author: Lance, J. C. C.

text:
    CHARLES VICTOR SAMPSON, PETITIONER-APPELLEE, v. CHARLES E. THORNTON, RESPONDENT-APPELLANT.
    Hunterdon County Court.
    Decided November 6, 1950.

      Mr. St. Elmo Ferrara (Mr. Russell Fleming, on the argument), for petitioner-appellee.

      Mr. Gerald T. Foley (Mr. Roland Vreeland, on the argument), for respondent-appellant.
   Lance, J. C. C.

This is an appeal from a determination and judgment entered in the Workmen’s Compensation Bureau, New Jersey Department of Labor, awarding compensation to the petitioner-appellee (hereinafter referred to as petitioner) under our Workmen’s Compensation Act.

A single issue is involved. Is the mere examination of an injured employee by a physician engaged by the employer’s insurance carrier, without the rendering of any treatment, sufficient to toll the running of the period of limitation of our Workmen’s Compensation Act?

The accident occurred October 19, 1946. Temporary disability was paid from the date of the accident to December 30, 1946, and 1% of total as compensation for permanent disability was paid on June 3, 1947. This was the last money payment of compensation»and was made well over two years' prior to the filing of the claim petition. The claim petition was filed August 2, 1949.

The petitioner, however, in April, 1948, wrote a letter to the respondent’s insurance carrier, complaining that his eye .“was not right yet” and that he got great pain in his head at times. The letter further states: “Thought I would write to you and see if there could be something done about it before I give it to my counsel.” The insurance carrier arranged for an examination of-petitioner, which was made on June 11, 1948. Upon a reading of the transcript, I find that •no treatment was given the petitioner and that petitioner himself so testified on more than one occasion, and I further find that the sole purpose of this examination was to furnish information as to the petitioner’s condition to the insurance carrier.

R. S. 34:15-51 provides in part as follows:

“Every claimant for compensation * * * shall * * * 'file a petition * * * within two years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then within two years after the failure of the employer to make payment pursuant to the •terms of such agreement; or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation. * * * A payment, or agreement to pay by the insurance carrier, shall for the purpose of this section be deemed a payment or agreement by the employer * *

Thus, the Division of Workmen’s Compensation has no jurisdiction to make an award unless the claim petition is filed:

1. within two years after the accident, or

2. within two years after the failure of the employer to make payment pursuant to agreement, or

3. within two years after the last payment of compensation.

In effect, petitioner argues that the examination of himself by the insurance carrier’s doctor on June 11, 1948, constituted for the purposes of R. S. 34:15-51 “the last payment of compensation” in the ease; that, therefore, he falls within the third classification above set forth and that consequently his claim petition was filed within the requisite two-year period.

The furnishing of medical services to an employee by the employer or employer’s carrier constitutes “payment of compensation” for the purpose of R. S. 34:15-51. It was so decided in Donoher v. American Steel and Wire Co., 2 N. J. Super. 72, 64 A. 2d 622 (App. Div. 1949). The court there stated that the question appeared to be novel in this State.

In this decision New Jersey follows the majority view in the American states. “Where an employer or his insurance carrier has furnished or paid for medical and hospital services to an injured employee, it is generally held that this constitutes a payment of compensation, or a waiver which suspends the running of the time for filing a claim for compensation * * 58 Am. Jur. 580, Workmen’s Compensation, § 417. See also 144 A. L. R. 617.

However, the instant case differs from the Donoher case in that no treatment was given but rather that there was merely an examination. Both petitioner and respondent concede that there is no New Jersey case in point, and it would appear that the problem has not crept into reported decisions with frequency elsewhere.

In Hunt v. Industrial Accident Commission, 43 Cal. App. 373, 185 P. 215 (1918), section 11 of the California Workmen’s Compensation Act (St. 1917, p. 831) was construed. It provided that the payment or giving of compensation for injuries of the employee on the part of his employer extends the time within which an application for compensation should be filed. The court said: “While it is true that some seven months before the date of the filing of his application with the commission he went to his employer’s physician, and that he went again several times thereafter at dates not given by him, he testifies that he received no treatment and no medicine at any of these visits; while as to the visit of March 15, 1919, it is clear that he was sent to the physician on that occasion for an examination as to the nature and extent of his injuries in order that the claims agent of his employer might be able to determine the merits of his claim, and that upon that occasion no treatment was given or medicine supplied. There was therefore no service rendered which could be construed to amount to compensation under the provision of the Workmen’s Compensation Act which would prolong the prescribed time for the filing of his claim.” This case was decided early in the history of workmen’s compensation legislation in this country.

A more recent case sets forth the public policy involved, in Garden Farm Dairy v. Dorchak, 102 Colo. 36, 76 P. 2d 743 (1938). The Colorado Workmen’s Compensation Act (1935 C. S. A., vol. 3, c. 97, § 363) provides: “The right to compensation and benefits, as provided by this article, shall be barred unless within six months after the injury * * * a notice claiming compensation shall be filed with the commission. This limitation shall not apply to any claimant to whom compensation has been paid.” Claimant failed to file within the six-months’ period, but during this time, the insurance carrier of the employer procured a physician and surgeon to examine claimant, who neither gave nor suggested any treatment. The Colorado court said: “We think there is no showing of a payment of compensation which removes the bar of the statute. To hold that a mere examination of a claimant by a physician and surgeon employed by the insurance carrier, without treatment, is a furnishing of medical services in the sense that it constitutes payment of compensation which removes the bar of the statute, would force employers and insurance carriers to deny liability in all cases; because if they sought to obtain information through medical examination upon which to admit or deny liability, they would open the way for the filing of claims against them without any limitations as to time.” Although it appears the effect of the payment of compensation under the Colorado statute is to toll indefinitely the running of the statutory period barring claims, whereas the effect of payment of compensation under the New Jersey statute is to merely extend the running oí the statutory period for an additional two years, nevertheless, the argument of public policy advanced by the Supreme Court of Colorado applies with equal vigor in the interpretation of our statute.

The employer and carrier are not estopped to invoke the provisions of R. S. 34:15-51. No statements or conduct by either are disclosed upon which petitioner might have relied, and by reason of which reliance, he failed to file in time.

The judgment entered in the Workmen’s Compensation Bureau will be reversed.


source: Caselaw Access Project

author: Eastwood, J. A. D.

license: Public Domain

text:
    RUTH S. RHOADES, PLAINTIFF-RESPONDENT AND APPELLANT, v. E. RALPH RHOADES, DEFENDANT-APPELLANT AND RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1950
    Decided December 6, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr., Samuel A. Larner argued the cause for the plaintiff-respondent and appellant (Messrs. Budd & Lamer, attorneys).

      Mr. Robert R. Daly argued the cause for the defendant-appellant and respondent (Messrs. Daly, Hillis, Hall McCormick, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The plaintiff, Ruth S. Rhoades, appeals from an order of the Chancery Division denying maintenance pendente lite and the defendant, E. Ralph Rhoades, appeals from the judgment dismissing his counterclaim for annulment of the marriage.

