text:
    MARGARET WILLIAMS AND JOHN WILLIAMS, PLAINTIFFS-RESPONDENTS, v. HUDSON AND MANHATTAN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Collins & Corbin (Edward A. Markley, of counsel).
    For the respondents, Alexander Simpson.

   Per Curiam.

This is the defendant’s appeal from a judgment against it in the Hudson Common Pleas. Mrs. Williams was a passenger on a car of the defendant, Hudson and Manhattan Railroad Company. When she got off at Grove street, Jersey Cityr, her leg was caught by the premature closing of the car door and went through the space between the car and the platform and was injured. Por the damages consequent upon the injuries suit was instituted by her and her husband.

There had been a previous trial and on a rule a new trial granted as to damages only. On the retrial a verdict was awarded to Mrs. Williams for $500 and to the husband for $125.

The first, second and third points argued in appellant’s brief are that the trial judge refused to limit the negligence of the defendant to the premature closing of the door and in excluding as an element of negligence the spacing between the car and the platform. The relation of the car and platform was not in issue. The only element of negligence alleged in the complaint was that the defendant failed to afford to the plaintiff sufficient time to alight from the car, but negligently and without warning closed the door against her, thereby causing the injuries complained of. And this issue the trial judge submitted to the jury in language which left no doubt that that was the sole basis upon which the plaintiff could recover.

The fourth point is that the court erred in instructing the jury that the defendant was “under the duty of affording a reasonable opportunity for this plaintiff to alight,” and it is urged that under the cases of Foley v. Brunswick Traction Co., 66 N. J. L. 637; Mason v. Erie Railroad Co., 75 Id. 521; and Olsofrom v. North Jersey Street Railway Co., 81 Id. 321; this was error because the court omitted to say that the defendant was under a duty only to use “reasonable care” to afford the plaintiff an opportunity to alight.

As applied to the facts of this case we think the omission was not error. The cases cited deal with passive conditions for which the defendant might or might not .be responsible. In the present case the negligence of the defendant, if it existed, consisted wholly in the affirmative act of the defendant’s servant in causing the plaintiff to fall by reason of the premature closing of the door, and the charge in effect meant that it was the duty of the servant to avoid such improper closing. In view of these facts the ground of complaint under this head is hypercritical and does not justify reversal. Particularly is this so when in the charge it was immediately added that if the jury found that the door was shut upon the plaintiff it was for it to say whether or not the defendant company exercised the degree of care already defined.

It is next contended that the trial court erroneously applied the rule that the defendant being a common carrier of passengers was obliged to use the highest degree of care and that the defendant was liable for the slightest negligence. Appellant’s brief does not correctly quote the charge in this respect in that it left out the words, “that a reasonable man would use,”- immediately following the word “care.” The ground of complaint seems to be that inasmuch as the train was not moving at the time the accident happened, and the negligence, if such there was, consisting of the premature closing of the car door, the rule of ordinary and reasonable care was applicable. It was the conduct of the defendant’s servant in the course of transportation that gave rise to the plaintiff’s cause of action and the higher standard was applicable.

It is next contended that on the second trial the court refused to permit counsel to examine the plaintiff on the incidents happening at the time of the accident, contending that these were admissible as bearing upon the plaintiff’s injuries. We fail to see that the defendant has suffered any injury by any ruling complained of under this head.

It is finally urged that the court erred in failing to instruct the jury to disregard certain remarks made by counsel for the plaintiff in his argument to the jury. At the request of counsel the learned judge promised to take care of these remarks in his charge. This we think the court did in substance when it told the jury they must take the evidence solely as their guide and that the arguments of counsel formed no part of their consideration of the case. At all events defendant’s counsel, apparently taking the same view, took no exception to the court’s failure to admonish the jury further and the question is not before us.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ABRAM E. LEWIS, PLAINTIFF-APPELLANT, v. HERMAN C. SCHLICTING, DEFENDANT-RESPONDENT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Geran & Matlack (Isaiah Matlack, of counsel).
    For the respondent, Quinn, Parsons & Doremus.

   Per Curiam.

The plaintiff sued to recover damages for breach of a written contract between himself and the defendant, Schlicting, and there was a verdict and judgment in favor of the defendant on a counter-claim. From the judgment the plaintiff appeals.

The contract between the parties was dated February 16th, 1925, and called for the sale by Schlicting to Lewis for the consideration of $23,875 of a lot of track rails that had formerly belonged to the Central Traction Company. The plaintiff’s contention was that the defendant had failed to carry out his bargain and that plaintiff suffered a loss in consequence. The contract recited the receipt of $1,000 as a binder and called for payment of the balance of the purchase price on March 1st, 1925.

According to the defendant’s proof, the plaintiff insisted upon the production of a bill of sale from the defendant’s vendor, the Central Traction Company, also evidence of the approval of the public utility commission of the sale by the traction company to the defendant, and that not receiving these, the plaintiff stopped payment on the check and insisted upon compliance with these conditions before carrying out the contract.

The defendant waited until the 5th of March, when nothing further being done by the plaintiff looking to payment of the purchase price, defendant sold the rails to a third party and in the present case filed a counter-claim for a loss resulting from such sale.

The first point raised on the appeal is that the court should have dismissed the defendant’s counter-claim on the grounds —first, that there was no proof of a tender by him of a bill of sale, and second, that the defendant had shown no damages. These grounds are not now open to appellant. A rule for new trial was allowed by the trial court, and one of the reasons assigned, argued and passed on in the rule was that the verdict was against the weight of the evidence. Such being the case it cannot now be urged that there was no evidence to support the jury’s finding. Catterall v. Otis Elevator Co., 4 N. J. Mis. R. 557.

The second point is that the trial court improperly charged the jury that the contract was clear and explicit and no terms could be imported into it except as appeared upon its face. We find no exception to this part of the charge unless it be in an exception taken to the charge of certain requests submitted by the defendant, and as the requests are not printed in the state of the case, they are not before us. State v. Blaine, 6 N. J. Adv. R. 506, and cases cited.

The third point is that the court erred in stating that additional evidence of ownership was not necessarily required. 'This was a correct statement of the law and even if erroneous no adequate ground of appeal is presented in the record to bring the instruction properly before us.

The only other point urged is that the court erred in overruling a question directed to the defendant on cross-examination as to whether he offered a bill of sale to the purchaser, Lewis. This ruling did the plaintiff no harm as it was not in dispute that the bill of sale was not tendered.

The judgment is affirmed.


text:
    MARY JACKSON AND FREDERICK R. JACKSON, PLAINTIFFS, v. MIKE SALDUTTI, DEFENDANT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Warren Dixon.

    Contra, William B. Stites.

   Per Curiam.

One of the plaintiffs, Mary Jackson, was injured in an accident while riding in the car of the defendant, and she and her husband brought the present action to recover damages therefor. The jury found in favor of the defendant .and the plaintiffs have a rule for a new trial. Negligence in the defendant, who was driving his own car, was clearly proved, and the substantial question in the case was whether the plaintiff was an invitee or a mere licensee in the defendant’s car at the time of a collision with another automobile on the road.

Mrs. Jackson and the defendant were returning from a trip to Budd Lake when the accident happened. It was a controverted question whether the trip was taken at the instance of Mrs. Jackson and for her enjoyment, or whether it partook of a business character, in which the defendant was taking her as a possible purchaser to see a bungalow which he owned. The proofs we think justified the jury in solving this question in favor of the defendant. The evidence of the defendant, if believed, clearly established that the trip was taken upon the request of Mrs. Jackson for her own purpose, and some of the evidence of Mrs. Jackson herself lends color to this conclusion.

The rule will he discharged.


text:
    JOHN PASKIE, PLAINTIFF, v. JOSEPH GADEK AND HELEN GADEK, DEFENDANTS.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, John W. McGeehan, Jr.

      Contra, John E. Toolan.

   Per Curiam.

This is defendants’ rule for a new trial. There was a verdict for the plaintiff, in the sum of $3,000, for damages to his car and injuries to his person. The grounds urged for making the rule absolute are that the verdict was against the weight of the evidence on the question of negligence, and that the damages are excessive.

The plaintiff was proceeding in his car south on State road in Perth Amboy and was in the middle of a block when a collision took place between his car and that of the defendant, producing personal injury to the plaintiff and damage to both cars. It appears that the defendant lived at a point on the road opposite to where the accident happened and was either .turning into his driveway, or about to do so, when the collision took place. It was the contention of the plaintiff that while his own car was proceeding on the west side of the center of the highway, the defendant’s car turned to the left to enter his driveway, and in doing so struck the plaintiff’s ear on the left front side. The proofs offered by the defendant Joseph Gadek were that he had reached a point going north on his own right side of the road and had stopped, and that the plaintiff’s car, proceeding on its wrong side of the road, ran into the car of the defendant.

The plaintiff had suffered a severe injury to the spine over a year before the happening of the present accident, from which he was slowly recovering when the injuries here sued for occurred. The proofs were that the earlier injury was aggravated, new and severe pains produced, added disability resulted, and that his recovery is materially retarded. His car was repaired at an expense of $441.25.

Erom the contradictory proofs as to how the accident happened, we cannot say that the jury was not justified in placing responsibility therefor on the defendant or that on the evidence of plaintiff’s injuries and damage to his car the award was excessive.

The rule is therefore discharged.


text:
    SALVATORE CANNAZZARI, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF STOKEY CANNAZZARI, DECEASED, PLAINTIFF, v. TRIANGLE BUS COMPANY, DEFENDANT.
    , Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Schneider & Schneider.

      Contra, Mark Townsend, Jr.

   Per Curiam.

