; the payment of $150 on account of funeral expenses and a counsel fee of $400 to Henry Carless, counsel for the petitioner, one-half of which sum to be paid by each of the parties. The following representations were made to me:

That Anna Milas, the petitioner, was formerly the wife of Michael Bushinsky, by whom she had four children mentioned in the petition as Mary Bushinsky, Catherine Bushinsky, Michael Bushinsky and Julia Bushinsky. Her husband died in September, 1926. George Milas was a boarder at the home of the Bushinsky’s. Anna Milas, the petitioner, about December, 1926, went to live with him on a farm near Bound Brook. The four children of the Bushinsky’s lived there and one or more boarders. On July 12th, 1927, the said George Milas met with an accident while working for respondent, which caused his death at the Somerset Hospital, Somerville, New Jersey, on July 15th, 1927. Just before he died he went through a marriage ceremony at the hospital with the petitioner, which ceremony was performed by Herbert E. Durhan, recorder of the borough of Somerville. On January 16th, 1928, about six months after the death of George Milas, the said Anna Milas gave birth to the child mentioned in the petition as George Milas. The petitioner claimed that she was the common-law wife of George Milas from about December, 1926. The respondent denied this and claimed that it could not be, because he had a wife living in Europe and that during the period between December, 1926, and July, 1927, the said George Milas and Anna Milas did not live together as man and wife. The respondent also claimed that the child born on January 16th, 1928, was not the child of George Milas. Also that the respondent had paid to the petitioner $150 toward the funeral expenses of George Milas and a payment of $200 which it claimed was paid in settlement of all claims against the respondent.

* * ❖ % i',< %

Charles E. Corbin, Deputy Commissioner.


author: Habby J. Gíoas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH WOS, PETITIONER, v. NEW JERSEY WORSTED SPINNING COMPANY, RESPONDENT.

      For the petitioner, Samuel F. Slaff.

    Eor the respondent, Richard W. Balcer.

   •¡< *1» *]' '!> >i*

On behalf of the petitioner, Miss Eva Wos, Mr. Peter Wos, Mr. John Wos and Mr. Edward Asowy were called to testify, as well as Doctors Washington and Drews. At the end of the petitioner’s case the attorney for the respondent moved that the case be dismissed on the grounds that the petitioner had failed to sustain the burden of proving that he suffered an injury by accident arising out of and in the course of his employment, which was responsible for his present condition of paralysis.

After thoroughly going over the testimony in this case I find that the petitioner may have suffered an injury by accident arising out of and imthe course of his employment with the respondent on August 18th, 1937, when he cut his finger of his right hand. I do not find, however, that there is any evidence that he sustained a fall at that time or suffered any other injury other than the trivial injury to the finger for which he was treated at the plant first-aid room.. I further find that the doctors called by the petitioner stated that any cause, even turning over in bed, might be responsible for bringing on a paralytic condition if the man’s underlying condition was right for it. Neither of the doctors called by the petitioner stated that in their opinion the accident would aggravate the petitioner’s condition so as to cause paralysis or even that it was probable, but merely stated that such an accident as alleged might have caused the paralytic condition. Dr. Drew stated that in his opinion if a man suffered an injury of the finger sufficient to bring on the paralysis, it would do so at once and that a man could not work for twenty-four hours thereafter as the petitioner admitted he did in this case. Dr. Washington stated that he did not think that the injury to the finger alleged to have happened on August 18th caused the man’s paralytic condition, although it might possibly have' done so, but he did think that if a man did receive a fall the following day, that could well aggravate a latent condition so as to bring on the paralytic condition.

After carefully analyzing all the testimony in this case, T find that the petitioner has failed to show that he sustained an injury by accident arising out of and in the course of his employment which brought about the paralytic condition .for which he is seeking compensation, as he has at best only proved a mere possibility.

Accordingly, I hereby order that the case be dismissed, without costs to either party.

Habby J. Gíoas, Deputy Commissioner.


author: Haeey J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    MICHELE RIZZO AND TERESA DEVITA RIZZO, BY MARIO VATTANI, ROYAL VICE CONSUL OF ITALY, INTERVENING ON THEIR BEHALF, PETITIONERS, v. KOLMAN LIEB AND GEORGE DASHEVSKY, PARTNERS, TRADING AS LIEB & DASHEVSKY, RESPONDENTS.
    For the petitioners on claim No. 7412, Whiting <& Moore.

    For the petitioners on claim No. 7018, Archie Elkins.

    For the respondents, Collins & Corbin.

   i'.t Jjí i)i ijs £ :j:

I do find and determine from the evidence taken in this case as follows, to wit:

í¡: ^ >(: <:

Third.—That said Domenico Rizzo, while working as a laborer for said respondents at 19 Pingry Place, Elizabeth, New Jersey, on February 4th, 1927, was knocked down an elevator shaft in a building under construction, and died as a result thereof. Said accident arose out of and in the course of said employment.

sfc $ >;« % í’s

Seventh.—That said Domenico Rizzo, at the time of his death, was a subject of Yictor Emanuel III, King of Italy.

Eighth.—That Michele Rizzo, the father of said Domenico Rizzo, and Teresa Devita Rizzo, the mother of said Domenico Rizzo, were both totally dependent upon said Domenico Rizzo, and both reside in Italy.

Ninth.—And I having determined that Michele Rizzo, Tony Rizzo, Frank Rizzo, Teresa Rizzo, Ida Rizzo and Lena Rizzo, nephews and nieces of the said Domenico Rizzo, deceased, were also dependent upon him, as by the determination under said claim petition No. 7018 more fully appears; and it appearing that the total compensation rate to which all of said dependents, in both cases, are entitled, is $17 per week; upon due consideration of all of the evidence, I do find and determine that said compensation of $17 per week should be divided and paid one-half to the petitioners in this case, that is to say, Michele Rizzo and Teresa Devita Rizzo, and the other half to of on behalf of the petitioners under said claim petition No. 7018, so that the petitioners, namely, the said Michele Rizzo and Teresa Devita Rizzo, shall be paid the sum of $8.50 per week for three hundred weeks, beginning February 4th, 1927.