The parties were married on July 25, 1947, and cohabited thereafter until August, 1948, on which latter date the defendant refused to longer maintain the marital relationship with his wife, although they continued to occupy the same apartment. The plaintiff’s complaint seeks separate maintenance on the ground of abandonment and non-support. The defendant’s answer alleges that his refusal to further live with and support his wife is justified, asserting that their marriage was void because of certain false representations made to him by his wife. The defendant asserts in his counterclaim praying for an annulment of the marriage, that to induce him to marry her, plaintiff at and prior to the performance of the marriage ceremony, falsely represented to him that she had borne a male child by him; that defendant agreed to and did enter into said marriage “solely and only because of her representing that she had said child by him that he was ignorant of the falsity of this representation until plaintiff’s confession thereof in August, 1948; that thereupon he immediately separated from her and refused thereafter to continue the marital relationship. On November 18, 1949, the court denied plaintiff’s application for alimony pendente lite, from which order no appeal was taken. A similar application was also denied on April 21, 1950. Following the submission of affidavits by the parties and oral argument, plaintiff’s application for a dismissal of defendant’s counterclaim and the entry of summary judgment thereon on the ground that it did not set forth a cause of action, was granted.

The affidavits submitted to the court reveal that in 1945, prior to their marriage, the parties indulged in sexual intercourse; that in June, 1943, the defendant married another woman, from whom he obtained a divorce on March 26, 1947; that the plaintiff represented to defendant that as the result of their illicit relationship, a child was born and relying upon the truthfulness thereof, he married her on July 25, 1947; that the reason she did not tell her husband of the child’s birth previously, was because she did not want to disturb the peace and harmony of his other marriage and she purposely delayed so informing him until after he had obtained the divorce heretofore mentioned; that the defendant repeatedly made inquiry of his wife as to the whereabouts of the child and was given several contradictory stories, which upon inquiry, turned out to be false; and that actually no such child was ever born. Defendant concedes that the plaintiff was not promiscuous. The parties raise no procedural questions as to the manner in which the application for summary judgment of dismissal of the counterclaim was presented and decided.

The question to be determined is whether the allegations of the counterclaim set forth such fraud as will justify the voiding of their marriage. As to what false representations will constitute fraud sufficient to justify the annulment of a marriage have been considered in a number of cases decided by the courts of New Jersey. At the outset, it must be conceded that the cases in the various jurisdictions are not in accord, but we are inclined to think that the disagreement arises over whether the rule applying to ordinary contracts shall prevail or the rule that the marriage contract is one in which the public is concerned and, therefore, to justify annulment, there must be proof of fraud of an extreme character affecting its very essence. The controlling New Jersey rule is stated in the leading case of Carris v. Carris, 24 N. J. Eq. 516 (E. & A. 1873), in the following language:

“The general principle of the law is, that fraud in a material part, vitiates a contract, and the only reason why it does not apply with full force to the marriage contract is, that marriage is sui generis in many respects, and should not be vitiated even if fraudulent, when against ‘good policy, sound morality, and the peculiar nature of the relation.’ To be free from that restriction, the fraud must be of an extreme kind, and in an essential of the contract.”

The Carris case has been cited with approval in numerous decisions, the most recent of which is Akrep v. Akrep, 1 N. J. 268 (Sup. Ct. 1949). In Few Jersey, proof of fraud sufficient to vitiate ordinary contracts does not apply to the marriage contract. Carris v. Carris, supra; Akrep v. Akrep, supra. For is annulment justified where there has been premarital incontinence. Carris v. Carris, supra; States v. States, 37 N. J. Eq. 195, 196 (Ch. 1883); Seilheimer v. Seilheimer, 40 N. J. Eq. 412, 413 (Ch. 1885); Trimpe v. Trimpe, 65 A. 744 (Ch. 1907, not officially reported); Lindquist v. Lindquist, 130 N. J. Eq. 11 (E. & A. 1941). A consummated marriage will not be annulled where the injured party has had ample time to make thorough inquiry as to the truth or falsity of the representations that induced him to enter into the marriage contract and fails to do so. See States v. States, supra; Woodward v. Heichelbech, 97 N. J. Eq. 253 (Ch. 1925). Mr. Justice Heher, speaking for the Court of Errors and Appeals in the Lindquist case, supra, stated: “In regard to continence, as well as to other personal traits and attributes of character, it is the duty of a party to make due inquiry beforehand, and not to ask the law to relieve him from a position into which his own indiscretion or want of diligence has led him.” Fraudulent representation sufficient to justify its annulment is the subject of ascertainment in every case. Akrep v. Akrep, supra; Ysern v. Horter, 91 N. J. Eq. 189 (Ch. 1920); Bolmer v. Edsall, 90 N. J. Eq. 299, 300 (Ch. 1919); Nocenti v. Ruberti, 17 N. J. Misc. 21 (Ch. 1933).

The only case cited by defendant in support of his contention is the case of Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 63 L. R. A. 92, 95 Am. St. Rep. 609, 67 N. E. 63. The Di Lorenzo case rests upon a different construction of the rule of law applicable to the marriage contract than.that prevailing in our State. The Few York courts hold, as it did in the Li Lorenzo case, that proof of fraud sufficient to set aside ail ordinary contract is all that is required to terminate a marriage contract. In the Di Lorenzo case, the Court of Appeals in reversing the Appellate Division of the Supreme Court, which had refused to annul the marriage, stated:

“The statutes of this state declare that marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties, capable in law of contracting, is essential. 2 Rev. St. (1st ed.) 138. It certainly does differ from ordinary common-law contracts by reason of its subject-matter and of the supervision which the state exercises over the marriage relation which the contract institutes. In such respects it is sui generis. While the marriage relation, in its legal aspect, has no peculiar sanctity as a social institution, a due regard for its consequences and for the orderly constitution of society has caused it to be regulated by laws in its conduct as in its dissolution. Judge Story said of it that it is ‘something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation different from what belong to ordinary contracts.’ Story’s Conflict of Laws, § 108, note. While, then, it is true that marriage contracts are based upon considerations peculiar to themselves, and that public policy is concerned with the regulation of the family relation, nevertheless our law considers marriage in no other light than as a civil contract. Kujek v. Goldman, 150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670.”

The fraudulent representation relied upon here by the defendant, did not, in our opinion, amount to the species of fraud contemplated by the New Jersey rule. See States v. States, supra,; Seilheimer v. Seilheimer, supra; and Lindquist v. Lindquist, supra. In the States case the court held that the husband who had premarital sexual intercourse with his wife was not entitled to have his marriage annulled, on the ground that she falsely represented herself to be pregnant by him, but who, in fact, at the time of the representation, was with child by another man. In the Seilheimer case, which is factually analogous to the States case, the annulment of the marriage was denied. In the Lvndquist case, Mr. Justice Holier, in an excellent opinion, discusses the prevailing rule of law in New Jersey, reviews the cases pertaining thereto and supports the rule laid down in the Seilheimer and Slates cases.

A court should not annul a marriage on the ground of fraud except in extreme cases, where the particular fraud goes to the very essence of the marriage relation, and especially is this true where, as here, the marriage has been fully consummated and the parties have actually assumed all the mutual rights and duties of the relation. In such a case considerations of public policy intervene, and our courts are loath to annul a marriage. An executed contract of marriage, accompanied by full consummation, differs in many respects from ordinary contracts. It creates a status which society is interested in maintaining. Marshall v. Marshall, 300 Pac. 816 (Calif. Sup. Ct. 1931), 75 A. L. R. 661. “In that contract of marriage which forms the gateway to the status of marriage, the parties take each other for better, for worse, for richer, for poorer, to cherish each other in sickness and in health. Consequently, a mistake, whether resulting from accident, or in general fraudulent practices, in respect to character, fortune, health, or the like, does not render void what is done. A man who means to act upon such representations should verify them by his own inquiries. The law presumes that he uses due caution in a matter in which his happiness for life is so materially involved, and it makes no provision for the relief of a blind credulity, however it may have been produced.” Schouler on Domestic Relations, § 23. Accepting, as we must, the defendant’s contention that the plaintiff falsely represented the birth of a child, it necessarily follows that no such child was born as a consequence of their premarital sexual relations. How then, can defendant successfully contend that the very essence of the marriage contract has been affected? We fail to perceive the force of such an argument.