This is the defendant’s rule for a new trial. The plaintiff, Salvatore Cannazzari, as administrator ad prosequendum, recovered a verdict at the Essex Circuit of the Supreme Court .against the defendant for the death of Stokey Cannazzari.

Of the reasons assigned for making the rule absolute, two are argued. These are that the court erred in its charge to the jury, and that it should have submitted the question of the negligence of ’the deceased, Stokey Cannazzari, to the jury.

Neither of these reasons we think are well founded. The portion of the charge complained of is this: “The defendant was operating a bus which was driven by its employe, Richard Kampf, and, of course, if Richard Kampf was guilty of negligence, the defendant can he held, and so the testimony of the driver is particularly interesting.” It is contended that this charge improperly omitted to instruct the jury as to the causal relation between the accident and the death of Cannazzari.

Our examination of the evidence convinces us that the negligence of the defendant, if it existed, was so clearly the cause of the accident that the trial judge was justified in assuming such to be the fact and in refraining from charging otherwise than he did. We also think that contributory negligence of the deceased was not an issue in the case, and, therefore, the trial judge did not err in failing to submit it to the jury. The proofs were that the deceased was riding as a passenger in the rear seat of a Eord touring car being driven by one Sherman. A collision occurred between this car and a bus of the defendant company. There was no evidence upon which it could be held that the deceased was in any wise responsible for the operation of the touring car, or for the accident which caused his death.

The rule for new trial is discharged.


text:
    JAMES B. SHEEAN, PLAINTIFF, v. GEORGE W. HOLMAN, Jr., ROBERT BUERMANN, HENRY H. DAVIS AND SANGER BROWN, DEFENDANTS.
    Argued October 6, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the rule, McCarter & English.

    Contra, Howard Ewart.

   Per Curiam.

This is a rule allowed to the defendant George W. Holman to show cause why a verdict rendered against him at the Ocean County Circuit of the Supreme Court, at the suit of James B. Sheean, should not be set aside. The complaint charged in its first count a conspiracy on the part of Holman, Buermann, Davis and Brown to have the plaintiff incarcerated in the New Jersey State Hospital for the Insane. The second count of the complaint charged false arrest and false imprisonment against the same defendants. Both counts claimed compensatory and exemplary damages.

At the conclusion of the trial the plaintiff suffered a non-suit as to all of the defendants except Holman, and the case having been submitted against him alone, the jury found a verdict of $25,000 in favor of the plaintiff.

The fundamental reasons urged for making the rule absolute are that the verdict was contrary to the weight of the evidence and that the damages are excessive.

The defendant is the plaintiff’s father-in-law. In April, 1924, the latter came to Toms River from the west, bringing with him his family, consisting of his wife (defendant’s daughter) and two children, and located at the Ocean House, a hotel kept by the defendant. Between the two men marked differences had grown up resulting in the estrangement and separation of the family from the plaintiff, followed by the plaintiff himself taking up his residence at the Marion Inn, also in Toms River. Shortly thereafter the defendant caused the plaintiff’s apprehension and procured an order for his commitment to the insane asylum at Trenton. This order on the following day, however, was nullified by his release under hateas corpus proceedings. It was for this proceeding, unjustified and maliciously instituted, as the plaintiff contends, that the present action was brought, and at the trial damages were claimed not only for the injury to the plaintiff’s'reputation, his feelings, peace of mind, standing, &c., but punitive damages as well.

There was abundance of evidence, we think, that the action of the defendant was not justified by the facts; that the proceeding was without probable cause and that the defendant was actuated by bad motives in causing plaintiff’s arrest and. detention.

Before taking the steps recited against the plaintiff, Holman endeavored to procure the professional aid of Dr. Brower, a. well-known physician of Toms River, in having plaintiff committed to the asylum, and was told after a physical examination by the doctor that Sheean was sane and that he would not be a party to committing a sane man to an asylum. Notwithstanding this defendant procured the necessary formal papers for commitment from two other physicians without an examination, assuring them that plaintiff was too dangerous-to be examined. At the trial the defendant persisted in his-efforts to show the plaintiff to be insane by introducing evidence to this end. The entire proofs, however, were overwhelmingly to the eontrarji-, even the certifying physicians-testifying that they could on subsequent examination observe-nothing abnormal in the plaintiff.

As to the damages, it is not easy to deal with this phase of the case. The actual incidents which lead to the bringing of this action were few and comprised but a short period of time, from one evening until the next, but their consequences-were large. The plaintiff has been a man of parts and prominence. He is sixty-four years of age, a college graduate and a lawyer by profession; has practiced in the Supreme Court of the United States for a long period, became the general attorney of the Chicago, St. Paul, Omaha and Minneapolis'Railway, and later a director and vice-president of the Chicago- and Northwestern Railway Company. . He continued as vice-president until 1923, when he was pensioned by that company. It was proven that the arrest and detention were published broadly over the land and must have reached the old acquaintances and friends of the plaintiff. It would naturally seriously impair his standing with them and probably much more so among his new acquaintances in Ocean county. To this, of course, may be added whatever the jury may have determined as proper by way of exemplary damages. We think there is ample evidence that the defendant was actuated by venom and hatred; that his conduct was not in good faith but was intended to discredit the plaintiff and incidently to widen the breach already existing between the plaintiff and his family. Counsel for the plaintiff has industriously collected a large number of cases of similar character in which verdicts, some of them much larger, on no greater foundation, have been sustained. The damages are large, but in view of the great wrong done to the plaintiff and of the wide latitude allowed to juries in cases of this character, and particularly when exemplary damages may be awarded, we incline to think that we would not be justified in disturbing the verdict.

A number of trial errors are claimed to have crept into the case, in the admission or rejection of testimony, in the charge to the jury, and in the denial of some instructions requested by defendant of the learned trial judge, but none of them are substantial. Hypothetical questions on sanity propounded to lay witnesses were clearly incompetent, the charge was an accurate presentation of the law and the requests were, so far as proper, adequately covered therein.

The rule will be discharged.

MEMORANDUM AS TO BILLS OF PARTICULARS

NOTE. — The following memorandum relating to Bills of Particulars by 'Edward P. Johnson, Esq., of Somerville, seems well worthy of a place among the Miscellaneous Reports.

It has been our thought (a) that section 102 of the Practice act of 1903 (replaced by rule 18 annexed to Practice act of 1912) simply allowed, in a contract case, a plaintiff to anticipate a demand for a Bill of Particulars by annexing a bill to his complaint (or a defendant to his counter-claim), and that the remedial purpose of the statute was to enable the plaintiff to prevent the defendant from delaying the suit by serving a demand for a Bill of Particulars before filing his answer and thereby gain delay, and (b) that this in no way altered the common law rules relating to Bills of Particulars.

If our understanding has been correct (there being no other change in the practice and no difference between contract and tort cases), then Dixon v. Swenson, 101 N. J. L. 22, appears to hold, in all cases—

(a) That a Bill of Particulars is only demandable in any event for the purpose of enabling the adverse party to frame his answering pleading;

(b) That it is only demandable prior to the filing of the answering pleading; and

(c) That it is only demandable as to the complaint and thereby never to be had as to affirmative matters set up in the answer, and is therefore the exclusive privilege of the defendant.

We are unable to believe that the scope of a Bill of Particulars is so limited.

Pleadings generally (particularly our old common law pleadings) were and are so framed that it hardly seems, except in very exceptional eases, that an adverse party would not be able to frame his answering pleading. Therefore, it would seem that there must have been other purposes of Bills of Particulars, purposes that were for the advancement of justice.

Inasmuch as it has been our thought that a demand for a Bill of Particulars is not by any means limited to the purpose of only enabling the defendant to frame his answer, but that it is demandable'—

(a) In all cases. Tilton v. Beecher, 59 N. Y. 176; Bills of Particulars, 31 Cyc. 568; Watkins v. Cope, 84 N. J. L. 143.

(b) By either party. Watkins v. Cope, 84 N. J. L. 143.

And for the purposes—

(c) Of enabling the adverse party to frame his pleading (no citations necessary).

(d) Of limiting the proofs of the matters contained in the pleadings by the matters set out in the Bill of Particulars. Clinton v. Lyon, 3 N. J. L. 1036; Kent v. Phenix Co., 69 Id. 532; Johnston v. Bowers, 69 Id. 544; Hopper v. Gillett, 6 N. J. Mis. R. 63.

(e) Of giving the adverse party such information as will enable him to know what specific matters he is called upon to meet and to be prepared to deny or explain them. Tilton v. Beecher, 59 N. Y. 176; Bills of Particulars, 31 Cyc. 568, 584; Foster v. Curtis, 120 N. Y. App. Div. 874; New York, &c., Insurance Co. v. Granniss, 118 Id. 830, and many other New York cases cited in 31 Cyc. 584; Whittle’s Admrs. v. Vance, 3 N. J. L. 636; Clinton v. Lyon, 3 Id. 1036; Stothoff v. Dunham’s Exrs., 19 Id. 181; Van Voorst, Admx., v. Morris Canal Co., 20 Id. 200; Voorhees v. Barr, 59 Id. 123; Cullen v. Woolverton, 63 Id. 644; Kent v. Phenix Co., 69 Id. 532; Johnston v. Bowers, 69 Id. 544; Watkins v. Cope, 84 Id. 143; Heppard v. Carr, 12 N. J. L. J. 185.

(f) And, that in the cases relating to the framing of the answering pleading, it must, of course, be demanded before the filing of the answering pleading (this is obvious).