Tenth.—That petitioners in this case are entitled to costs expended for the taking of depositions in Italy in the sum of $11.78, and $5 paid for stenographer’s attendance fee, making total costs of $16.78 and to a counsel fee.

Eleventh.—It appearing that article XVII of the consular convention, concluded May 8th, 1878 (20 U. S. Stat. 725, 732), between the United States and the Kingdom of Italy, provides as follows:

“Article XVII. “The respective consuls general, consuls, vice-consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favored nation.’ ”

And that article XXV of the treaty between the United States and Germany, proclaimed October 14th, 1925 (44 Slat. (Part 3) 2132), provides as follows:

“Article XXV. A consular officer of either high contracting party may, in behalf of: his non-resident countrymen, receipt for their distributive shares derived from estates in process of probate or accruing under the provisions of so-called Workmen’s Compensation laws or other like statutes provided he remit any funds so received through the appropriate agencies of his government to the proper distributees, and provided further that he furnish to the authority or agency making distribution through him reasonable evidence of such remission.”

So that Mario Vattani, Royal Vice-Consul of Italy, at Newark, New Jersey, under the terms of the most favored nation clause contained in article XVII of said treaty with Italy, is entitled to the rights, privileges and prerogatives expressly extended by the United States to consuls and other like officers of the Republic of Germany, by virtue of the terms and provisions of said treaty between the United States and Germany, and is entitled to receipt for moneys accruing to his non-resident countrymen, under the provisions of Workmen’s Compensation laws or other like statutes.

ij* ^ Jjí #

Haeey J. Goas, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner,

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NELLIE KISH, PETITIONER, v. CHIPMAN CHEMICAL ENGINEERING COMPANY, INCORPORATED, RESPONDENT.
   * * * * * * *

There being no dispute concerning the happening of the accident, which resulted in the death of the petitioner’s husband on December 17th, 1927, and it being admitted by the respondent that said accident happened out of and during the course of employment, and the parties thereto and their respective counsel having agreed on the foregoing:

I do find and determine as follows:

The petitioner is the widow of one John A. Kish, who “during his lifetime resided on Jersey avenue, in the city of New Brunswick, and was emploj'ed by the respondent at its plant in Middlesex borough, Bound Brook, New Jersey, in the capacity of watchman and fireman in said plant. At the time of the death of Kish, he left him surviving a wife, the petitioner, six children and a father. One of the children, Mary Kish, was engaged as a telephone operator in the city of Newark, with whom the petitioner resided. Elizabeth Kish, a minor, thirteen years of age, and Margaret Kish, a minor, ten years of age, also resided with them. The decedent resided in New Brunswick and with him lived John Kish, his son, seventeen years of age, and his daughter, Helen Kish, about twenty years of age, and the decedent’s father, John Kish, Sr., a man seventy-two years of age, who depended upon the decedent for his support. The decedent worked seven days a week and earned $33.60 during such period.

The main point in issue in this cause was whether the said petitioner, Nellie Kish, and her two minor children, Elizabeth and Margaret, were dependent upon the decedent for support at the time of his death, and whether they are entitled to participate as dependents in any award that may be granted In this case. The respondent, at the time of the trial, admitted the dependency of the aged father upon his son, the decedent, for support at the time of his death. The Workmen’s Compensation act provides, by section 2, placitum 12 “A” to “G,” inclusive, amended 1927 edition, as follows:

“In (use of death, compensation shall he computed, but not distributed, on the following basis:

“(a) For one dependent, thirty-five per centum of wages.

“(b) For two dependents, forty per centum of wages.

“(c) For three dependents, forty-five per centum of wages.

“(d) For four dependents, fifty per centum of wages.

“(e) For five dependents, fifty-five per centum of wages,

“(f) For six or more dependents, sixty per centum of wages.

“(g) The term ‘dependents’ shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death, namely: Husband, wife, parents, step-parents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous 'child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, he considered as natural children ; provided, however, that dependency shall be conclusively presumed, as to the decedent’s widow and natural children under sixteen years of age who were actually a part of the decedent’s household at the time of his death. Every provision of this act applying to one class shall be equally applicable to the other. Should any dependent of a deceased employe die during ihe period covered by such weekly payments, or should Hie widow of the deceased employe remany during such period, the right of such dependent or such widow to compensation under this section shall cease. It is further provided that the foregoing schedule applies only to persons wholly dependent, and that in the case of persons only partially dependent, except in the case of the widow and children, who were actually a part of the decedent’s household at the time of his death, the compensation shall be such proportion of the scheduled percentage as the amount actually contributed to them by the deceased for their support constituted of his total wages and the provision as to an eight-dollar minimum shall not apply to such compensation. In determining the number of dependents, where the deceased employe was a minor, the number of persons dependent upon said deceased employe shall be determined in the same way as if said deceased employe were an adult, notwithstanding any rule of law as to the person entitled to a minor’s wages.”