With respect to plaintiff’s appeal from the order denying alimony pendente lite, we are of the opinion that it should be affirmed. Plaintiff did not take an appeal from the first order denying such an allowance. The court later permitted a re-hearing and the application was again denied. Such an allowance is discretionary. Judge McLean had the parties before him with a disclosure of the facts as to their respective financial status and incomes, from which it appears that the wife has been regularly employed since her husband abandoned her and has lived in the apartment rented by him. Our review of the record satisfies us that there was no abuse of discretion by the court.

The judgment is affirmed, with costs.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN SEAMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued November 6, 1950
    Decided December 6, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Wallace S. De Puy argued the cause for the plaintiff-respondent (Mr. Walter G. Winne, attorney).

      Mr. Jacob J. Levey argued the cause for the defendant-appellant.
   The opinion of the court was delivered by

Eastwood, J. A. D.

The defendant, John Seaman, appeals from his conviction on an indictment charging him (1) with breaking and entering the premises of a motor vehicle agency in the Village of Ridgefield Park, Bergen County, and (2) larceny of an adding machine. One Patrick Martinetti and one Joseph Broceo were named in the indictment with Seaman as co-defendants. Martinetti and Broceo entered pleas of guilty and testified as witnesses for the State.

The facts are substantially as follows: Martinetti testified that on November 10, 1949, the day preceding the commission of the crime, he and the defendant Seaman had a conversation in Little Perry; that Seaman told Martinetti that there was a place in Kidgefield Park where he could get some money, bills of sale and a machine which looked like an adding machine; that subsequently, the same day, he drove Martinetti to Kidgefield Park, pointed out the motor vehicle agency in question and told him how he could gain entrance, promising that Martinetti and Broceo would get $300 each for the job; that Broceo and he (Martinetti) entered the premises in the early hours of the following morning; not finding either money or bills of sale, they took the adding machine; that before they were able to drive away, they were stopped by a local policeman who, upon discovery of the machine in their car, took them into custody; whereupon they confessed to the crime, stating that they committed it at Seaman’s instigation. Seaman did not accompany Martinetti and Broceo nor was he present. He denied the testimony of Martinetti and Broceo, asserting that he was not in Little Perry or Ridgefield Park at the times fixed by Martinetti. Preceding the trial, defendant obtained a bill of particulars, wherein he was specifically informed that the State did not contend that Seaman was present at the time of the actual commission of the crime and that the State would prove defendant’s guilt “as an accessory before the fact.” At the end of the State’s case and the entire case, motions for acquittal were made by defendant and denied by the court, on the sole ground: “* * * that the evidence that we have here to implicate this defendant only comes from the mouth of one Martinetti. * * * that there has been not the slightest degree of corroboration, but that the only testimony comes from the mouth of an admittedly self-confessed defendant with a long criminal record.”

The defendant advances three grounds for reversal of his conviction, viz.: (1) “Evidence of appellant’s complicity as an accessory before the fact failed to sustain his indictment as a principal;” (2) that the defendant was indicted as principal for the commission of common law felonies and that proof of his guilt as an accessory before the fact fails to sustain either charge; (3) that the court, in its charge, included an erroneous instruction which affected the substantial rights of the defendant.

Neither of the first two grounds nor the theories and arguments offered in support thereof were advanced before the trial court. Defendant having failed to raise these issues below, we might well decline to consider them. State v. Meola, 6 N. J. Super. 214, 219 (App. Div. 1950); State v. Kowalczyk, 3 N. J. 51, 55 (Sup. Ct. 1949). However, both parties having argued them extensively in their briefs and orally, we will discuss them insofar as may be essential to a disposition of the appeal.

The defendant argues that the statute (R. S. 2:115-1) creating the crime commonly known as “breaking and entering,” makes aiding and abetting a substantive offense, distinct from the offense interdicted therein against principals, and evidence of his complicity as an accessory before the fact fails to sustain his conviction as a principal. We are considering, therefore, a statutory high misdemeanor and not a common law felony. •

The pertinent provision of the statute (R. S. 2:115-1) alleged in the first count of the indictment to have been violated, reads as follows:

“Any person who shall, by night, willfully or maliciously break and enter any church, meeting-house, dwelling house; shop, warehouse, mill, barn, stable, outhouse, railway car, canal boat, ship or vessel, or other building' whatever, with intent to kill, rob, steal, commit rape, mayhem or battery, and his counselors, procurers, aiders and abettors, shall be guilty of a high misdemeanor.”

We must assume that the defendant concedes that the verdict is supported by the weight of the evidence, as he does not assert it is contrary thereto. He contends, however, that the State’s proofs establish his guilt as an accessory and to sustain his conviction he should have been so indicted. lie relies heavily on the case of State v. Wilson, 79 N. J. L. 241 (Sup. Ct. 1910); affirmed, 80 N. J. L. 467 (E. & A. 1910). The statutory offense of abortion charged against Wilson did not specifically allude to aiding and abetting, whereas the pertinent statute here specifically includes “aiding and abetting” in its castigation. Here, the person who actually commits the crime “and Ms counselor, procurers, aiders and abettors, * * *” are clearly bracketed as principals and both “* * * shall be guilty of a high misdemeanor.” It will be noted that in the applicable statute the conjunctive — not the disjunctive — is used. An examination of the Wilson case reveals that the defendant was charged as a principal although the evidence established that he was an aider and abettor. Wilson sought a reversal of his conviction before the Supreme Court, on the ground that to sustain his conviction, he should have been indicted as an accessory. The court held that the distinction between felonies and misdemeanors is not observed in onr criminal code and “the rale is that one who would have been an aider or abettor, i. e., an accessory before the fact, if the offence had been a felony, may be indicted, tried, and punished as a principal.” The distinction that the defendant seeks to make with respect to the high misdemeanor charged against him in the first count is effectively disposed of in the case of State v. Woodworth, 121 N. J. L. 78 (Sup. Ct. 1938). In the Woodworth case, the defendant was indicted and convicted for robbery as a principal. Upon appeal Woodworth contended he merely aided and abetted another in the commission of the crime; that, where the statute makes aiding and abetting a separate substantive offense, the law requires an indictment therefor and a conviction as such. The Supreme Court held that: “The difficulty with this contention is that the legislature has not, by the cited provision of the Crimes Act, created two separate and distinct misdemeanors. Aiding, procuring and abetting in a robbery is not thereby made a distinct substantive offense, punishable as such.” Under our Crimes Act almost all offenses are classified as misdemeanors or high misdemeanors according to the degree of punishment therefor. The statute, in a few instances, fails to denominate the offense, either as misdemeanor or high misdemeanor, e. g., bigamy and murder, and provides that the offender shall be guilty of bigamy or murder, as the case may be. In misdemeanors, both at common law and under our statutes, all persons concerned therein, if guilty at all, are regarded as principals and may be indicted, tried and punished as such. Such an indictment usually pleads according to legal effect and charges that the accused person or persons committed the crime as principal or principals. At common law, one who aided and abetted the commission of a misdemeanor was, we believe, a principal and not an accessory. Vol. 1, § 80, p. 101, of O’Regan and Schlosser, Criminal Law of New Jersey. In the case of State v. Spence, 81 N. J. L. 265 (Sup. Ct. 1911), the court held that: “The rule therefore as to misdemeanors is that all persons concerned therein, if guilty at all, are regarded as principals, and may be indicted, tried and punished as such. 1 Cyc. 238.” 22 C. J. S., “Criminal Law," § 82 (c), p. 147. See Engeman v. State, 54 N. J. L. 257 (Sup. Ct. 1892); Brown v. State, 62 N. J. L. 666 (E. & A. 1899); State v. Churchill, 105 N. J. L. 123 (E. & A. 1928); State v. Weiss, 130 N. J. L. 149 (Sup. Ct. 1943); State v. Morano, 134 N. J. L. 295 (E. & A. 1946). There was sufficient competent evidence here to support the verdict of the jury establishing defendant’s guilt as an accessory before the fact in the commission of the crime charged in the first count of the indictment. We conclude, therefore, that his indictment and conviction as a principal are valid. We have examined the other cases cited by defendant on this point. They deal with statutes where “aiding and abetting” is clearly made a substantive offense and, therefore, are not analogous to the case at bar.