(g) But, where it is for the other purposes, it is orderable at any and all times where it appears to the court that it is proper to order it for the purpose of doing justice and insuring a fair trial of the issues of the case (and where, in the judgment and discretion of the court, the court feels that there has not been such laches as works an injustice to the other side). Tilton v. Beecher, 59 N. Y. 176; Foster v. Curtis, 120 N. Y. App. Div. 874; New York, &c., Insurance Co. v. Granniss, 118 Id. 830, and many other New York cases cited in 31 Cyc. 584, some holding that there are cases when an application for particulars before plea filed is premature. Also, by fair intendment, the New Jersey cases cited under above (d).

(h) And, in fact, in some instances a demand or order for a Bill of Particulars before plea is actually improper and premature. Bill of Particulars, 37 Cyc. 584; Foster v. Curtis, 120 N. Y. App. Div. 874; New York, &c., Insurance Co. v. Granniss, 118 Id. 830. See Hopper v. Gillett, 6 N. J. Mis. R. 63, which shows one of the embarrassments of Dixon v. Swenson, and inferentially modifies it in one of its phases on the ground that it was a contract case, but erroneously holding that contract cases are largely, if not entirely, regulated by statute. As we have above seen, contract and tort cases are governed by the same rules, and the only change which the statute made was- to allow particulars in contract cases to be annexed to the complaint and thereby prevent the defendant from causing delay.

We think that to deprive a party of proper knowledge of the particulars of his adversary’s pleading simply because he does not make- the application before filing his answering pleading, may work grave injustice in many cases, particularly among the younger members of the bar who are not, and almost necessarily so, quite well versed, in the technicalities of practice. (And this may very well apply to many of the older members of the bar.) Por instances—

“To illustrate a contract case, a defendant may plead payment; the plaintiff knows very well that he has not been paid, and he has no trouble in denying, it and has no reason to delay bringing his suit to an issue by making a demand for a bill and further delay in his pleading by applying to the court for an order, and so he files his reply; but he has a fair right to know when, where, by whom, whether by check, note or in cash, &c., the defendant claims he was paid, so that he can be prepared, in the language of Tilton v. Beecher, he may summon witnesses to rebut such evidence as may be brought against him or explain the circumstances. .

“And, to illustrate a tort ease, the defendant may plead that he warned the plaintiff; the plaintiff has no trouble in denying that and has no reason for delay in bringing his suit to an issue by making a demand for a bill and further delay in his pleading by applying to the court for an order; and so he files his reply; but he has a fair right to know when, where, by whom, whether oral or in writing, &e., so that, in the language of Tilton v. Beecher, he may summon witnesses to rebut such evidence as may be brought against him or explain the circumstances.

“The result is that the plaintiff files his reply without demanding particulars because he has no trouble in denying the allegations in the answer and wants to bring his case to an issue as .soon as possible and avoid delay (and the avoidance of delay is of enough importance to have induced the statute relating to contract eases). He then proceeds to prepare for trial, and finds, in the language of Tilton v. Beecher, that he needs particulars of the allegations in the defendant’s answer so that he may summon witnesses to rebut such evidence as may be brought against him or explain the circumstances. He applies for particulars, and is denied relief because Dixon v. Swenson holds that particulars are solely for the purpose of enabling him to frame his reply and can only be had before it is filed. Eeeling that he is entitled to relief in some way, he then propounds interrogatories, and thereupon he is denied relief because interrogatories can only be propounded as to matters relating to the presentation of his own case, and cannot be used for the purposes of particulars. The practical result is that he is forced to go to trial without any of the particulars which he should have for the purposes of the trial. This does not appear to be such a result as is contemplated by Tilton v. Beecher and the other eases cited in this memorandum.”

All through the cases, emphasis is laid on the importance of an adversary knowing the particulars of his opponent’s ease for the purposes of preparing for trial, summoning witnesses, &c. The office of enabling a party to frame his answering pleading does not appear to have been nearly as much emphasized.

It is our thought that the above illustrations, together with the reasoning, are fully sustained by the cases cited above and by a general view of the remedial justice to be administered.

While it may be the natural inference of Dixon v. Swenson that particulars is the remedy before plea, and that interrogatories is the remedy after plea, yet we think that that is not the true distinction, and that the true distinction is that particulars relates to the case of the party called upon to furnish them and that interrogatories relate to the party’s own case, an entirely different matter.

And we also think that if the plaintiff needs particulars of the defendant’s answer in order to prepare for trial and to summon witnesses to meet the defendant’s allegations, that the law provides a remedy and that that remedy is a Bill of Particulars for those purposes. We know of no other remedy. In the language of Blackstone, “Eor every wrong, the law provides a remedy.”

As bearing upon the question of whether particulars can only be had before plea, it is worthy of note that the opinions of the courts constantly treat oyer, profert, inspection and particulars as all belonging to the same class of remedy, and, of course, oyer and inspection are not at all limited to being had before plea. So, too, the cases show that profert has been had many times as an incident to particulars. This whole general class is to be administered so that justice is. done and a fair trial had and surprise to be avoided as far as possible.

In other words, particulars is an elastic remedy, to be had at any time when, in the language of Tilton v. Beecher, “when the circumstances are such that a party should be apprised of the matters for which he is to be put for trial” “in order that he may summon witnesses to rebut such evidence as may be brought against him, or explain the circumstances.” And, if it was elastic in the days of common law pleading, how much more should it be elastic under our more modern pleading. The whole present-day tendency is to get away from technicalities and to try to get a fair trial of the merits of the controversy.

CONCLUSION.

It is onr thought that the same situation exists as to Dixon v. Swenson that existed in the Hackensack Trust Company case (so misleading as to induce a frank statement some five years later that it was misleading as a statement of general law), to wit, that it is only to be read as applicable to the facts before the court in that particular case and not as a statement of the general law applicable to all cases.

Taken in that view, we can see that Dixon v. Swenson was the case of an application for particulars before plea, and therefore presumptively for the purpose of enabling the opposing party to frame his answering pleading, and that the application for more specific particulars was a renewal of the same application for the same purpose, and therefore properly not maintainable after plea filed.

But, as a statement that, in all cases, particulars are solely for the purpose of enabling the opposing party to frame his answering pleading and that they can only be had before plea filed, we think that Dixon v. Swenson is misleading.

Eespectfully submitted,

Edwakd P. Johnson,

Somerville, N. J.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROCCO LABOZZETTA, PETITIONER, v. ISIDORE CHOLER, RESPONDENT.
    For the petitioner, Mark M. Stein.

    For the respondent, Edwards & Smith (Andrew O. Wittreich, of counsel).
   3j: # ^ # % * ijc

2. The matter coming on, on May 6th, 1927, it appeared that the petitioner had been employed as a laborer and trench digger by one Dominick Pucaro, on August 10th, 1926, upon a construction job, wherein the respondent, Isaac Choler, was a plumbing contractor. While engaged in his employment, digging a trench, a passing automobile, coining too near to the edge of the trench, struck a stone, throwing it in the trench and upon the petitioner’s back, thereby injuring him. He further testified that Dominick Pucaro had paid him for his services. In addition thereto, the petitioner offered medi•cal testimony' to show the extent of his injuries and the amount of his bill. This closed the petitioner’s case.

3. The respondent, Isaac Choler, then testified that on August 8th, 1926, he made arrangements with one Dominick Pucaro, with whom he had been doing business for several years, to dig a trench in front of an apartment house in Passaic avenue, in the city of Passaic, New Jersey, wherein he had contracted to do the plumbing; that thereafter Pucaro sent down the petitioner, Labozzetta, who was afterwards injured upon August 10th, 1926. He further testified that at no time was the petitioner under his control or supervision, that he had nothing at all to do with the work which Pucaro was doing for him.

4. In addition, the respondent offered in evidence checks made payable to the order of Dominick Pucaro, paying him for the work which had been done upon the premises where he had the plumbing contract.

5. I do therefore find from the evidence offered on behalf of the petitioner and on behalf of the respondent as follows: That the petitioner was at no time ever in the employ of the respondent, Isaac Choler, and that the accident which he complains of did not arise out of any employment of him by the respondent, and I do therefore dismiss the petition.

Harry J. Goas, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EVELINE LEBLANC, PETITIONER, v. INTERNATIONAL MOTOR COMPANY, RESPONDENT.
   This is a workmen’s compensation claim coming on for adjustment at New Brunswick, on July 13th, 1927, at which time the facts relative to the employment, accident, knowledge thereof and wages in force were stipulated, leaving only for determination the question as to whether or not anyone was dependent upon the deceased prior to the accident, whether or not such dependency was total or but partial, and if partial, to what extent was there dependency. Testimony was presented by the petitioner, and from said testimony I have concluded that the petitioner, Eveline Leblanc, for some time prior to the accident, had been dependent upon her brother, the deceased, because of her own physical disability which was of a tubercular nature, which prevented her from performing any kind of labor. This dependency was partial in character inasmuch as she received from the deceased an average of $40 per month, which was sufficient to meet her incidental expenses, including clothing, leaving a balance of $10 which she paid to the institution in which she was being treated. This institution, supported by the local community, furnished her with the other elements of her needs; namely, lodging and the principal elements of her food. Under this state of facts, she is to be classified as a partial dependent entitled to thirty-five per cent, of $40 per month, the equivalent of $9.23 per week, which yields a compensation rate of $3.23 per week. This is to be paid for a period of three hundred weeks from the date of the accident, and will amount to $969.

Owing to the nature of the ailment which prevents the petitioner from being self-supporting, there may eventually result an improved condition as result of treatment, and the respondent is therefore entitled to the privileges of medical examinations from time to time as may be reasonable, in order to keep advised as to the petitioner’s physical condition.