It is to be noted that the statute provides that dependency should be conclusively presumed as to dependent’s widow and natural children under sixteen years of age who were part of decedent’s household at the time of his death. Although the widow in this case and the minor children under the age of sixteen years were not members of decedent’s household during his lifetime, still the}7 come within the category of dependents by virtue of the fact that the statute defines dependents as “all of those [hereinabove specifically mentioned] who are dependent upon the deceased at the time of his death.” The fact that the decedent and His wife were living separate and apart does not preclude her from recovering as to one of his dependents. Schmid v. Stanton Forging Co., 6 N. J. Adv. R. 1129, which was certioraried to the Supreme Court, contains the following facts and opinion:

“The decedent deserted his wife, the petitioner, and then she went to live with her oldest son, with whom she resided for sometime. The petitioner, shortly after the separation, took legal proceedings in the courts of Burks county, Pennsylvania, and as a result thereof, an order was made for petitioner’s support by the court, requiring the decedent to pay her $10 per week for the support of herself and a son. The court in that case considered the following question as the sole question for solution: T)id the amendment [Pamph. L. 1923, p. 101] so change .the act as to take the petitioner and widow out of tlie class of total dependents and place her in the class of partial dependents ?’ If so, .the meaning of the statute must he clear and unequivocal, because the Workmen’s Compensation statute is a remedial law of prime import. It should be liberally and broadly construed. Mayor, &c., of Jersey City v. Borst, 90 N. J. L. 454; 101 Atl. Rep. 1033. The court continued with the following reasoning: It may be conceded that the statute is somewhat vague. The prosecutor’s contention is based primarily upon the fact that the amount of compensation which the widow received under the order of the Pennsylvania court determines her status, as a total or partial dependent; this is manifestly unsound, because as a wife she does not necessarily cease to be wholly, i. e., legally dependent on her husband simply because he refuses or fails to perform his entire marital obligations as a husband. It would be quite different if it appeared that the wife voluntarily asserted and definitely maintained her complete independence of her husband. A critical examination of the statute reveals the fact that it does not attempt to define what either Total’ or 'partial’ dependency may be. No standard is set up from which the meaning of these words may be determined as used in the statute. The prosecutor in the case attempted to make the statute read: 'A widow is partially dependent if she is not actually a part of the decedent’s household at the time of his death.’ If this was the intention of the legislature, it should have said, and probably would have said so, in express and unequivocal language. If the petitioner is an actual dependent, she must in law be a total dependent. The degree of dependency, as a fact, ought not to be fixed by the ability of her husband to -avoid the discharge of his legal obligations under this statute. She is, therefore, either a complete wife totally dependent, or no wife at all and not dependent at all. So far as her rights under the statute are concerned, her actual dependency is based on her legal dependency plus her assertion of such legal dependency. It certainly cannot depend upon the amount a court chooses to give her or her husband chooses to pay her, even though she is not actually a part of decedent’s household at the time of his death. The Pennsylvania court in granting the above $10 a week for her support did not say there she was a partial dependent. The court, therefore, dismissed the writ of certiorari and affirmed the award of the compensation bureau in favor af the petitioner Schmid.”

In the instant case it is my opinion and belief that the petitioner is in ■ a somewhat similar position, as the petitioner in the Schmid case. In the instant case there was testimony to the effect that the petitioner had left her husband after some disagreement between them; that sometime afterwards her children had come to live with' her and for several years the decedent had contributed small sums to the petitioner and her children; that he had at times visited them in their home in Newark, New Jersey, and had bought them food and clothing. As regards the children, therefore, considering the reasoning of Mr. Justice Black in the Schmid case, the minor children are in every respect dependents on the decedent, as they, who have no will or say in the relations between husband and wife, surely cannot be placed in a position of a wife who voluntarily leaves her husband and maintains a complete independence. Certainly, children, innocent victims of circumstances, are not legally bound by disputes between husband and wife. The children were at all times dependent for food and clothing upon the decedent, and the decedent was at all times obligated by law to support and provide for them. There is no doubt that the decedent did contribute small sums from time to time during the period husband and wife were living separately, for the support of' the wife and minor children. The wife, therefore, may not be placed in-the category of'being either wholly dependent' upon her husband nor completely independent of him. Following the reasoning of the Schmid case, however, it may be said that she is in a position somewhere between that of a wife who voluntarily asserts her independence to the exclusion of her husband, and a wife who is entirely dependent upon her husband for support. Although the dependency of the aged father, John Kish, Sr., was admitted by respondent and -the two minor children may be classed as total dependents, the wile, however, cannot be classed as a total dependent, but may be classed as partially dependent upon her husband, so as to entitle her to limited benefits.

The act in regard to distribution oí compensation in paragraph “II” of placitum 12, section 2, reads as follows: “Compensation shall be computed upon the foregoing basis [referring to paragraphs TV to ‘G,’ inclusive). Distribution shall be made among dependents, if more than one, according to the order of the workmen’s compensation bureau, which shall, when applied to for that purpose, determine upon the facts being presented to it, the proportion to be paid to or on behalf of each dependent according to the relative dependency. Payment on behalf of infants shall be made to the surviving parent, if any, or to the statutory or testamentary guardian.” In view of this paragraph, I have seen fit to make distribution as set forth in the order following:

It is, therefore, ordered that compensation be paid as follows : For the benefit of the decedent’s father, wife and his daughters, Elizabeth and Margaret, compensation at the rate of forty-six and one-fourth per cent, of decedent’s weekly wage of $33.60, amounting to $15.54, covering the period from the date of the accident to April 30th, 1930, a period of one hundred and twenty-three and four-sevenths weeks, at which time the infant daughter, Elizabeth Kish, will reach the age of sixteen years; thereafter, for the benefit of the father, wife and Margaret Kisli, compensation shall be paid at the rate of forty-one and one-fourth per cent, of decedent’s weekly wage of $33.60, amounting to $13.86, for a period of one hundred and fifty-three and five-sevenths weeks, until April 10th, 1933, at which tilne Margaret Kish will reach the age of sixteen years; after this for the benefit of the father and widow, compensation shall be paid at the rate of thirty-six and one-fourth per cent., amounting to $12.18 per week for twenty-two and five-seventh weeks, until September 15th, 1933, which will conclude the three hundred weeks’ period provided by law; the sum of $150 is to be paid for burial expenses; a counsel fee of $400 is to be paid to Harry Spitzer, attorney for petitioner, $250 by respondent and $150 from the portion payable to the widow and father, John Kish, Sr.; costs of suit are allowed in the sum of $11 to cover stenographer and subpoena fees.