In view of our foregoing determination, we find it unnecessary to discuss defendant’s second ground of appeal, since it goes only to the conviction upon the larceny count. The sentence imposed is fully supported by the verdict upon the first count of the indictment. In passing, we raise the query as to whether the case of State v. Woodworth, supra, is not dispositive of the second ground of appeal.

We find no error in that part of the court’s charge of which the defendant complains, to wit:

“* * * should I be in error in charging you on what the law is and should the defendant thereby be aggrieved he would have redress in a higher court. The State has no redress in any case. So far as the State is concerned the case is over when you bring in your verdict. So, it is important that you take the law from me and apply it to the fads as you find them to be.”

Assuming, arguendo, that it was erroneous, no objection was made thereto by defendant and he is not entitled to now raise it for the first time on appeal unless it appears that the defendant was prejudiced and suffered manifest injury thereby. Rule 1:2—19, as amended. See State v. Craig, 9 N. J. Super. 18, 25 (App. Div. 1950). We find no such prejudice or injury here. Our examination of the entire charge persuades us that the trial judge fairly and accurately instructed the jury as to the applicable law. While the instruction complained of correctly stated the law, we think it might well have been omitted.,

The judgment of conviction is affirmed.


author: Proctor, J. A. D.

text:
    FRANCES MAZZI, IN HER OWN RIGHT, AND PEGGE DIANE MATUSHAK, BY AGNES MATUSHAK, HER MOTHER AS NEXT FRIEND AND GUARDIAN AD LITEM, PLAINTIFFS-APPELLANTS, v. GUS STEIN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 8, 1950.

      Before Judges Freund, Proctor and Rogers.

      Mr. August C. Michaelis argued the cause for the appellant.

      Mr. James B. Emory argued the cause for the respondent (Messrs. Markley & Broadhurst, attorneys).
   The opinion of the court was delivered by

Proctor, J. A. D.

Plaintiff, Prances Mazzi, appeals from an adverse judgment entered as a result of a jury verdict in the Passaic County Court, Law Division. She instituted suit against defendant to recover damages for personal injuries suffered by her, while pushing her granddaughter, Pegge Diane Matushak, in a baby carriage across Third • Street, in the City of Passaic. She was struck by an automobile, owned and operated by defendant, who was making a left turn from Monroe Street into Third Street. The infant, Pegge Diane Matushak, by her guardian ad litem, also sued to recover damages for personal injuries sustained, and her mother, Agnes Matushak, sought damages for the medical bill and the breaking of the baby carriage. The jury returned a ten to two verdict against plaintiff, Prances Mazzi, and a unanimous verdict in favor of the infant pola intiff and her mother.

Plaintiff, Prances Mazzi, advances as the sole ground for reversal of the judgment against her that the verdict is contrary to the weight of the evidence.

The verdict in favor of the infant and her mother established that the jury found defendant was negligent. However, our review of the record satisfies us that there was also sufficient evidence of contributory negligence on the part of plaintiff, Prances Mazzi, to support the verdict against her; that the verdict was not the result of mistake, partiality, passion or prejudice. Therefore, the verdict of the jury should not be disturbed. Nusser v. United Parcel Service of N. Y., Inc., 3 N. J. Super. 64 (App. Div. 1949).

Plaintiff points out that contributory negligence was not pleaded in the answer filed by defendant. However, the pretrial order, signed by plaintiff’s attorney, provides, as one of the issues, “b. sole negligence on the part of the plaintiff.” Though the order might have been phrased in a different manner, it is apparent it signified to plaintiff that her own conduct would be in issue at the trial. Rule 3:16; Dragan v. Grossman, 116 N. J. L. 182 (Sup. Ct. 1936); affirmed, 117 N. J. L. 147 (E. & A. 1936). Plaintiff’s attorney must have so construed the above provision of the pretrial order, for the court charged the jury as to plaintiff’s contributory negligence, and plaintiff’s attorney announced he had no objection to the charge. Rule 3:51; Stephens v. Public Service Coordinated Transport, etc., 5 N. J. Super. 128 (App. Div. 1949).

Judgment affirmed, with costs.


author: William J. Brennan, Jr., J. A. D.

text:
    MARIA CIRULLI, PLAINTIFF-RESPONDENT, v. ROSE LICATA AND CALOGERO LICATA, ALSO KNOWN AS CHARLES LICATA, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 5, 1950.

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

      Mr. Harry Gottlieb argued the cause for respondent (Messrs. Cassman & Gottlieb, attorneys).

      Mr. John B. Baratta argued the cause for appellants.
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Defendants appeal from a judgment on a jury verdict entered in Atlantic County Court in plaintiff’s favor in an action for money loaned.

The error alleged is the denial by the trial court of defendants’ motion for judgment made at the close of the case. Only one ground is pressed on this appeal, namely, that the proofs established the loan was made to further an illegal purpose to evade the immigration laws of the United States, thus barring plaintiff as a matter of law from recovery of the money loaned.

The proceeds of the loan were used to defray the cost of the wedding of plaintiff’s grandson, Savanio Bollino, to defendants’ granddaughter, Pose Gueriera. The couple were married February 20, 1949, by a Roman Catholic priest.

Defendants contend the marriage was arranged to prevent Bollino’s deportation in fraud of the immigration laws. Bollino is an Italian national who entered the United States June 28, 1948, on a tourist visa expiring December 28, 1948. Plaintiff supplied the money for his round trip ticket.

The couple testified for the defendants. Bollino testified plaintiff and members of plaintiff’s family had urged him to marry Rose; “You stay here in this country and you get married and stay here with us.” Pose testified she had broken the engagement on at least six occasions and that each time plaintiff or a member of plaintiffs family begged her to marry Bollino; “We want to keep him here. We will be such a happy family. Don’t send him back. Marry him.” The other testimony on defendants’ behalf portrayed plaintiff and her daughter, Amelia, as “forcing” the marriage in a frantic effort to assure Bollino could remain in the United States.

If we assume what defendants contend, that the evidence conclusively shows plaintiff was party to a plan to have Bollino married to forestall his deportation, such purpose, on this record, was not illegal because it was clearly shown the marriage was bona fide. It was solemnized by the Roman Catholic Church; it has been a happy marriage, a child has been born to the couple, and both testified they are content with their bargain.