It is therefore, on this 19th day of July, 1927, ordered that the respondent pay to the petitioner the sum of $3.23 per week for a period of three hundred weeks, beginning with October 21st, 1925. Such amount as shall have accrued to the date of this order shall be paid in one lump sum, the balance to be paid in weekly or monthly installments until the completion of the three hundredth week. The attorney for the petitioner is entitled to counsel fee of $150, of which $75 shall be paid by the petitioner and $75 by the respondent.

W. E. Stubbs, Deputy Commissioner.


author: Backes, V. C.

text:
    Adeline Klein v. David Klein.
    [Decided January 19th, 1928.]
   Backes, V. C.

This action is for a divorce a vincula on the ground of extreme cruelty. The Blackwell act made no change in the cause for action. Extreme cruelty always was a cause for divorce. That act simply gives a different relief. Extreme cruelty was and is a ground for divorce from bed and board; now, under the Blackwell act, it is a ground for absolute divorce.

It is abundantly established, beyond peradventure, that during the thirteen months this couple lived together he, the defendant, was frequently drunk, and upon many occasions used violence towards his wife, cursing her, and, finally, it resulted in the woman leaving. She fled because of his conduct. She had reasonable ground for apprehending that if she continued with him it would simply be a repetition of what she had already endured. I need 'not rely in this case on the testimony of the wife; friends and visitors at the home give testimony of his brutal conduct towards her. The defense is a denial of all that his wife has said as to physical violence, and denial of all that his former friends, and probable friends of to-day, have testified to. By the sheer weight of the evidence the cause for action has been established. Her conduct after the separation, it is urged, indicates that the woman was not in fear; that it indicates absence of fear of her husband. What she did afterwards may reflect the conduct of the parties and her state of mind during cohabitation, but it is not a bar to her right to relief if the right of action existed and she did not forfeit it by condoning the offense. They did meet upon occasions, and apparently on friendly terms, but that does not at all militate against the established fact that she was shamefully treated and fled and stayed through apprehension of future abuse on the part of the husband. The wife had stood for far more than she was called upon to, but still, feeling that there might be some salvation of the man she had married, gave him opportunity, even the day after the separation. Notwithstanding what she had been compelled to submit to, she offered to go back, or was ready to go back, and resume relations if he would apologize, meaning thereby if he would reform his ways or promise to, and he refused. That does not indicate that when the woman fled from the house, and even at that time, when she made the approach, she was not apprehensive of a renewal of his misbehavior, but she was willing to take his' word and chance that there would not be.

Now, the cause for action under the Blackwell act became fixed the moment the assaults were committed; by that I mean the moment the conduct of the husband amounted to extreme cruelty. It became as fixed as does willful and obstinate desertion at the expiration of two years, or as does adultery. The cause for action for extreme cruelty vests an absolute right to a divorce, which the injured party may exercise after six months — not before. That time must elapse, as was held in the Coe Case (Coe v. Coe, 97 N. J. Eq. 57; affirmed, 99 N. J. Eq. 422; see, also, Hart v. Hart, Ibid. 373), to permit the offended party to cool down and reflect before taking the step. In the Coe Case the husband offered all sorts of reformation — the wife met him — and it was held, as I hold here, that it was the wife’s option to forgive and return, or at the expiration of six months to sue, notwith-'standing conduct which might tend to bring 'the husband to a full realization of his wrong doings, and even though during that period of time she evinced hope that there might be a reunion.

It has not been argued, as it sometimes is, that the wife, after submitting to numerous acts of cruelty, continued to live with her husband, and that that is evidence of forgiveness. A wife continuing after brutal conduct on the part of the husband, does so in most cases not in a spirit of forgiveness but in the hope that he may mend his ways, or that she is constrained to do so because of children or her own necessities. Here, after the thirteen months’ wretched experience with a drunken, brutal husband, the thing that probably broke the camel’s back was that he spat in her face, which he does not deny; it was then that she concluded to separate. I have no confidence in the denials of the defendant. I cannot place any reliance whatever in his testimony, and of the many things that lead me to think he is untruthful this stands out. He says his wife was in the family way about a month before they separated. Two days after the separation she submitted to curetting, as she says; he says an abortion. The process is the same. Curetting follows abortion as it may follow many other ailments of the womb, but that is neither here nor there. Within twelve days after, this man says, his wife submitted to him in an automobile. That is, she had just rid herself of a foetus, underwent an abortion, and then on the eve of the cure, after the abortion, again submitted herself to his embrace, taking the chance of a second conception. It may be that a woman will submit within twelve days after an abortion to sexual relations, but experience does not tend that way. I do not believe that part of his story, and the wife denies it. It seems to me cooked up to meet a bad situation. As an affirmative defense — -condo-nation — -it is not sustained.

I will advise a decree.


text:
    Peter Shields, complainant, v. Greater Cape May, Incorporated, defendant.
    [Decided April 20th, 1928.]

      Mr. Francis D. Weaver, Mr. Robert H. McCarter and Mr. Arthur F. Egner, for the complainant.

      Mr. Lindley M. Garrison, Mr. Carlyle Garrison and Mr. Thomas F. Gains (of the Pennsylvania bar), for the defendant.
   Backes, V. C.

This stockholders’ bill is to set aside, and if not set aside to have declared the amount due on four real estate mortgages made by the Cape May Real Estate Company to Nelson Z. Graves, the president of the company, February 21st, 1912, for $250,000; January 8th, 1913, for $75,000; November 4th, 1913, for $30,000, and February 14th, 1914, for $25,000. The attack on the last mentioned was abandoned. The company having been declared insolvent, Frank D. Schroth, receiver, was substituted as complainant.

The Cape May Real Estate Company was formed years ago to develop waste land at Cape May into a seashore resort. Much money had been sunk in the project when Graves bought a majority interest in the company, at a low figure, in 1911, and installed his own board of directors. Though the company’s affairs were moribund he was venturesome and proceeded to put in more. Under the old regime, in 1907, the company had contracted with the federal government to dredge a four-hundred-acre basin and connecting channel thirty feet deep, in Cape May Harbor, adjacent to the lands of the company, in consideration that the government open up and improve Cold Spring Inlet leading to the harbor. When Graves came on the scene the company had constructed a basin of some two hundred and fifty acres and the government had nearly completed th'e construction of jetties on either side of the inlet, seven hundred and fifty feet apart, extending from the harbor far seaward, and was about to dredge an entrance channel between the jetties fifteen feet deep, and twenty-five feet deep if the company would contribute $100,000 towards the dredging, which it failed to do. The government was carrying out its part of the bargain and the company had to go forward or suffer an action for damages. It decided to perform. The thing of most importance was the digging of the connecting channel from the head of the jetties to the basin, to make the basin commercially available, and this Graves undertook to do, and under date of January 4th, 1912, entered into an agreement with the company—

“To dredge from the harbor of Gape May from the point commencing at Sewell’s Point at the line from which the United States government is to commence their part of the work of deepening the channel between the jetties erected by them, to any point within said harbor of Cape May as may be designated by the engineers of the Cap May Real Estate Company, the depth of excavation over the area dredged to be not less than thirty feet below mean low water, and not over thirty-three feet below mean low water.”

In this undertaking the company had a secondary purpose, to fill in its low land with the dredged material so as to provide salable building lots, and to that end it was stipulated that Graves should— 0

“Deposit all of the material excavated upon land known as New .Cape May, and shown on map attached to contract, and on the property known as Two-Mile Beach, at such points and in such quantities as may be determined necessary by the engineers of the Cape May Real Estate Company, except more particularly to deposit:
“First. On all that jDortion lying east of Princeton avenue in Plan ‘A’ of said Cape May Real Estate Company to the bulk [head] line established by said company, and between the northerly side of New Jersey avenue to the bulkhead line of the harbor, until such area be brought up to the grade established for the improvement of the East Cape May property, in no case shall the material be required to be placed at a greater elevation than eleven feet above mean high water. [This location is known as ‘Low Area No. 2’ New Cape May.]
“Second. To deposit on the portion of the East Cape May property between Pittsburgh avenue and St. Louis avenue, and the northerly side of New Jersey avenue and the bulkhead line to be established by the engineers of the Cape May Real Estate Company on the southerly side of Cape May Harbor, and in such locations within this area as will be designated by the engineers of the Cape May Real Estate Company. The said deposit or fill to be brought up to grade established for the improvement of said property by the Cape May Real Estate Company. [This location is known as ‘Low Area No. 1’ New Cape May.]”

The company agreed to pay Graves “nine cents per cubic yard for each yard of material excavated and distributed upon the areas hereinbefore designated or to be designated by the engineers of the Cape May Eeal Estate Company.” The company had no funds and' Graves agreed to make advances, and for the work done and money advanced to take mortgages.