It is further ordered that of the weekly rate of $15.54, the father shall receive $5 a week and the balance of $10.54 shall be paid to the wife and children; of the rate of $13.86, the father shall receive $6 a week and the widow and Margaret Kish, $7.86; of the weekly rate of $12.18, the father shall receive $7 and the widow $5.18. Petitioner and John Kish, Sr., are to he paid all arrearages now due in a lump sum.

It is further ordered that the respondent pay $150 to the proper person on account of funeral expenses, and a counsel fee to the petitioner’s attorney in the sum of $250. The petitioner’s attorney,is also entitled to receive the sum of $150 from the accumulated compensation, one-third of which is to be paid by the father, John Kish, Sr., and two-thirds by the widow.

W. E. Stubbs, Deputy Commissioner,


author: Charles E. Ookbik, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM MOFFETT, PETITIONER, v. KEYSTONE TELEPHONE COMPANY OF PHILADELPHIA, RESPONDENT.

      Eor the petitioner, Harold W. BennelL

    For the respondent, Floyd H. Bradley.

   The above matter coming on for formal hearing before me and for decision, I hereby find and determine as follows:

* * * * * *

2. That the petitioner was employed by the respondent as a lineman for the period of about three years before the date of the accident hereinafter set forth, and his duties consisted of those of a lineman.

3. That the petitioner at the time of the injury received for his services wages amounting to $23.40 per week.

4. That on the 22d day of November, 1925, the petitioner sustained personal injuries as the result of an accident at Brown and Monmouth streets, Gloucseter city, Camden county ; that the accident consisted of a fall by the petitioner from a height of about twenty feet from a line pole to the ground, when a guy wire forced open the buckle and snap of his safety belt; and that the accident arose out of and in the course of petitioner’s employment.

5. That the respondent had actual knowledge of the occurrence of said injury.

6. That as a result of said injury it is admitted the petitioner sustained a fracture of a bone in the left elbow, a fracture of a small bone in the left wrist and a fracture of two small bones in the left foot, which said injuries were temporary in their nature, and have cleared up in due course. The petition herein alleges that the petitioner was not able to resume his regular work again and that his permanent injury was an “extreme nervous condition.” Several informal hearings were had before Harry E. Monroe, referee, and during part of which time the respondent had been unsuccessful in getting the petitioner to return to work although he was given very light duties. It was finally suggested by Beferee Monroe, that the petitioner be examined by Dr. Ered C. Becker, a neurologist connected with the Cooper Hospital, in Camden. This examination was had by Dr. Becker in May, 1926, and he found that, the petitioner had no organic disease but was suffering from hysteria. Dr. Becker made a recommendation that the petitioner return to work, that his compensation cease and he be paid only for work he actually performed. This plan was tried but was not successful. It also appears that during the month of October, 1926, the petitioner was injured while working for the Alva Carpet and Rug Company, of Frankford, Pennsylvania, when he slipped or fell, thereb}'- fracturing a rib. Dr. E. II. Thompson, of Philadelphia, treated the petitioner during the period of this injury, and while testifying at this trial, stated that he had known the petitioner and his father for years and was positive in his assertion that there was nothing the matter with the petitioner except he was suffering from “compensation neurosis.” .The testimony also shows that the petitioner worked for the respondent during some parts of the months of June, July, August and September, 1927, even after this petition was filed. At the further suggestion of Referee Monroe, the respondent had Dr. S. P. Gilpin, a neurologist of Philadelphia, examine the petitioner on February 10th, 1927. Dr. Gilpin found the petitioner had no organic disease but that his trouble was mental and his spells were hysteria. Both Dr. Gilpin and Dr. Becker made another examination during the hearing and their testimony at trial confirmed their. respective findings of their previous examination. Dr. Ross H. Thompson, who testified on behalf of the petitioner, diagnosed his trouble as “traumatic neurosis plus something else,” although he admitted that the petitioner had no symptoms peculiar to traumatic neurosis. The indefinite nature .of this testimony convinces me that this last-named physician was mistaken in his diagnosis. The medical testimony leads me to conclude that neither at the date of the filing of this petition nor since, has the petitioner been suffering from any organic disease as a result of said accident.

7. Prom a careful study of all the evidence in this case, I hav.e come to the conclusion. that the petitioner is. simulating the greater portion, if not all, of his alleged present condition. I am convinced that he is of a very highly nervous type of man and possibly the accident which he suffered was in some degree a shock to his nervous system. There is very serious doubt in my mind whether the petitioner ever sustained any permanent disability as a result of this injury. It appears from the records, however, that the petitioner was on temporary disability for the period of twenty-eight and one-third weeks at $15.60 per week, and received from respondent a voluntary payment made in addition thereto and on account thereof of $166.40, and was also placed on six per cent, permanent disability amounting to thirty weeks at $15.60 per week, for which the doctors termed “psycho neurosis or hysterical condition,” which period of permanent disability expired January 5th, 1927, but that he was carried on voluntary compensation by respondent until February 19th, 1927. I am of the opinion and find as a fact that the above temporary and permanent disability which the petitioner has heretofore received from the respondent fully compensates him for any and all disabilities that he may have suffered as a result of the said accident. I am therefore of the opinion that the petition filed by the petitioner herein should he dismissed.