The act of an alien in entering into a bona fide marriage with the express purpose “to avoid deportation” is not illegal. United States v. Dorto, 5 F. 2d 596 (1st Cir. 1925). The law distinguishes between such a marriage and a marriage entered into not in good faith but as a mere sham, or pretense, formed for the purpose of “evading” a judgment of deportation. Wong Hueng v. Elliott, 179 Fed. 110 (9th Cir. 1910); Hopkins v. Fachant, 130 Fed. 839 (9th Cir. 1904); U. S. ex rel. Lubbers v. Reimer, 22 F. Supp. 573 (D. C. N. Y. 1938); U. S. C. A., Title 8, § 213(a).

Moreover, Bollino’s marriage does not prevent his deportation. United States v. Karnuth, 66 F. Supp. 969 (D. C. N. Y. 1945); Kavadias v. Cross, 82 F. Supp. 716 (D. C. Ind. 1948), 177 F. 2d 497 (7th Cir. 1949). It merely supplies the basis upon which in the event of deportation proceedings he may invoke the discretionary authority of the Attorney General of the United States to suspend the deportation order under U. S. C. A., Title 8, § 155(c), which empowers the Attorney General to suspend deportation of certain aliens who prove good moral character for the preceding five years if the Attorney General finds “(a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent or minor child of such deportable alien.” Kansas, U. S. Immigration, Exclusion and Deportation (3d ed. 1938), p. 156; United States v. District Director of Immigration, 82 F. 2d 630 (7th Cir. 1936). In addition, if deportation is suspended for more than six months, the statute requires a report of the facts to be submitted to the Congress and unless the Congress, within the time limited by the statute, “passes a concurrent resolution stating in substance that it favors the suspension of such deportation,” the Attorney General is required to deport the alien. This statute was in effect on the date of the loan, October 22, 1948.

It follows the proofs did not evidence a loan contract to be viewed in its setting as having the “inherent tendency * * * to use sinister or corrupt means to accomplish the end sought,” Stone v. William Steinen Mfg. Co., 133 N. J. L. 593 (E. & A. 1946); at best a case was made showing there was fair doubt as to such tendency of the contract, in the circumstances, and the question was properly “left to the jury for determination.” McCabe v. Kupper, 4 N. J. Super. 178 (App. Div. 1949).

The evidence of a transaction between plaintiff and Bollino almost three months after the loan and a few weeks before the marriage does not strengthen defendants’ position that no jury question was presented. When Bollino was applying for an extension of his visa and required proof that he had means of support, plaintiff deposited $2,000 to his credit in a savings bank and permitted him to use the bank book to represent these were his funds. That money was returned to plaintiff .Tune 13, 1949, several months after the wedding. Whether this transaction wears a badge of fraud is not an issue in this case; if relevant at all to the earlier loan transaction, it merely supports defendants’ insistence that plaintiff did everything she could to keep Bollino in this country. But we have said that that motive as related to the transaction to help defray the expenses incident to the bona fide marriage is not illegal.

We have been discussing defendants’ argument on their premise the loan was made to further the marriage as a means of preventing deportation. The proofs, however, are conflicting whether plaintiff was party to any such purpose. Tier testimony was Bollino told her he had fallen in love with Rose, and that she first heard of a contemplated marriage when defendant, Charles Licata, visited her on the day prior to the delivery of the money and asked her for a loan because Rose’s parents wanted a big wedding and needed help; that he, Licata, had his own funds tied up in his business but could repay her one month after the wedding. She insisted she had no desire to keep Bollino here except “to have him here for the period of time that the law permitted.” She denied she had done anything to bring the marriage about or that she had ever pressed Rose to go through with it on any occasion when the engagement was broken and said she had no interest at any time in having Bollino stay in this country. Plaintiff’s daughter, Amelia, testified it was Rose’s family, not Bollino’s, who were anxious for the marriage and hoped it would be a means of keeping Bollino here because they, Rose’s family, liked him and thought he would be a good husband for Rose.

On a motion for judgment at the end of the case, the Supreme Court has said, “* * * evidence will not be weighed but ‘all the proofs which support the claim of the party against whom the motions are made must be accepted as true and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. Where fair minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury.’ (Citing cases.)” Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc., 3 N. J. 149, at 154 (1949). There was no error in denying the motion for judgment.

Affirmed.


author: Bigelow, J. A. D.

text:
    GERTRUDE E. McSTAY, ADMINISTRATRIX AD PROS., ETC., PLAINTIFFS-RESPONDENTS, v. EDWARD J. PRZYCHOCKI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1950
    Decided December 7, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John P. Nugent argued the cause for the respondents (Messrs. Nugent & Rollenhagen, attorneys).

      Mr. Harry Green argued the cause for the appellant (Mr. David Green, attorney).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The defendant appeals from a judgment for damages resulting from the death of two children by the tortious act of the defendant. At the pretrial conference, the defendant admitted liability and left as the only issue to be tried, the amount of damages.-

The statute permits the recovery only of a sum that represents the present value of the pecuniary injury sustained by the next of kin. That injury is the "deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased. * * * The jury must weigh probabilities and to a large extent form their estimate of damages on conjectures and uncertainties.” Paulmier v. Erie R. R. Co., 34 N. J. L. 151, 158 (Sup. Ct. 1870). In the present case, the decedents were two boys, one of them twelve years old and the other, ten. Their next of kin were their father, mother, two younger brothers and a baby sister; but before the trial, the father passed away. There was no evidence that, in the short time during which he survived his sons, he suffered any pecuniary injury from their death. In the absence of such proof, no award could properly be made by the jury for damages sustained by him. Cooper v. Shore Electric Co., 63 N. J. L. 558 (E. & A. 1899); Sider v. General Electric Co., 143 N. E. 192; 34 A. L. R. 158 (N. Y. 1924); Van Beeck v. Sabine Towing Co., 300 U. S. 342; 57 S. Ct. 452 (1937). Mr. McStay’s demise left his widow and surviving children without the one who would normally have been the breadwinner of the family. In that situation, the two oldest sons, had they lived, might well have started work at an earlier age and made a larger money contribution to the support of the family than if their father had lived out his life expectancy. Ilis death was a factor for the consideration of the jury in estimating the pecuniary injury to the other beneficiaries of the action. Carter v. West Jersey, etc., Co., 76 N. J. L. 602 (E. & A. 1908). The cause of action vested upon the death of the boys but the quantum, of damages was determinable in the light of the situation existing at the time of the trial. Francis v. A. T. & S. F. R. Co., 253 S. W. 819; 30 A. L. R. 114 (Tex. 1923); Paragon Refining Co. v. Higbea, 153 N. E. 860 (Ohio 1925). This, of course, is similar to the rule in other tort cases; the jury do not shut their eyes to what happens between the day of the accident and the trial.