He advanced in money .............................. $116,308.41
He dredged 2,676,151 cubic yards, at 9 cents ......... 240,853.59
Total....................................... $357,162.00
He received in mortgages ............................ 355,000.00

These items, as to sums, are conceded to be correct. The legality of the contract is not assailed in the bill because it was made by the company, under the control of Graves, with Graves, its president, and at the hearing it was stipulated that the price of nine cents per cubic yard for the dredging was fair and reasonable. The bill counts on the contract and the cause of complaint is its non-performance, the charge being that the money represented by the mortgages was not earned because the channel was not dug to the required depth and the material dredged was not deposited as provided in the contract. The elaborate discussion in the briefs as to the binding force of agreements between a corporation and a member of its board of directors under the principle of law laid down in Stewart v. Lehigh Valley Railroad Co., 38 N. J. Law 505, and the cases on the subject that followed is entirely irrelevant. The contract is executed, and besides, it was affirmed by the stockholders. And so as to the legality of the mortgages. The power to execute them is not challenged; whether the power was lawfully exercised is raised as to the first mortgage only. It was authorized by the board of directors, of which Shields was one, at a meeting of which he charges he had no notice, and this is disproved. He had ceased to be a director when the second and third mortgages were authorized. He was present and seconded the motion to award the dredging contract to Graves which, as recorded, concludes that “payment for said dredging work to be made by creating a mortgage on the harbor lots.” The motion did not authorize the execution of a mortgage, and a special meeting was called for that purpose on February 17th, 1912, at which a formal resolution was passed authorizing the $250,000 mortgage objected to. Shields was not present at this meeting but he had due notice; so the secretary testified and satisfyingly. The single question to be considered is whether Graves earned the amount he claims for dredging. It is agreed that of the two million six hundred and seventy-six thousand one hundred and fifty-one cubic yards of material excavated, one million forty-nine thousand two hundred and six yards were properly deposited in “Low Area No. 2;” one million two hundred and forty-six thousand eight hundred and seventy-two cubic yards on Two-Mile Beach and in the lower thoroughfare; sixty thousand eight hundred and seventy-eight cubic yards on Two-Mile Beach at the United States life saving station, and three hundred and nineteen thousand one hundred and ninety-five cubic yards on the meadows north of the harbor. These, places were selected by the engineers of the company but the deposits were not a compliance with the terms of the contract. A true and reasonable interpretation of that instrument required of Graves to deposit the excavated materials in Low Area No. 2 until brought to grade, and thence in Low Area No. 1 until brought to grade, and if there was material over, that to be put on Two-Mile Beach. The determination of the engineers of the company to drop the material elsewhere, more conveniently, was not within his discretion. The provision of the contract that the deposits were to be made “at such points and in such quantities as may be determined necessary by the engineers of the Cape May Real Estate Company” on the land known as New Cape May and on Two-Mile Beach was definitely excepted and subordinated to the fulfillment of the contract to “more particularly” grade Low Areas Hos 2 and 1. Within these specified areas the engineer had discretion in making the fill. His choice to dump the material on the waste land of,Two-Mile Beach and in the thoroughfare instead of filling in lots for market in Low Areas Hos. 2 and 1 furnishes no excuse for the non-performance of this special feature of the contract, and his default in this respect must be charged to Graves. Low Areas No. 2 and Ho. 1 were available for all the materials improperly deposited elsewhere. The contract price of nine cents per cubic yard included fill as well as the excavation. It appears'in evidence that six cents per cubic yard was a fair price for dredging and dumping materials conveniently and an allowance will be made at that figure. There is nothing in the evidence to show that injury to the company in failing to deposit the material in the places selected exceeds this rebate of three cents per cubic yard.

The material placed at the life saving station is a proper charge under the contract. The company was under contract to make the fill and the engineer’s discretion was properly exercised.

The claim for rebate because the channel was not dug to the depth of thirty feet is without merit. The depth varied between twenty-five and thirty, and approached more nearly the latter. The company’s contract with the United States called for a depth of thirty feet based upon the government’s contingent agreement to dig an entrance channel of twenty-five feet in depth. It dug one but fifteen feet deep, and the utility of the company’s thirty-foot deep basin and the channel of slightly lesser depth is consequently defeated. Dredging to the depth required by the government would have been sheer waste, and as Graves’ default resulted in a saving to the company it has no reason to complain.

The decree will be settled on notice.


text:
    THE BARDEN AND ROBESON CORPORATION, PLAINTIFF-RESPONDENT, v. ALFRED LIRIO, TRADING AS LIRIO BASKET AND PAPER COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Charles P. Brewer.

    For the respondent, Thomas G. Tuso.

   Per Curiam.

The plaintiff brought suit to recover the sum of $492.46, with interest, based on an accord agreement between itself and the defendant in an adjustment of a claim for baskets sold. There was no denial of the obligation, but the defendant filed a counter-claim, setting up that the baskets delivered represented but two carloads of a much larger quantity of baskets with covers which the plaintiff had contracted to furnish at the price of $1.35 per dozen; that the baskets actually delivered did not have covers, and that the moneys sued for represented a compromise only of the claim for the ones actually delivered; that the plaintiff refused to deliver the remaining baskets and covers; that the defendant was obliged to go into the open market and purchase baskets with covers at an advance of forty cents per dozen. For the consequent loss damages in the sum of $3,000 were claimed.

A motion was made by plaintiff’s counsel to strike out the answer on the ground that it was sham and frivolous. On this motion, after the reading of affidavits by both sides, the answer was stricken out and judgment entered for the plaintiff in the sum of $500.89, the learned trial judge taking the view that the compromise applied to the whole contract. To the action of the court in striking out the counter-claim the present appeal was taken.

This we think was error. The affidavits presented consisted largely of correspondence between the parties, and from this correspondence it is inferable that the compromise agreement upon which the plaintiff’s claim was based was not a settlement of the parties’ rights respecting the delivery of the remaining carloads of baskets under the original contract, but a compromise of the claim for the two carloads already shipped alone. Under these circumstances the judgment in favor of the plaintiff will be permitted to stand, but the order striking out the defendant’s counter-claim will be reversed to the end that a trial may be had according to law on the counterclaim.


text:
    BARBARA ESTERBROOK, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Henry H. Fryling.

    Contra, William C. French.

   Per Curiam.

This is defendant’s rule for new trial.

Defendant sets out four reasons for a new trial:

1 and 2. That the court refused to control the case by nonsuit or direction of a verdict for defendant.

3. That the verdict was against the weight of the evidence.

4. That the damages allowed were excessive.

Plaintiff was struck by a bus of the defendant company on a drizzly night, while crossing from the south side of Federal street to the north side of Market street, in the city of Camden, at the intersection of Tenth street. The two streets merge into one wide thoroughfare at that point. There were but three witnesses to the accident, plaintiff and one other for her, and the driver of the bus for the defendant. The street at the point is very wide, being practically of double width. The plaintiff had reached about the center of the street on the crosswalk when hit. Defendant’s tracks run out Market street. Defendant’s bus was coming in, or west, on the Market street half and turned to the left across the eastbound track, behind two buses going east, intending to go in Federal street, and as it did so came almost at once in collision with plaintiff. Plaintiff said she looked before starting across, but saw nothing, the drizzle obstructing a view for any considerable distance. No warning was given by the driver. Under the circumstances the trial judge was obliged to submit the case to the jury, and we think that the latter body was justified in finding the defendant liable.

The damages of $10,000, however, we think were excessive. The plaintiff was much shaken up and bruised. As a result an abscess formed at the base of the spine. This was treated and was cured at the end of six months. She suffered considerable pain and has a neuritic condition in the right arm which the doctor said might come from a previously broken left arm, but more probably from the present accident. She had a doctor’s bill of $175 and was hampered in her housework. Conceding all that her proofs disclosed, we think the verdict is grossly excessive. If the plaintiff will accept $5,500 the rule will be discharged; otherwise it will be made absolute.


text:
    LOTTIE M. WARD AND CHARLES WARD, HER HUSBAND, PLAINTIFFS, v. GEORGE LYDIARD AND RED TOP TAXI CORPORATION AND PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANTS.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Henry H. Fryling.

      Contra, Palmer & Cooper.

   Per Curiam.

On verdicts rendered in favor of the plaintiff, the Public Service Transportation Company, one of the defendants in this cause, obtained a rule for new trial.

The reasons urged for making the rule absolute are:

1. That the verdicts are against the weight of the evidence.

2 and 3. That the learned trial judge failed to charge the law of proximate cause.

4. That the damages are excessive.

The actions were to recover damages resulting from personal injuries received by Mrs. Ward, in a collision between a taxicab, in which she was a passenger, and an automobile bus of the Public Service Transportation Company. The collision occurred early in the morning of Eebruary 17th, 1926, at the intersection of Branford Place and Arlington street, in Newark. The taxicab, after admitting Mrs. Ward, started out of a gas filling station on the easterly corner of this intersection, and entering Branford Place was a few feet south of the northerly curb line when the accident occurred, being struck on the right side toward the rear by defendant’s bus, which had been proceeding easterly in and near the center of Branford Place. The crucial point was whether the taxicab had entered Branford Place when the defendant’s bus was sufficiently distant to avoid a collision if defendant’s chauffeur exercised proper care. Under the evidence we think this presented a fair question for the jury’s determination. The accident occurred on the defendant’s wrong side of the street, and it was under a duty to exercise the caution that this situation required. We cannot say that the jury was wrong in its conclusion that this duty was not observed.

In view of the evident causal relation of the defendant’s negligence, if it existed, to the accident producing the injuries to Mrs. Ward, there was no error in the failure of the learned trial judge to charge this phase of the law.

Mrs. Ward was injured about the head, face and limbs. Her jaws were injured and there was some evidence of the loss of some of her teeth; she suffered pain and headaches later supervened. She was employed as a singer in a cabaret, at which she earned $40 per week. This employment she was obliged to give up, and her testimony is that the quality of her voice is impaired. The husband’s expenses for medicine, medical and dental treatment and drugs were approximately $100 and there was proof of considerable sums paid for housework which his wife was unable to do. The result we reach is that the verdicts are not so clearly excessive as to justify their being disturbed by the court.

The rule to show cause will be discharged.


text:
    DANIEL A. PALLADINO, RESPONDENT, v. ANDREA RAIO, BUILDER, AND ANDREA RAIO AND MARIA RAIO, HIS WIFE, OWNERS, AND EDWIN C. CAFFREY, MORTGAGEE, APPELLANTS.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellants, Egidio W. Mascia.

    For the respondent, Eugene A. Liotta.