íjí í¡í i\i í|í

Charles E. Ookbik, Deputy Commissioner.


author: Charles E. Corbih, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SALVATORE SICA, PETITIONER, v. BETZ BROTHERS, RESPONDENT.
   A petition having been filed on or about the 13th day of March, 1928, by the above-named petitioner, Salvatore Sica, praying for a determination of his rights to workmen’s compensation under the Workmen’s Compensation act, approved April 4th, 1911, and acts supplemental thereto, and the respondent, Betz Brothers, having filed an answer to the said petition and said case having been duly noticed for hearing and come on for a hearing before Deputy Commissioner Charles E. Corbin, and at the hearing of said petition the respondent having contended that the petition should be disallowed because the petitioner failed to prove such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the alleged accident, and the petitioner having testified at the hearing held July 27th, 1928, in his own favor, giving testimony attempting to establish the fact that he sustained a traumatic hernia while performing work in the course of his employment by the respondent herein, and the respondent having produced no witnesses to deny the facts set forth and testified to by the petitioner, and after hearing argument bjr counsel for the petitioner and respondent upon the law applicable to the case and all parties having been present at the authorized hearing or having been properly represented by counsel.

Now, after due deliberation, I am forced to conclude that the petitioner has failed to establish that he sustained a traumatic hernia arising out of and in the course of his employment and that he failed to establish that he suffered such physical distress at the time of the alleged accident that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.

iji ífc >!« s£ #

Charles E. Corbih, Deputy Commissioner.


text:
    SIDNEY COOPER, RESPONDENT, v. AL GOLDMAN, APPELLANT.
    Decided July 29, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Wallace P. Berkowilz.

    Fox the respondent, Gross & Gross.

   Per Curiam.

The plaintiff’s assignor sold merchandise to the defendant on a contract, and when the time for payment arrived the defendant defaulted and an action in the Hudson County Court of Common Pleas was commenced.

The defendant answered, alleging the goods were defective and counter-claimed for breach of warranty. The plaintiff moved to strike the answer and counter-claim and for the entrance of summary judgment on the ground that the answer was false and the pleadings sham. The trial judge granted the plaintiff’s motion. Thirteen days after the motion was granted the defendant filed certain affidavits tending to show that it had a defense on the merits, and purporting to be in answer to the plaintiff’s motion affidavits. A notice of appeal, was also served. The trial judge expunged the defendant’s affidavits from the record.

Since the affidavits have been expunged from the record they are not before us, and there is nothing before us to show that they were before the 'trial judge or that the entry of summary judgment was not in all respects proper. Larner v. Montclair, 99 N. J. L. 510; 2 N. J. Adv. R. 411.

The judgment below will therefore be affirmed.


text:
    H. ROMAYNE PECK, RESPONDENT, v. ANDREW P. FOOTE, APPELLANT.
    Decided July 29, 1929.
    Before Justices Parker, Black and Bobine.
    For the respondent, William F. Gorman.

    For the appellant, Grijfinger cG Grijfinger.

   Per Curiam.

This is an appeal from the Montclair District Court, where a judgment was entered upon the verdict of a jury in a suit for the recovery of real estate commissions. The memorandum on which the action was predicated was in writing and complies with the statute of frauds.

The first point raised by the appellant is that the court should not have received in evidence a conversation had between the broker’s agent and the purchaser of the property. An examination of the record shows that this conversation related merely to the circumstances incident to showing the prospective purchaser the property which he afterwards purchased. It tended to prove performance, and, hence, there was no error in its receipt.

The second point relates to the receipt in evidence of the memorandum in writing by which the seller was charged with the commissions. The proofs show that this memorandum was properly proved and the circumstance that it contained other data is perfectly immaterial.

The third point relates to the exclusion of evidence concerning the monetary returns of Blocksom, the real estate broker’s employe, in the transaction in which he effected the sale. We cannot, in this case, see the materiality of such evidence.

The other points argued in the brief deserve no other consideration.

The judgment below must be affirmed, with costs.


text:
    BARBARA ABBRUZZESE, PLAINTIFF, v. JOHN GAYNOR, CHARLES L. CANGIANO, MARCELLO ABBRUZZESE AND ALMA ABBRUZZESE, DEFENDANTS.
    Decided July 29, 1929.
    Before Justices Parker, Black and Bodixe.
    Eor the plaintiff, McCarthy & McTague.

    Eor the defendants Marcello Abbruzzese and Alma Abbruzzese, Heine, Bradner & Laird.

    Eor the defendants John Gaynor and Charles L. Cangiano, Schneider & Schneider.

   Pee Curiam.

This case arises out of an automobile accident which occurred on August 14th, 1927, on the Hudson Boulevard, in Jersey City, at the intersection of Newark avenue. The plaintiff was an invitee in the automobile of the defendant Alma Abbruzzese, and is hence not chargeable with contributory negligence. The jury found in her favor.

. The present rule raises the question as to whether the verdict against John Gaynor and Charles L. Cangiano, the owner and driver of the bus, was against the weight of evidence. The testimony in the case indicates that the Abbruzzese car had come to a stop by reason of the traffic signal being against it. When the traffic light changed the driver of the Abbruzzese car and another testified that he indicated to the traffic officer that he desired to make a left-hand turn and that the officer then signaled for such turn. While making this turn the Abbruzzese car was struck by the bus. There was testimony in the case that the officer gave no such signal and that the driver of the Abbruzzese car attempted to cross in front of the bus and in doing so the accident occurred. The jury might have found either way from the testimony adduced. Hence, the court cannot disturb the finding. Boesch v. Kick, 97 N. J. L. 92, 97.

The rule will be discharged.


author: Pee Cukiam.

text:
    COLLINGSWOOD COAL AND LUMBER COMPANY, APPELLANT, v. WILLIAM S. FOX, RESPONDENT.
    Submitted January 26, 1929
    Decided July 25, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.

      For the appellant, Philip Wendkos.

    For the respondent, A. Moullon McNutt.

   Pee Cukiam.

This is an appeal from a judgment of the Camden District Court in favor of defendant, entered upon the verdict of a jury.