The principal reasons urged for reversal relate to the charge to the jury and the size of the verdict. Defendant’s counsel had submitted a request to charge based on a passage from Maher v. Magnus Co., 1 N. J. Misc. 469 (Sup. Ct. 1923); affirmed, 99 N. J. L. 514 (E. & A. 1924). The learned trial judge denied the request and then continued his charge to the jury:

“The charge requested says this” (actually the court reads from the Maher opinion, and not the precise words of the request) :

“ ‘In actions of this kind, for the death of a minor, the parent is entitled to the earnings of that child until the child becomes twenty-one years old or is emancipated, that is until the child leaves home and cares for itself. This boy was not earning anything at the time of his death. He had not been able to do any work, he was too young; but the mother would be entitled to the sum, whatever it might be, that he would earn from the time he was able to earn until he was twenty-one years of age; but from that you should deduct the amount of money it would cost the mother during that time to support and clothe and educate him, because you see the mother is entitled to his earnings, but she is bound in return to support him, clothe him and educate him — such education as the mother might give him — until he becomes twenty-one years of age.’
“Ladies and Gentlemen, I do not charge that, because I don’t think that is an accurate description of the law.
“I will give you a hypothetical case, merely for example.
“We will take a boy five years of age, who is killed by a locomotive, we will say. It is common knowledge that most boys stay in school until they are about 18 years old. During that time, the boy has to be clothed and fed and given spending money. It costs his mother and father a great deal of money, more than he would earn after school. It might cost $15 a week to bring that boy up, maybe more. The $15 a week is in the neighborhood of $750 a year. So, then you would take the years from 5 to 18, and there would be quite a sum of money — $10,000 or more, to bring up that boy. Now if his earnings are to be deducted from that, the result would be that the earnings from 18 to 21 would not be nearly as much as it cost to bring him up. Therefore, there would be no damages on the death of any young child, none at all, if you want to take the mathematical process, as that charge does. I feel that the charge is not proper, and I am not going to charge that and you may have an exception.”

The first paragraph quoted above was taken from the charge of the court below in the Maher case and was sustained against the exceptions of the defendant, the tortfeasor. The appellate courts did not consider whether it was equally invulnerable to attack by the representative of the deceased child, and so the trial judge in the instant case was not bound to accept it as a pronouncement of our highest court. We think, however, that the quoted excerpt correctly states the law;, at least if it be not construed to require a. child's mother to continue his education until age 21. Cf. Cohen v. Cohen, 6 N. J. Super. 26 (App. Div. 1949). And if we understand that’ it deals with only one of the many elements that should be considered by the jury in reaching the sum of pecuniary injury. Had the request which was based on it been charged, the jury might have believed that they could not consider pecuniary benefits which the next of kin might receive after the decedents would have attained full age, and could not consider benefits other than in the form of money. The law is settled that the jury is not confined to an estimate of advantages that might have accrued during the minority of the decedent. Graham v. Cons. Traction Co., 64 N. J. L. 10 (Sup. Ct. 1899); Mauthe v. B. & G. Service Station, 5 N. J. Misc. 981 (Sup. Ct. 1927). The statute does not limit the damages to what the next of kin would probably have received from decedents in money. The damages may include the money value of services and care which decedents, had they lived, would probably have given to the next of kin. Carter v. West Jersey, etc., Co., 76 N. J. L. 602 (E. & A. 1908). Earlier in the charge, the jury had been instructed that they “must also take into consideration the expenses that the mother would have in bringing this boy James up, and the same applies equally to Francis.” This brief instruction brought to the jury’s attention the subject of the request.

The court properly declined to charge as requested. But did the court commit reversible error in the comment on the subject? What we consider to be the vice of the charge is that it might well be understood to prohibit the jury from using “the mathematical process,” and to require them to find a verdict for a substantial sum, even though their best judgment might be that the next of kin suffered no pecuniary injury. Such is not the law. Telfer v. Northern R. R. Co., 30 N. J. L. 188 (Sup. Ct. 1862); Graham v. Cons. Traction Co., 62 N. J. L. 90 (Sup. Ct. 1898). Same case, after new trial, 64 N. J. L. 10 (Sup. Ct. 1899); Morhart v. North Jersey St. Ry., 64 N. J. L. 236 (E. & A. 1900); Kopko v. N. Y. Live Poultry Co., 3 N. J. Misc. 498 (Sup. Ct. 1925); affirmed, 102 N. J. L. 440 (E. & A. 1926). But in the present suit, a verdict for nominal damages only would have been clearly inadequate. And the proofs were so lacking in figures, that there was no basis for a precise mathematical calculation. The defendant was not injured even though the jury considered that they were instructed to find for the plaintiff in a substantial sum, and not to attempt a mathematical ascertainment of the injury.

111 estimating the amount of injury to the next of kin, the jury should, and doubtless did, consider the various probabilities which, in the course of the years, might determine the pecuniary advantages which would accrue to the next of kin if the tragic event which gave rise to the action had not occurred: The normal life expectancy of the decedents; their physical, mental and moral characteristics; their likely earnings; the expense to the mother of bringing them up; the life expectancy of the next of kin; all leading to a finding of what contributions and for what periods the decedents would probably have made to the next of kin, or some of them. One factor in the assessment, and an important one, was the likelihood that the decedents would many some day and establish homes of their own, and thereafter, for some years, be able to give but little assistance to their mother and the other children. Doubtless the census reports contain much data touching the percentage of American men who marry, and at what age, etc.

PTo evidence was presented as to the financial circumstances of the McStay family, although such matters bear on the question of damages. Was the family situation such that, had death not intervened, the boys would probably have gone to college, and to, professional school, and have received an allowance from their mother as long as she lived? Or would they have been apt to spend their lives as common laborers, earning the lowest wages, and able to help the other members of the family but little? Of course, in our fluid American society, the economic and social position of no child is fixed unalterably by the circumstances of the family into which he is born. But on the other hand, the family situation is influential, especially until the child becomes a man and is able to make a position for himself. See Annotation, 149 A. L. R. 260. Another subject on which evidence was lacking was what it cost Mrs. McStay to provide food and clothing, etc., for a child. The jury should not have been left to conjecture on these matters.

We have mentioned a number of factors that probably entered the jury’s deliberations, but we do not intimate that others should have been excluded. All probabilities, every reasonable expectation, bearing upon the pecuniary injury should be taken into account. Hackney v. Del. & Atl. Tel. Co., 69 N. J. L. 335 (E. & A. 1903); cf. Barnett v. Cohen, 2 K. B. (1921) 461.

Counsel, in their argument on the question whether or not the damages were excessive, devoted their attention almost exclusively to the size of verdicts rendered in other eases arising from the death of minors. We deprecate that approach, although precedent for it can be found in such cases as Ward v. Public Service Coordinated Transport, 8 N. J. Misc. 836 (Sup. Ct. 1930). It ought to be possible to support an award of damages on some analysis that has its basis in the evidence and in that common knowledge and experience which men in general have and to which the jurymen may properly resort. Wigmore on Evidence, § 2570. What has been called a “rational computation of probabilities.” Rowe v. N. Y., etc., Tel. Co., 66 N. J. L. 19 (Sup. Ct. 1901). And see Jackson v. Cons. Traction Co., 59 N. J. L. 25 (Sup. Ct. 1896). Let us take first the pecuniary injury arising from the death of the oldest son, Francis, at the age of 12 years. The cost of bringing him up would doubtless have been much greater than any small earnings, or the money value of the help he would have given around the home, fox-four years or so. The next two years his probable earnings— delivering newspapers after school hours, woi'king in summer — might fully offset the expense. It is reasoixable to suppose he would have left school and taken a full-time job at age 18, and applied all his pay to the common budget, for, say, seven years, or until he was 25 years old. In the course of those years, his pay would normally increase to perhaps $50 or $60 a week. Deduct his own personal expenses and the cost of his own upkeep and there would still remain a contribution to his mother and the younger children, aggregating several thousand dollars. We will assume that Francis would marry at 25 and for a number of years be unable to help his mother. But when his own family was fully established and his mother should reach old age and be in need of help, she could reasonably expect to receive it from her 'son. No one can read the future; the circumstances that bear on the problem before us are innumerable. But the simple analysis we have made of the situation seems entirely consistent with the evidence presented and with common experience. Eill in probable figures; strike a balance; take the present value as the amount of damages, and $6,000, which was the amount of the verdict, seems not too much. Since the second son was two years younger than his brother, the pecuniary injury from his death would be smaller than in the case of Francis but still $6,000, which again was the verdict, was not excessive.