   Per Curiam.

This is an appeal from a judgment obtained against the defendants at the Union County Circuit in a building contract case, the plaintiff being the contractor, and the defendants the owners. The grounds of appeal are:

1. Error in the admission and rejection of evidence.

2. That the court erred in refusing to direct a verdict in favor of the appellants.

3. That the judgment is not supported by the proofs in the case.

4. That the jury disregarded the instructions of the court.

Of these grounds the second alone adequately brings before us any ruling of the trial court. The ground upon which this motion was based was that the evidence failed to show that any change in the contract (the claim being in part for extra work) was authorized. The motion to direct a verdict which was overruled could not have been granted in view of the proofs produced by the plaintiff. These.tended to show that moneys were due both on the principal contract and for extra work and materials ordered by the defendants and for which they agreed to pay.

The judgment is affirmed.


text:
    HUGO KLOTZ, PLAINTIFF, v. MICHAEL MANGO, DEFENDANT.
    Submitted October term, 1927
    Decided March 29, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, William Newcorn.

      Contra, Winfield S. Angleman.

   Per Curiam.

This is plaintiffs rule for new trial, a verdict having been rendered in his favor for one dollar. The action was to recover for injuries to plaintiffs truck, growing out of a collision between the trucks of the plaintiff and the defendant.

The damage to the plaintiff’s truck was substantial and the jury’s finding is without rational explanation.

The rule for new trial is made absolute.


author: Minturn, J.

text:
    CAROLINE W. PETTERSON, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, AND CHARLES DENICOLA, DEFENDANTS.
    Decided April 3, 1928.
    For the prosecutor, Nicholas S. Schloeder.

    For the defendant board of education, Samuel Spingarn.

    For the defendant Denicola, A. Michael Lepore.

   The opinion of the court was delivered by

Minturn, J.

My consideration of the points raised in the above-entitled matter on which the writ; of certiorari was granted, leads me to conclude that they are not supported by the law or the testimony. Without entering into a detailed statement of the legal reasons applicable to the situation I may say that the case is governed by the recent adjudication in the Supreme Court of Hahn Motor Truck Corp. v. Atlantic City, involving the purchase of a fire engine. This case involves the purchase of an oil burner, but the legal rule applicable to the situation is aptly and accurately stated by the Supreme Court in the case referred to.

The application of that rule to this case must result in the dismissal of the writ, with costs.


text:
    JACOB KORN ET AL., PLAINTIFFS, v. SHEPPARD W. COOMBS, DEFENDANT.
    Decided April 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the motion, Mark R. Sooy.

      Contra, Charles A. Wolverton, D. Trueman Stackhouse and Sydney T. Smith.

   Per Curiam.

On March 26th, 1928, the plaintiff, in an action in this court, tried at the Camden Circuit, procured by direction of the trial judge the return of a verdict by the jury against the defendant. On the same day, as the records in the office of the clerk of this court disclose, judgment on the postea was entered, and an execution issued to the sheriff of Cape May county. We are informed that a levy has been made under this execution. The exact date the levy was made is not disclosed. On March 29th, 1928, the defendant obtained from the Circuit judge who presided at the trial a rule to show cause why the verdict should not be set aside and a new trial granted. This order contained a stay in the following language: “And it is further ordered that all proceedings herein be stayed until the further order of this court.”

The defendant now moves to vacate the levy made under the execution issued upon the judgment, claiming that it is a nullity. The plaintiff contends that the levy should not be set aside and declared a nullity. The situation in the present case grows out of a change made in the Practice act by the supplement thereto approved March 28th, 1912. Pamph. L. 1912, p. 377. Eule 76, in schedule A, which is made a part of the said supplement, provided that — “In actions in the Supreme Court, the postea may be filed immediately after relicta given or verdict obtained, and judgment shall be entered forthwith. But the trial judge of the court, or any justice thereof, may stay execution pending an application for a new trial.” Eule 116 of this court embodies the exact language of said rule 76. This was a change in the procedure. Prior to the enactment of the supplement of 1912 a judgment in this court could not be entered until the opening of the term following the trial at the Circuit unless a special motion on two days’ notice was made for leave to enter judgment on the postea prior to the opening of the next term of the Supreme Court and granted. It must be assumed that by the change made in the supplement to the Practice act of 1912, which permitted the immediate filing of the postea and entry of judgment, that there was some sufficient reason which prompted the legislature to so provide.

In the case of Mumma v. Schmitter, 1 N. J. Mis. R. 455 (decided October 4th, 1923), Mr. Justice Parker said: “It may not be out of place to note, however, that the case of Erie Railway Co. v. Ackerson, 33 N. J. L. 33, invoked by the defendant, is superseded by rule 116 of this court, permitting an immediate judgment on verdict and providing that the court or a judge ‘may stay execution pending an application for a new trial.’ ” A careful examination of the case of Erie Railway Co. v. Ackerson, supra, upon which counsel for the defendant relies, leads us to the view that it is not a sufficient authority to set aside the levy made under the execution issued in the present case. This court in the Erie Railroad Company case used the language: “The established practice of this court is, that the plaintiff may issue his execution immediately after the entry of judgment nisi, if he thinks proper to do so, at the risk, however, of having it rendered a nullity, by the rule to show cause being allowed absolutely, and without directing the entry of a final judgment for the protection of the plaintiff, and subject, also, to the execution being superseded, if a writ of error is presented, and a recognizance of bail perfected, as required by the aforesaid act.” In our opinion tne court meant that it was only by the rule to .show causo being made absolute that the execution became a nullity.

It is true that the present practice is one which in some instances may bear hardly upon a defendant, but the remedy of the defendant, it seems to us, is to offer security if he desires to have any property released from the lien of a levy made under the execution. The stay of execution granted by the Circuit judge in the present case prevents any proceedings being taken under the execution and levy from the time when the rule to show cause was allowed. The rule was allowed, as has been stated, on March 29th, 1928. If, of course, the levy was made subsequent to the rule to show cause, then we would have the power to set the levy aside and put the parties in the position in which they were at the time of the allowance by the Circuit judge of the rule to show cause. We think the burden of proof is upon the moving party to show that the levy was made subsequent to the issuance of the rule to show cause. If this be the fact and proof is submitted to the court to this effect, we will allow a rule to show cause why the levy should not be set aside. If, however, the levy was made prior to the allowance of the rule to show cause then we think that it must stand until the rule to show cause is disposed of.

It is true, as contended for by the defendant’s counsel, that the present state of the law will probably result in some instances in inconvenience to a defendant and probably in a race between opposing counsel to see which, can be obtained first, the entry of a judgment and issue of an execution and a levy thereunder, or a rule to show cause with a stay of proceedings. We feel, however, that this is a matter for the consideration of the legislature.

This decision leads to a denial of the stay upon the record as presented to us. If, as above stated, proof is submitted that the levy was made subsequent to the allowance of the rule' to show cause, then we will grant a rule to show cause as to why the levy should not be set aside with leave to both parties to take affidavits to establish the situation existing at the time of the allowance of the rule to show cause.


text:
    CHESTER E. BECKER, PROSECUTOR, v. HAROLD E. PICKERSGILL, RECORDER, AND THE CITY OF PERTH AMBOY, RESPONDENTS.
    Decided April 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the motion, Leo S. Lowenkopf.

    Contra, Harry S. Medinets.

   Per Curiam.

On March 19th, 1928, a writ of certiorari was allowed to review the conviction of Chester E. Becker for violation of a certain ordinance of the city of Perth Amboy which provides for the examination and registration of master electricians and journeyman electricians, &e. The argument on the writ will be brought on at the May term, 1928, of this court. The prosecutor asks that this court grant what he terms a stay against all further actions by the city of Perth Amboy against him for violation of the said ordinance until the determination of the present case. We find no authority which will permit us to control the action of the city of Perth Amboy to such an extent. There is no precedent for the allowance of such a stay. Such a stay does not deal with the present case. It goes beyond the present proceeding. In view of the fact that the argument of the present case will take place within approximately two weeks it is to be presumed that those in control of the affairs of the city of Perth Amboy in such matters would not be likely to harass the prosecutor by other actions prior to the determination by this court of the present proceeding. •

The motion as presented is denied.


text:
    HARRY SCHWARTZ, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 18, 1928
    Decided April 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Lichtenstein, Schwartz & Friedenberg.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

We do not regard this as a zoning case. It comes before us on a rule to show cause why a writ of mandamus should not be issued directing the issue to the relator of a building permit authorizing and permitting the relator to improve and repair the first story of a brick garage, and to remove a frame second story thereof, situated on the land of the relator, at Nos. 186-188 Myrtle avenue, in Jersey City. The property fronts fifty feet on Myrtle avenue and has a depth of ninety feet. In the rear of the premises there is located a two-story building. The first story accommodates eight cars and is of brick construction. The second story is of frame construction divided into two apartments. The building has been there for twenty years. It required repairing. The relator engaged a licensed architect to prepare plans for the repair and improvement of the building. In December, 1926, the relator filed plans with the building department, and a permit was granted. The relator notified the tenants to move from the property. He experienced trouble in getting possession and did not get possession until June, 1927. The relator was then ready to commence work when the bureau of combustibles of Jersey City served a notice upon him that it would not renew the garage permit allowing the storage of automobiles, and ordered the removal of the automobiles from the garage premises within five days from June 6th, 1927. The bureau gave as .its reason for this that a portion of the building was frame, and was occupied for dwelling ■purposes. There was a wooden stairway which led from the garage to the apartments. The relator then determined to do away with the frame structure, so he procured the architect to draw new plans which eliminated the frame structure and the stairway complained of by the bureau of combustibles. These plans were in conformity with the building code of Jersey City. They were filed with the building department on July 9th, 1927, and met with the approval of the building department, which, however, refused to issue a permit, stating that it had received a letter from an attorney representing a property owner in the neighborhood who objected to the issuing of such permit and demanded a public hearing. A public hearing was given by the board of commissioners on October 19th, 1927. Some people in the vicinity objected to the granting of the building permit as they were not in favor of having a garage in the neighborhood. The commissioners deferred action, and have never granted the permit.