The plaintiff landlord sued to recover rent alleged to be due from defendant, tenant, and also for a charge for heating the premises.

The controversy at the trial seemed to turn upon the question whether or not the notice of intention to vacate was reasonably given by defendant. If that question was in tended to be raised on this appeal the appellant apparently failed to carry out that intention. As we read the only specification of cause for reversal it presents no ruling of the court in the trial of the case, or in the charge of the court, or refusal to charge, to which exception or objection was taken.

The specification is as follows:

“Upon the facts represented the District Court should have found as a matter of law that (a) there was no testimony that the defendant, William S. Fox, serve notice upon the plaintiff or its president, Henry L. Bialy, of his intention to vacate in accordance with the statute in such case made and provided; (b) there was no testimony or evidence to show that defendant had given plaintiff one month’s notice in writing of his intention to vacate the demised premises.”

There was apparently a verbal request to charge which the court refused and allowed an exception. Counsel for plaintiff1 was allowed also the privilege of taking any exception he saw fit to the charge, but these are not made the subject-matter of specifications of causes for appeal.

The judgment will be1 affirmed, with costs.


author: Per Curiam:.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ING KEE AND SAM MOY, PLAINTIFFS IN ERROR.
    Submitted May 17, 1929

    Decided July 26, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiffs in error, George B. Gutley.

    For the state, John Drewen, prosecutor of the pleas.
   Per Curiam:.

The plaintiffs in error were convicted of atrocious assault, and seek to reverse the conviction. The only assignment or specification laid before us as a ground of reversal challenges a paragraph of the charge relating to the claim of alibi interposed by the defendants. It does not include all of the charge on that subject, and on well-settled principles, all should be read together. The following is the complete charge on that point:

“There has also been presented in this case an alibi, and the alibi applies particularly to Sam Moy, but I think it also affects Ing Kee. I shall read to you what the law saj’s you may use in your determinations in considering an alibi as a defense to an accusation.

“Absence from the scene of the crime is not an unreasonable position for those charged with crime to take, and it is sometimes the easiest and surest way of escape, though escape, by this means, frequently involves criminal contrivance and perjury on the part of the accused. While the defense of alibi may be thus abused, it is nevertheless a legal defense and a most complete one, when truthfully and fully established. The fact that an alibi can be presented as the result of perjury and connivance imposes upon the jury the duty of carefully weighing and scrutinizing the testimony, which is offered, establishing it.

“No better rule can, perhaps, be prescribed as to what weight must be given to testimony to successfully establish an alibi or to make it effective as a defense than this—that it must be of such force as to create a reasonable doubt of the defendant’s guilt as made out by the state. The state is required to make out a ease of guilt beyond a reasonable doubt, before a conviction can legally be had.

“It follows, therefore, in this case, that if the state has by the proofs made out a clear case against the defendant—and they (the defendants) rely upon the defense of an alibi— they must, in order to escape conviction, establish such alibi by such evidence and to such a degree as will, when taken and considered together with all the rest of the evidence in the case, create in your minds a reasonable doubt of their guilt.”

It is the last paragraph, beginning: “It follows, therefore,” that is attacked as erroneous.

We deem it needless to consider it as standing alone. Taken with what precedes it, the plain purport is that if, in the language of the first lieadnote of State v. Parks, 96 N. J. L. 360, “the personal presence of the defendant at the scene of the alleged crime is an essential of his guilt, and the defense of alibi is interposed, defendant is entitled to an acquittal if the testimony creates such a degree of uncertainty as to his whereabouts that the jury are not satisfied beyond a reasonable doubt of his guilt.”

Such in our estimation, though at considerably greater length, was the effect of the charge, which might well have been compressed into the authoritative language of the Court of Errors and Appeals in the case cited.

The judgment will be affirmed.


text:
    IRVIN KNUDSON v. MILTON SCHWARTZ.
    Submitted May 17, 1929
    Decided July 26, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, Louis P. Sellyei.

    For the defendant, Samuel PL. Berlin.

   Pee Curiam.

The case arises out of a collision at one-thirty a. ji. at the crossing of New Brunswick avenue and Convery Place, in Perth Amboy, between a Ford milk truck, operated by plaintiff and proceeding westerly on New Brunswick avenue, and a Durant sedan driven bjr defendant, coming northerly on Convery Place from the Raritan bridge. Plaintiff was on his way to Raritan township with a load of milk in bottles to make his early morning deliveries. Defendant had his wife with him, and the two were on their way from the shore to their home in Union county. Plaintiff brought suit, laying the venue in Middlesex, and defendant did likewise, laying the venue in Union, but the two actions were consolidated for trial. The jury found against defendant on his claim, and in favor of Knudson in the present suit, awarding him a verdict of $3,000, which is attacked as against the weight of evidence, and excessive.

We conclude that it was against the weight of evidence, without giving any special consideration to the amount. It is true that Knudson claimed that he had come within a foot of a full stop and that Schwartz caught the front of his truck in passing. But the jury plainly disregarded the convincing evidence of Schwartz’s car, which showed no injury in front or rear, but the plainest possible marks of a heavy blow squarely in the middle of the right side, a smashed runboard and deeply dented right front door. It is quite obvious that the truck was moving, and at considerable speed, and this is confirmed by the fact that it was caught firmly enough in Schwartz’s car to be swung completely around to its right, facing back to Perth Amboy. Whatever be the negligence of Schwartz in crossing New Brunswick avenue at a rate of speed sufficient to move a loaded truck in this manner, Knudson admits that he saw it coming, and coming “so fast that he knew he could not make it across in front of it.” He adds that he put on his brakes and stopped—the mute evidence of Schwartz’s car shows that he did not. The case seems clearly to present a situation in which, admitting that Knudson had the right of waj', which may well be the case, it was obvious to him that Schwartz was not going to respect his rights— and in that situation he was guilty of contributory negligence by going on. Connolly v. Public Service Railway Co., 94 N. J. L. 157. Knudson’s case is not helped by his knowledge that Convery Place was the main road from the Jersey shore and that the crossing of this road with the main road between Perth Amboy and New Brunswick was inherently dangerous.