The judgment will be affirmed with costs.


author: Wm. J. Brennan, Jr., J. A. D.

text:
    MAE FOX, PLAINTIFF-RESPONDENT, v. CITY OF PLAINFIELD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950
    Decided December 13, 1950.

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

      Mr. John W. O’Brien argued the cause for respondent (Messrs. O’Brien, Brett & O’Brien, attorneys).

      Mr. Salvador Diana argued the cause for appellant.
   The opinion of the court was delivered by

Wm. J. Brennan, Jr., J. A. D.

Sherley Pox, aged 47, a Plainfield fireman of 24 years service, died April 3, 1949, a few hours after suffering a cerebral hemorrhage while fighting a residential garage fire.

The Division of Workmen’s Compensation awarded compensation and the Union County Court affirmed. The municipality appeals from the consequent County Court judgment.

The sole question is whether petitioner sustained the burden of proof to show the probability that Pox’s death was the result of an accident which arose out of and in the course of his employment. Pox had suffered from high blood pressure, “hypertensive cardiovascular disease,” for a considerable time.

Pox drove his fire company’s apparatus at about 40 miles per hour to this fire in response to an alarm received at the firehouse. Upon arrival at the scene he manoeuvered the engine into position near a fire hydrant, where the hose was attached and from which point he moved the engine forward toward the driveway. Pox and another fireman then had “to pull off a tier of hose, drag it, put a nozzle on and bring it in” to a point 12 to 20 feet from the garage to play water on the fire. The effort needed to get the hose to the fire was, as testified by the fireman who helped Pox, “Well, you got to pull it in, you can’t walk to a fire that’s burning at the time. You have to hustle it in therethe operation “is fast.”

Leisurely service is not characteristic of the fireman once the alarm is given. Weisenbach v. New Milford, 134 N. J. L. 506 (Sup. Ct. 1946). Haste is essential in meeting the emergency. Fire Commissioners, etc., of Moorestown v. Morris, 12 N. J. Misc. 153 (Sup. Ct. 1934). Fire service, moreover, has its hazards to life and limb of the fireman. Ordinary human experience justifies the conclusion that despite Jong service a fireman does not fight any fire free of emotional, physical and nervous stress and strain which are the natural incidents of haste and danger in emergent circumstances.

The fire was a “hot” one. One witness standing almost 45 feet away testified he had to move back because of the intensity of the heat. When Fox’s company arrived the fire had made substantial headway. Gasoline and oil in an automobile in the garage created imminent danger of explosion and spread of the fire.

Fox was “very active at that fire. He took charge of the line and waited a few seconds, then the water came, it kinked it (the hose) quite a bit, and the other fellows came by with rubber coats and helped him on the job.”

Neither Fox nor his fireman partner had taken time to put on protective clothing but promptly when Fox put the engine into position they had pulled off the hose, attached the nozzle and started their effort to extinguish the fire. After some minutes a superior officer relieved Fox and ordered him back to the engine to don protective clothing. Fox walked a distance of 40 feet to the engine, and “Ho was taking his boots or shoes off, he had one shoe on and one shoe off, as he was taking it off he fell backwards.” It was at that instant he suffered the cerebral hemorrhage.

Dr. Olcott testified for petitioner. His opinion was the cerebral hemorrhage was precipitated by a rupture of the lenticular branch of the Sylvian artery which “can be made to burst by any adventitious rise in blood pressure due to emotional factors or anything of that kind,” that the rupture was causally connected with the “episode,” meaning “driving the truck to the fire, assisting in drawing the hose, putting the nozzle on, the exertion at the fire and emotional excitement that always goes with a fire, that added together, the customary episode of fire fighting with, perhaps, as you described, extra heat, a little more added excitement and so forth, as the result of the fact it was gasoline involved.”

Dr. Lyerly, testifying for the municipality, expressed the opinion the cerebral hemorrhage was “due purely to the hypertension.” This testimony was not deemed convincing by either the Deputy Director or the County Judge, and we see no reason to disagree with this finding. Dr. Lyerly conceded emotional excitement will cause rise in blood pressure and “In all fairness to all concerned * * * there is a certain amount of emotional tension in a fire, for any fireman.” He admitted in addition that Pox’s high blood pressure made him more .vulnerable to a stroke under the emotional strain generated by the circumstances surrounding this fire; These concessions in light of the circumstances proved justify doubt of the validity of the doctor’s conclusion that the cerebral hemorrhage was due to the natural progress of the disease from which Pox suffered.

There was evidence showing the probability the conditions surrounding this fire and Pox’s exertions connected with it generated excitement and nervous strain which increased Pox’s blood pressure sufficiently to cause the cerebral hemorrhage. This was sufficient proof to establish a compensable accident. Blair v. Village of Coleraine, 177 Minn. 376, 225 N. W. 284 (Sup. Ct. Minn. 1929); Krenz v. Krenz Oil Company, 186 Minn. 312, 243 N. W. 108 (Sup. Ct. Minn. 1932); Swann v. Montclair, 19 N. J. Misc. 255 (W. C. B. 1941); Niemi v. Thomas Iron Co., 20 N. J. Misc. 197 (W. C. B. 1942); and see VanNess v. Haledon, 136 N. J. L. 623 (E. & A. 1948); Schneider, “Workmen’s Compensation Text” (3d Ed. 1945), § 1328, pp. 543 et seq. And when two independent tribunals, as here, separately arrive at the same factual determination, we will not overthrow such finding when supported by sufficient evidence. Giresi v. E. I. duPont deNemours Co., Inc., 7 N. J. Super. 41 (App. Div. 1950); Coronato v. Public Service Coordinated Transport, 4 N. J. Super. 1 (App. Div. 1949).

The legal result is of course not affected by the fact that Eox was suffering from a pre-existing diseased condition of his blood vessels and arteries which predisposed him to cerebral hemorrhage, Furferi v. Pennsylvania Railroad Company, 117 N. J. L. 508 (E. & A. 1936), nor by the fact that the hemorrhage might have occurred at any time due to the natural progress of the pre-existing disease.

The municipality urges that the doctrine of “unusual strain or exertion” in heart disease cases is applicable and that the lack of proof of special effort as a precipitating cause of the hemorrhage precludes an award to the petitioner. The argument is not well founded. This doctrine has apparently not been extended beyond the heart cases. See Mills v. Monte Christi Corp., 10 N. J. Super. 162 (App. Div. 1950). It has certainly not been applied in cerebral hemorrhage cases; findings against liability in such cases have rested on a failure of proofs to establish the probability that the happenings contributed to the fatal cerebral hemorrhage. Carr v. Federal Shipbuilding & Dry Dock Co., 133 N. J. L. 564 (Sup. Ct. 1946); affirmed, 135 N. J. L. 148 (E. & A. 1946); Tyler v. Atlantic City Sewerage Co., 137 N. J. L. 16 (Sup. Ct. 1948); Forlano v. C. B. Weber & Co., 4 N. J. Super. 70 (App. Div. 1949).