The respondents make but two contentions in the brief filed in their behalf. The first is that the delay or refusal to grant the permit is justifiable because of a zoning ordinance. To that it is sufficient to say that it is not made to appear at all that there is any zoning ordinance which affects the property of the relator. No such ordinance was offered in evidence or printed or otherwise made to appear, there being no stipulation respecting it, and nothing in the evidence showing that a garage is in any way prohibited at the point in question.

The other contention is that the fire hazard ordinance is applicable. In view of the fact that the present plans for the proposed repairs eliminate the very thing that the bureau of combustibles based its action upon it would seem that this question was disposed of.

A peremptory writ of mandamus will be awarded, with permission to so mould the pleadings as to permit of review if a review is desired.


text:
    IRVING REICHSTEIN, PROSECUTOR, v. BENJAMIN F. TURNER, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF PASSAIC; THE BOARD OF COMMISSIONERS OF THE CITY OF PASSAIC, AND THE CITY OF PASSAIC, DEFENDANTS.
    Argued January 18, 1928
    Decided April 19, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Sigmund Unger (Arthur T. Vanderbilt, of counsel).
    For the defendants, Joseph H. Betz (Joseph J. Weinberger, of counsel).
   Per Curiam.

The prosecutor of this 'writ, Irving Eeichstein, after having been a member of the police force of the city of Passaic for three years, was discharged, after hearing, upon charges filed against him. The charges were, and he was discharged on a finding, that on the 28th day of May, 1927, he willfully, in violation of sections 14 and 17 of the police rules and regulations, accepted a bribe of $5 from one Sam Maggio for the purpose of preventing the prosecution of one John King, to whom a summons had been issued for speeding, in violation of the motor vehicle laws.

At the hearing, the accused was represented by counsel, the testimony taken stenographically is returned with the record.

The first point made by the accused is that the director of public safety conducted an investigation, and not a trial, as required by the statute, and that he allowed incompetent evidence to be introduced and showed bias and prejudice, and that the prosecutor did not receive a fair trial.

But the fact that the director, during the course of the proceeding, referred to it casually as an “investigation” is of no moment. Counsel for accused admitted service of the charges, and announced that he was ready to meet them. We think that he had a fair trial and that ho such bias or prejudice was shown as would justify us in disturbing the finding. In such a proceeding as this, a fair trial does not mean that all the formalities should be observed that are used in a «trial of criminals for minor offenses in courts or by magistrates. . The essential thing is that substantial justice should be regarded, and the court, on review by certiorari, will only look to see if there was sufficient legal evidence to justify the action below. Ayers v. Newark, 49 N. J. L. 170. We do not find that the accused was prejudiced legally either by admission or rejection of evidence. We think there is no merit in the first point.

The second point is that the charges against the accused were not properly signed as required by the statute, and that the record does not disclose that they were ever filed in the office of the head of the police department as required by the statute.

This point seems to be ill-founded in point of fact. Not only were the charges signed but they were sworn to, and we think the return made by the commissioner shows that the charges were filed, and presumably in his office. Moreover, as we have pointed out, the accused, through his counsel, admitted service of the charges, and announced himself ready to meet them.

The next point is that the charges were improperly delayed for six months and the accused was denied a reasonable opportunity to prepare his defense.

This point seems likewise to be ill-founded in point of fact. The charge seems to have been prosecuted as soon as brought to the attention of the commissioner, and we are unable to perceive that he was denied reasonable opportunity to prepare his defense. In fact, the admission of the accused is to the contrary.

The next point is that there was no substantial basis for the order dismissing the accused.

We think there is no merit in this. We think the testimony very clearly tends to show that the accused accepted $5 as a bribe, which was paid to him by Maggio on Monroe street, across the way from the Capitol theatre, for the purpose of “killing the ticket,” and no reason is apparent why the commissioner should have disbelieved that testimony.

The order brought up for review will be affirmed, with costs.


text:
    BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. BENJAMIN R. FAUNCE, DEFENDANT. BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. EDWARD L. STOCKTON, DEFENDANT.
    Submitted January 27, 1928
    Decided April 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the plaintiff, Edward L. Katzenbach, attorney-general.
    For the defendants, Robert Peacock.

   Per Curiam.

These cases have been argued together. Both defendants were charged with the violation of section 2 of an act entitled “An act to regulate the practice of pharmacy in this state.” 3 Gomp. Stat., p. 3944.

The defendants were both convicted in the small cause court, but on appeal to the Common Pleas, that court granted a nonsuit.

We consider that the legal propriety of that action is fairly debatable, and a writ of certiorari is granted in each case.


author: Flannagan, J.

text:
    Essex County Court of Common Pleas.
    THOMAS ROACH, PETITIONER-APPELLEE, v. YELLOW CAB COMPANY, INCORPORATED, RESPONDENT-APPELLANT.
    For the petitioner-appellee, David Roskein.

    For the respondent-appellant, John A. Bernhard.

   Flannagan, J.

This is an appeal from an award made by the workmen’s compensation burean.

The burden was upon the petitioner, a taxicab driver for the respondent Yellow Cab Company, to show that his injuries arose out of his employment. He undertakes to do this by his own testimony to the effect that an assault upon him, which caused his injuries, was made as a retaliation by a driver of a competing concern because he had earlier that night accepted as a passenger a man who was at the time being conducted by such rival driver to his own cab but who, upon seeing the cab (a yellow cab) driven by petitioner; preferred that cab and insisted upon taking it. The petitioner relies upon Emerich v. Slavonian Roman Greek Catholic Church, 93 N. J. L. 282. In that case an employe was shot and killed while insisting, in the discharge of the duties of his employment, upon the proper change due his employer upon a sale which he was in the act of completing for his employer. It was found as a fact in that case that his injuries thus arose out of his employment.

But the question in the instant case is whether or not, as matter of fact, the incident alleged as above recited really did in fact actually occur. If the assault was by way of retaliation for this act of petitioner, it would be one thing, but if the assault was due to some personal quarrel, grudge or difference, provoked by petitioner in connection with his own affairs, it would be quite another.

The particulars of this alleged incident are these: The petitioner testifies that he received a “box call” to go to a certain point (South Orange avenue near Sanford avenue) for a “fare.” Upon going there he met a man who had been drinking coming out of a cafe and cigar store in the company of a driver of a rival cab company. This man, on seeing petitioner’s yellow cab, stated that he wanted a yellow cab and insisted upon taking petitioner’s cab. The petitioner then drove this passenger to a certain butcher shop at Eleventh street, where the passenger got out and spoke to the man in the butcher shop. The petitioner then drove such passenger to a saloon at 120 Orange street, where the rival driver who had followed him threatened that he would be “liable to get into trouble.” The petitioner then proceeded alone to the Hudson Manhattan Tube station where he drove his cab into an alleyway used by the Yellow Cab Company, and upon alighting from his cab he was there assaulted by two men, one of whom he recognized as the driver of the rival cab. He thereupon got into his cab and went to look for his assailant who had left the scene.

These allegations all rest upon the uncorroborated testimony of petitioner alone. Whether he received his injuries in the alleyway or elsewhere, how he received them, and whether he received them in consequence of a controversy connected with his employment and arising out of some act in the performance of his employer’s business, rests exclusively upon his own testimony.

His testimony should be accepted only with some hesitancy. Eor a long period until recent years the testimony of an interested party was not deemed of sufficient credibility to justify its admission at all. See 1 Wigm. Ev. (2d ed.) 1004, § 577.

The surrounding circumstances cast suspicion upon petitioner’s testimony. Although he is very clear as to every essential detail upon which his case rests his memory is markedly defective as to occurrences earlier in the evening before those events are stated to have commenced. His conduct also seems inconsistent with the natural course to pursue, in that he failed at the time of the assault to notify the respondent’s starter, who was located at the tube station, but drove off in his cab alone in an unsuccessful effort to apprehend his assailants. As these persons were in superior force, and at least one of them from a’ rival concern, it seems unnatural that he did not speak to some of his associate drivers and to the starter and obtain assistance in overtaking and apprehending his assailants. While he now testifies that he recognized one of his assailants as the driver of the opposition cab company who had threatened him, he said in a previous statement that he did not recognize his assailant.

The most serious obstacle, however, to the acceptance of petitioner’s story seems to me is his failure either to produce corroboration of his testimony to the facts and circumstances at the time he took the pasenger from the rival driver or to give any satisfactory explanation of his failure to do so. It is from these occurrences that he asks the court to hold that the assault upon him was in retaliation for an act done by him in pursuit of his employer’s business. He relies upon these circumstances to establish an “accident” arising out of his employment.

It is obvious that his testimony in regard to these alleged occurrences was possible of corroboration by the production of the passenger who preferred the yellow cab to the one he was being led to by the competing driver. Yet he gives no reason for not producing this passenger as a witness, and shows no effort to find or produce him. The passenger was slightly intoxicated and may well have attracted attention and been known at the cafe where the petitioner found him or at the saloon where petitioner left him. He stopped at a butcher shop at Eleventh street and spoke to the man in the shop. Yet the petitioner shows no inquiry of the man in the butcher shop as to whether the passenger was known to him, and shows no inquiry at either of the two saloons at which he was seen on the night in question. Indeed, the petitioner discloses no effort whatever to find this witness who could corroborate his testimony in vital essentials. He offers no explanation or excuse for his failure to produce him. If the defendant had made inquiry of the butcher and at the places where he saw and took his passenger and had made any effort to find and produce this witness it would have been easy to show it.