The rule will be made absolute.


text:
    MARIO FOGLIO ET AL., RELATORS, v. MAYOR, ETC., CITY OF UNION CITY ET AL., RESPONDENTS.
    Argued May 1, 1929
    Decided July 18, 1929.

      Before Justices Mintuen, Black and. Campbell.
    For the relators, Robert H. Brenner.

    For the respondents, Andreiv 0. Wiltreich.

   Pee Curiam.

This is an application for a mandamus to compel the issuance of a building permit to relators to make certain alterations to a presently existing building on 100 New York avenue, in the city of Union Citjr, by moving such building forward to the street line, from which it noAV sets back thirty feet, and building an addition thereto.

We find nothing in the facts before us legally justifying the refusal to issue the permit in question and an order for the issuance of a peremptory mandamus as prayed for may be taken and entered.


author: Peb Ctjbiam.

text:
    OLYMPIC SILK MILLS, INCORPORATED, A CORPORATION, APPELLANT, v. WASHINGTON PIECE DYEING AND FINISHING COMPANY, INCORPORATED, A CORPORATION, RESPONDENT.
    Submitted January 26, 1929
    Decided July 25, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.

      Eor the appellant, Hudson <£• Joelson (Addison P. Rósenle runs, of counsel).
    For the respondent, A brum I. Bluestein.

   Peb Ctjbiam.

This is plaintiff’s appeal from a judgment of the Passaic County Circuit Court in favor of the defendant in an action of replevin.

The plaintiff delivered to the defendant certain silk goods for dyeing purposes. The defendant dyed the goods and returned them to the plaintiff. Subsequently the plaintiff shipped other goods to the defendant for dyeing. Thereafter the plaintiff demanded the return of the latter goods, and the defendant demanded payment for the dyeing theretofore done for the plaintiff, setting up its lien under the Dyers’ Lien act.

In his opening the plaintiff’s attorney admitted dyeing charges of the defendant, Washington Piece Dyeing and Finishing Company, Incorporated, in the sum of $5,391.18, but claimed that oil previous shipments the dyeing had been imperfect to the plaintiff’s loss of $3,157.63, leaving a balance of $1,634.15, which he said defendant had refused to receive.

On this opening a motion .was made for a d irected verdict in favor of the defendant on the ground that the plaintiff had admitted dyeing charges to the extent of $5,391.18, for which charges the defendant was asserting its right to possession under the Dyers’ Lien act, which motion was granted.

We think that the trial court properly directed a verdict in favor of the defendant for the reason that, as we think, the Dyers’ Lien act entitled the defendant to possession of the goods for an undisputed amount of dyeing charges.

Section 2 of chapter 288 of laws of 1926 reads as follows:

“All persons or corporations engaged in the business of spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, printing, finishing, dressing or scraping linen, cotton, wool, silk, artifiicial silk, skins, pelts, furs or hides or goods of which linen, cotton, wool, silk, artificial silk, skins, pelts. furs or hides form a component part, shall be entitled to a lien upon the goods or property of others that may come or may have come into their possession for the purpose of being spun, thrown, manufactured, bleached, mercerized, dyed, printed, finished, dressed or scraped for the amount that may be due to them from the owners of such linen, cotton, wool, silk, artificial silk, skins, pelts, furs or hides for a component part by reason of any work or labor performed or material furnished in and about the spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, printing, finishing, dressing or scraping or otherwise treating or processing of the same or other goods of such owner or owners.”

In other words, the statute confers upon the dyer an unequivocable lien upon goods in his possession to the extent of “the amount that may be due * * * by reason of * * * dyeing (the goods in possession) or other goods of such owner,” &c.

But if we are wrong in our construction of the statute or as to its application to the opening of the attorney of the plaintiff, still we do not perceive that the plaintiff can be heard to complain, and for this reason: It appears that the goods in question had been taken into possession by the plaintiff, and, after direction of a verdict for the defendant, proceedings were had on a writ of inquiry, and it is stipulated that thereupon the attorney then representing the plaintiff agreed “that the amount of damages to be assessed is the amount for d3reing due and owing * * *, being $5,391.78, and interest charges being $296.45, making a total amount of $5,688.23, and costs in the replevin suit being assessed at the amount of $43.93, making a total amount of costs and damages of $5,732.16, and agrees that a rule for judgment in this amount be entered.”

Now when we look at the judgment from which this appeal is taken we find that it is entered in strict accordance with the stipulation set forth.

■The judgment will be affirmed, with costs.


author: Pee Cubiam.

text:
    MARJORIE S. NORTON AND WILLIAM J. NORTON, RESPONDENTS, v. COUNTY OF BERGEN, APPELLANT.
    Submitted January 26, 1929
    Decided July 25, 1929.
    Before Justices Tkenchaed, Kalisch and Iiloyd.
    For the appellant, Stanton T. Lawrence.

    For the respondent, De Turclc & West.

   Pee Cubiam.

This action was brought by the plaintiffs against the defendant to recover judgment for damages alleged to have been sustained as a result of the plaintiff Marjorie S. Norton, stepping -into an opening which existed in the south passage walk of the Anderson street bridge, in the city of Hackensack, at the point where the movable span joined the stationary part of the bridge.

The case was tried before the judge, sitting without a jury, and he rendered judgment for the plaintiffs.