Where in a suit for damages by a husband and wife for personal injuries to the wife in an automobile accident case, the plaintiffs failed to call the physicians, who attended the wife, to support her claim, the Supreme Court said: “The plaintiffs did not call the physicians who had attended Mrs. Nelson immediately after the accident. The jury had the right to infer that they were not called because, if called, they would not testify favorably to the plaintiffs on the subject of Mrs. Nelson’s injury.” Nelson v. Public Service Transportation Co., 5 N. J. Mis. R. 73. In State v. Raymond, 53 N. J. L. 260, the court says (at p. 262) : “The jury lawfully may draw unfavorable inferences against a party who can, but does not, produce a witness whose testimony would aid his cause if his cause were just.” The court added: “And to prevent such an inference for the non-production of Bouton the prisoner was entitled to the benefit of his excuse of inability.” Page 262.

In State v. Codington, 80 N. J. L. 496, the court (Chief Justice Gummere writing the opinion) approved the charge of the trial court to the jury that “you have a right to consider the fact that others who might have helped to establish these things by corroboration were not called.” Page 499. The same principle was applied also in State v. Callaghan, 76 Id. 426 (at p. 428).

The court would not, of course, be justified in treating the absence of this witness as equivalent to affirmative proof, viz., as equivalent to his presence with adverse testimony by him. But the court is justified in drawing inferences unfavorable to petitioner from the witness’ absence under the circumstances recited.

The petitioner’s story is not convincing. It is branded with self-interest, improbable in the respects above indicated, and is, without explanation, uncorroborated in its most vital aspects where corroboration was apparently, with due diligence, obtainable. I am constrained, on the whole, to reject it. As the burden was upon the petitioner I find that the injuries did not arise out of his employment.

Let counsel prepare findings in accordance with rule six of this court and with this memorandum.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PATRICK J. DOWLING, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
   This is a workmen’s compensation case brought under Pamph. L. 1911, ch. 95, and the various supplements and amendments thereto.

A petition was filed by the petitioner, and an answer thereto was filed by the respondent, and the matter set down from time to time until the 24th day of June, 1927, when the said matter came on for hearing before the Honorable Charles E. Corbin, deputy commissioner of workmen’s compensation at the Department of Labor Building, 571 Jersey avenue, Jersey City, New Jersey, in the presence of James J. Kearney, attorney of petitioner, and James O. Boyd, attorney of respondent.

From the evidence and stipulation entered into between the petitioner and the respondent, it appears that the petitioner met with an accident on October 19th,. 1925, which accident arose out of, and in the course of, his employment with the respondent.

The accident consisted of the petitioner stumbling over an obstruction on the ground and fell headfirst into a concrete abutment.

The petitioner was paid temporary disability amounting to $72.86, which compensation for temporary disability covered the periods from October 19th to October 26th, inclusive, and from November 30th to December 18th, inclusive, since which time the respondent avers that he has been fully recovered. The petitioner put one doctor on the stand, who testified that petitioner sustained a scalp wound as a result of .the accident, and that so far as he could determine there was no fracture of the skull, or damage to the brain. On cross-examination the plaintiff’s doctor admitted that he did not make any extended tests to determine what causes the dizzy sensations which the petitioner said that he had, but attributed the condition from which the petitioner said he was suffering to the blow on the head. The respondent put on a well-known neurologist, who testified that the petitioner was suffering from arterio sclerosis and a faulty metabolism, which was in no way connected with the accident ; that he made a urinalysis, the result of which indicated that the petitioner had a faulty metabolism. He also discovered that the petitioner had an abnormal high blood pressure, and further testified that all these conditions would account for dizzy spells, and that in his opinion the petitioner was not suffering from any after effects of the accident of October 19th, 1925. The respondent also placed other doctors on the stand who'testified substantially the same as the neurologist.

It is my opinion, based on the evidence and stipulation, that this petitioner is not suffering from any permanent disability as a result of the injuries he sustained on October 19th, 1925, and the petition should therefore be dismissed.

It is therefore, on this 25th day of July, 1927, ordered that the judgment final be entered in favor of the respondent and against the petitioner, and that the prayer of the petitioner be denied, and the petition dismissed.

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commisioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LEONARD L. SMITH, PETITIONER, v. THOMAS B. BOSS, TRADING AS LUZERNE FARMS, RESPONDENT.
   Petitioner, Leonard L. Smith, by his petition, claims compensation because of an accident occurring on January 9th, 1927, while petitioner was employed around the farm of respondent, and was then engaged in raking up and burning leaves, and because of an explosion of something in the leaves, petitioner’s eye was destroyed, and it also appears by the petition that petitioner’s eye was removed; that his wages were $60 a month, plus the furnishing of a house, fuel, wood, milk and fruit. Petitioner claims the injury occurred in the course of his employment, and the respondent, while admitting the injury, denied that the injury occurred in the course of the employment of the petitioner, and claimed that the injury occurred at a time when the petitioner was outside of the course of his employment.

Upon the hearing it was established that the petitioner had been working as a general farm hand around respondent’s place, doing whatever he was told to do by the manager of respondent, Mr. Earl Kling; that a short time previous to January 9th, 1927, he was directed to remove from the house he was then occupying, and was informed by Mr. Kling that the respondent would shortly appear upon the place, and that Mr. Kling desired the place to be cleaned up, and that the petitioner was also directed to clean up the leaves and the yard and house adjoining the house where the petitioner was then living, and petitioner would have the right to use the premises which he was to clean up, and was directed to move in said premises after he had cleaned up. No specific time was set for the petitioner to perform this work, but he was told by the respondent’s manager that it should be done within a certain time. On the morning when the accident occurred petitioner had performed various duties around the farm,- and in the afternoon of that day proceeded to rake up the leaves around the property not occupied by him, but adjoining, and proceeded to set fire to the leaves, and while engaged in this work an explosion of some dangerous explosive took place in the pile of burning leaves, and a missile or bullet struck the eye of the petitioner, injuring it so badly that after the arrival of petitioner at the hospital his eye was removed.

On the afternoon in question the petitioner had not been paid his wages, and was subject to other duties at any time during that day by the respondent’s manager. The testimony showed that the petitioner’s wages were $13.85 a week in cash, with the use of the house and certain other elements of maintenance, as set forth in petitioner’s petition, which should be valued at $3 a week under the statute. This would constitute a total wage of $16.85 a week, and a compensation rate of $11.23 a week. Petitioner testified, and it is held to be a fact, that he was incapacitated from working from January 9th, 1927, to March 10th, 1927, and he is entitled to receive compensation at the rate of eight weeks’ period of temporary disability, at the rate of $11.23 for one hundred weeks of permanent injury, petitioner having lost an eye, making a total amount which petitioner is entitled to receive as against the respondent of one hundred and eight weeks. Petitioner also incurred a hospital bill of $65 and is entitled to have that amount, and William N. Cooper, appearing for the petitioner as counsel, should be paid the sum of $125 for his services.

W. E. Stubbs, Deputy Commisioner.


author: Harry J. Goas, Deputy Commisioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MANUEL CONSTANTINO, PETITIONER, v. DU PONT VISCOLOID COMPANY, RESPONDENT.
    For the petitioner, Charles Becker.

    For the respondent, Abel Klaw.

   :¡: ij; % % <; #

The pleadings as filed in this matter on behalf of the petitioner, Manuel Constantino, show that the said petitioner was in the employ of the respondent on August 23d, 1926, at the respondent’s plant, located at Arlington, New Jersey, at the rate of $24 per week; that the petitioner sustained an accidental injury on August 25th, 1926, which accidental injury arose out of and in the course of the petitioner’s employment ;

That the petitioner was immediately furnished medical, surgical and hospital services by the respondent, and that he returned to work on August 28th, 1926, and has continued to work for the respondent since that date, at the rate of wage equal to or greater than that which he was earning at the time of the accident;

That the petitioner filed with this bureau a petition against the respondent under date of May 31st, 1927.

It appears from the evidence in the case as submitted by the respective parties that at the time of the filing of the petition no dispute existed as to the amount of compensation due the petitioner, nor had the parties had an opportunity to attempt to agree upon the amount of compensation due under the Workmen’s Compensation law of New Jersey. Section 12 of the law as in effect on the date aforesaid prescribes the method by which an aggrieved injured employe may petition this bureau for an award of compensation. The petition in this cause was intended to be filed in accordance with the aforesaid section of the law, which prescribes the exclusive rights of the petitioner.

The aforementioned section of the law provides inter alia that in case of a dispute over, or failure to agree upon, a claim for compensation between the employer and employe, either party may submit the claim to the workmen’s compensation bureau as prescribed in paragraph 5 of the supplement to this act approved February 28th, 1918, as chapter 149;

The rights of the petitioner to submit the claim are limited to the aforesaid acts.

It appears conclusively from the pleadings as filed by the petitioner in this cause and from the evidence submitted by the parties that at the time of the filing of the petition there existed no dispute as to the nature and effect of the injuries and the amount of compensation due therefor, neither had the parties failed to agree upon a claim for compensation.

Upon motion made by counsel for the respondent that the petition be dismissed for the reason that at the time the petition was filed the Workmen’s Compensation law of New Jersey gave the petitioner no right to file the same, I have concluded that under section 18 of the law the motion should be granted.

Harry J. Goas, Deputy Commisioner.