From the evidence the trial judge found as follows:

“I find from the testimony in this case that on November 1st, 1921, the plaintiff Marjorie S. Norton was walking westerly over the south passage walk of the Anderson street bridge, in the city of Hackensack, Bergen county, and at the point where the stationary part meets the movable span of said bridge, her left foot and leg slipped through an opening which then existed between said stationary and movable span of said bridge; that on said November 1st, 1927, and for a long time prior thereto, and under the provisions of chapter 185 [Pamph. L. 1918], the board of chosen freeholders of Bergen county, the defendant herein, was chargeable by law with the construction, erection, rebuilding or repair of said Anderson street bridge; that the said bridge was so negligently constructed, rebuilt or in such negligent condition of repair as to permit the said opening to exist, resulting in said accident and damages. I find that the plaintiffs were free from contributory negligence. I further find that the plaintiff Marjorie S. Norton sustained damages in the sum of four hundred [$400] dollars, and the plaintiff William J. Norton sustained damages in the sum of seventy [$70] dollars.”

Judgment was rendered for the plaintiff Marjorie S. Norton for $400 and for plaintiff William J. Norton for $70.

We see no reason to disturb this judgment.

The statute {Pamph. L. 1918, ch.: 185, arL. 13, § 1309) reads:

“In all cases where the board of chosen freeholders of a county, or boards of chosen freeholders of two or more counties, are chargeable by law with the construction, erection, rebuilding or repair of any viaduct or bridge, and the said board or boards shall wrongfully neglect to perform- their duty in that behalf, by reason whereof any person or persons shall receive injury or damage in his, her or their persons or property, such person or persons may bring an action at law against said county or counties and recover judgment to the extent of all such damage sustained as aforesaid.”

The defendant county argues that there should have been a nonsuit or a verdict directed for the defendant on the ground, which was urged on such motions at trial, that there was no evidence of “wrongful neglect” upon the part of the county, to which is added the argument that the judgment should have been for the defendant.

We are not impressed with these arguments.

We think the question whether or not there was wrongful neglect upon the part of the defendant in respect to the construction or repair of the bridge was, under the evidence, properly a question of fact for the determination of the trial judge, and that his finding upon that topic against the defendant is supported by the evidence. It was open to the judge, if he saw fit, to conclude from the conflicting evidence that the defendant left an opening about four and one-half inches in width at the point in the passage walk where plaintiff naturally walked and into which her foot and leg sank up to the knee, to her considerable injury. The question whether or not that was usual or proper construction was, under the evidence, for the. determination of the judge, since he was sitting without a jury, and his conclusion that it was not seems to find support even in the testimony of the engineer called by the defendant.

The judgment will be affirmed, with costs.


author: Per Curiam.

text:
    MARY LEGAC, RESPONDENT, v. VIETMEYER BROTHERS, INCORPORATED, A CORPORATION, APPELLANT.
    Submitted January 26, 1929
    Decided July 25, 1929.
    Before Justices Tkenchaed, Kalisch and Lloyd.

      Eor the appellant, McDermott, Enright & Carpenter {James D. Carpenter, of counsel).
    Eor the respondent, John J. Fallon, Jr.

   Per Curiam.

This is the appeal of the defendant below from a judgment of the Hoboken District Court, in favor of the plaintiff, rendered by the judge, sitting without a jury.

The plaintiff instituted suit against the defendant alleging as follows: That on July 25th, 1927, the plaintiff purchased a loaf of defendant’s bread from a retailer; that the plaintiff sliced the bread for use at her table; that while eating, or about to eat, one of the slices, she discovered therein or thereon a bug; that plaintiff, upon seeing the bug, became sick to her stomach, vomited, and was sick for some five days thereafter. The evidence at the trial tended to support such allegations. It appeared also that the plaintiff had had one or more operations which made her stomach somewhat weak.

The court refused defendant’s motion for a nonsuit, and defendant took an exception, and that action of the trial judge is stated as a ground of appeal.

We think that the court erred in refusing the defendant’s motion for a nonsuit under the rule laid down in Ward v. West Jersey and Seashore Railroad Co., 65 N. J. L. 383. There the plaintiff was allowed to drive upon defendant’s railroad tracks at a crossing, and defendant thereupon lowered the gates. The plaintiff was frightened and shocked through fear of being struck by an approaching train and as a result suffered physically. Chief Justice Gummere, in his opinion therein, says:

“The question which the demurrer presents is this: Whether, in an action for negligence, the mere apprehension of personal injuries, which are not in fact received, will support an action, when physical suffering follows as a consequence of the mental disturbance.

“It seems to be universally conceded that mere fright from which no subsequent physical suffering results,- affords no ground of action; but, in cases where physical injuries follow therefrom, the decisions are not harmonious. In my judgment, however, those cases which hold to the view that there can be no recovery for such injuries, rest upon sound legal principles, and should be followed.”

After citing authorities, the Chief Justice continues:

“The doctrine of non-liability affirmed in the several opinions already referred to, rests upon the principle that a person is legally responsible only for the natural and proximate results of his negligent act. Physical suffering is not the probable or natural consequence of fright, in the case of a person of ordinary physical and mental vigor; and in the general conduct of business, and the ordinary affairs of life, although we are bound to anticipate and guard against consequences, which may be injurious to persons who are liable to be affected thereby, we have a right, in doing so, to assume, in the absence of knowledge to the contrary, that such persons are of average strength both of body and of mind.”

Here there was no proof of knowledge by the defendant that plaintiff was not of average strength of body and mind.

Again in Justesen v. Pennsylvania Railroad Co., 92 N. J. L. 257, Chief Justice Gummere, speaking for this court, said:

“In the second place, although physical sickness may result from mental worry produced by the wrongful act of another, it is not a necessary or natural consequence of the mental condition, and so cannot be said to be the pi’oximate consequence of the wrong done. Ward v. West Jersey and Seashore Railroad Co., 65 N. J. L. 383; Butler v. Hoboken Printing and Publishing Co., 73 Id. 45, 50.”

The judgment will be reversed.