The preponderant medical testimony in this case fully established Fox's exertions, with their concomitants of haste, danger, excitement, nervous strain, and elevation of his blood pressure, induced the rupture of the artery which eventuated in his death. It is not perceived that there is any fundamental difference in law or in principle between an injury eausativoly resulting from a blood vessel being cut or crushed and one broken by an artificial disturbance of that blood vessel induced by the specific combination of circumstances related to this fire which clearly constituted the incident an unlooked for mishap or untoward event, and an accident within the liberal intendment of the act. See J. Norman Geipe, Inc., v. Collett, 172 Md. 165, 190 A. 836 (1937). It is not necessary that an accidental injury to be compensable be the result of traumatic force. Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (E. & A. 1939).

Affirmed.


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

text:
    GEORGE WOOLF, PLAINTIFF-APPELLANT, v. HELEN W. WOOLF AND CARROLL WOOLF, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950
    Decided December 15, 1950.

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

      Mr. Perry E. Belfatto argued the cause for appellant.

      Mr. Charles E. Dittmar argued the cause for respondents.
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Carroll L. Woolf died on July 27, 1914, seized of a one-family residential property in Matawan, New Jersey. He left surviving two sons, George and Carroll, and his second wife, Helen Woolf. In the pretrial order it was stipulated that “the heirs George and Carroll Woolf have been in possession of the property since his death; that the heirs did not offer to assign dower and the widow did not ask that dower be assigned to her until June, 1947.” In the judgment entered in the Chancery Division of the Superior Court, Helen Woolf was allowed $3,360 as the rental value of the premises from the date of her husband’s death until the time of the “admeasurement” of her dower, in satisfaction of her right of quarantine, and, in addition, a gross sum in lieu of dower from the date of “admeasurement” of dower.

The sole question presented is whether the court erred in finding that the widow was entitled to the right of quarantine in the Matawan property.

At common law the widow had the right of quarantine which was expressly guaranteed in Magna Charta. Lord Coke said: “By the statute of Magna Charta, cap. 7, it is provided that she shall tarry in the chief house of -her husband but forty days after his death, within which time dower shall be assigned unto her; but of little effect was that act, for no penalty is thereby provided if it be not done: which 'term of forty days is in law called Quarantine." Coventry’s Co. Lill. 32 (1830). In our State, this right of the widow was greatly extended by section 2 of “An Act relative to dower,” passed January 31, 1799 (Pat., p. 343). However, our courts continue to refer to the extended right as the widow’s “quarantine.” Cf. Bahr v. Cooper, 141 N. J. Eq. 584, 587 (Ch. 1948).

The language of section 2 of the 1799 act, with only slight editorial change, has been carried down into our present statute, R. S. 3:37-4, which in pertinent part provides:

“Until dower * * * is assigned, the widow * * *. may remain in, hold and enjoy the mansion house of * * * her spouse and the messuage or plantation belonging thereto, without being liable to pay rent therefor. * * *”

In McLaughlin v. McLaughlin, 22 N. J. Eq. 505, 509 (E. & A. 1871), Chief Justice Beasley said: “The purpose of the act is obviously to provide a home for the widow until her dower be assigned, as well as to put a compulsion on the heir to make the assignment.” Similar statutes, extending the widow’s common law right of quarantine, have been given the same construction in other states. 2 Tiffany, Law of Real Property, § 535 (3rd ed. 1939); 126 A. L. R. 796, 812.

The appellant argues that the widow had no right of quarantine in the property, because it was not “the mansion house of her spouse” and because she neither had possession nor asserted dominion over it.

The Matawan property was purchased by Carroll L. Woolf in 1925 and he lived there with his first wife until her death in April, 1943. There was testimony that he continued to live there until the day before his marriage to Helen on October 17, 1943. Thereafter, this fully furnished house remained unoccupied until Ms death in July, 1944, except on the occasions when he stayed overnight therein on his periodic trips to Matawan. He made no attempt to rent or dispose of the property. After his marriage to Helen, he voted in Matawan at the general election in November, 1943. He received all his mail in Matawan and his income tax return “emanated from there.”

Helen lived in an apartment in Long Island City, New York, leased by her since 1934. Upon her marriage to Carroll on October 3 7, 1943, Carroll moved into her apartment and continued to live there until Ms death. There was testimony that Carroll and she had planned to move into the Matawan house, but they stayed in her New York apartment after the marriage; first, because the bad winter made commuting from Matawan to Linden, his place of employment, more difficult for 1dm thau commuting from her apartment, and, later, because he became quite ill in February, 1944, and found it more convenient, while the need continued, for visiting his doctor who was in New York.

There was testimony that lie hoped to keep the house until his boys, who were in the service, came home, and then sell it and give half the selling price to the boys. There was also testimony that shortly before his death he was approached by Ills employer to accept work in Detroit, but did nothing about it because of Ms ill health. With knowledge that the widow survived, the plaintiff George Woolf took possession immediately after his father’s death. At no time did Helen ever occupy the premises.

That the Matawan property was his “mansion house” from 1925 until the death of his first wife in April, 1943, is beyond question. We agree with the court below that it was still his “mansion house” at the time of his death. He maintained it fully furnished and made no attempt to rent or dispose of it. It did not cease to be his “mansion house” because he chose, for his own convenience, to reside in Helen’s apartment in New York for the nine months before his death. It continued to be his “mansion house” despite the expression of an intention to sell it at.some future time and the consideration he gave to moving to Detroit.

If the widow had remained in the mansion house after her husband’s death, she would have had her right of quarantine. But personal occupation by the widow of the mansion house is not an essential; she may rent the premises and receive the rents without losing her right of quarantine. Craige v. Morris, 25 N. J. Eq. 467 (Ch. 1875); Davis v. Lowden, 56 N. J. Eq. 126 (Ch. 1897); Bahr v. Cooper above. In this case the widow neither remained in possession nor exercised dominion by renting the premises and receiving the rents. However, a widow may be entitled to her right of quarantine even though she neither remains in possession nor exercises dominion over the mansion house. At common law the widow had her writ de guarantina habenda against the heir or other tenant of the land who put her out. Davis v. Lowden, above; cf. 126 A. L. R. 796, 799. These heirs took possession of the property, but failed to assign dower to the widow. Were we to hold that this widow was not entitled to a right of quarantine, we would defeat the purpose of our statute. The continuation of the widow’s right of quarantine is the penalty the statute imposes on the heirs who do not assign her dower. It was within their power to stop the running of the widow’s right by assigning the dower, and they must now pay the penalty which the law imposes for their failure to do so.

The judgment is affirmed.


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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLARENCE ILLARIO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1950
    Decided December 6, 1950.
    Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Myron L. Levy argued the cause for the appellant.

      Mr. Charles A. Reid, Jr., argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from an order entered by the Magistrate of the Municipal Court of the Township of Bridgewater adjudging the defendant guilty of contempt of court.

On April 9, 1950, words passed between the defendant Clarence Illario and his neighbors, the Blackfords. A complaint was filed by the Blackfords charging the defendant with using vile, profane and insulting language in violation of an ordinance of the Township of Bridgewater which declared such action to be disorderly conduct. At the hearing the Blackfords testified that the defendant had used the improper language and they were supported by Kathryn Brennan who lived next door. On the other hand, the defendant testified that he had not used any vile, profane and insulting language and he was supported by his wife Helen. At the close of the testimony on defendant’s behalf the magistrate, on his own motion, called for testimony by Mrs. Brennan, clerk of his court and mother of Kathryn Brennan; she corroborated her daughter. The magistrate found the defendant guilty of disorderly conduct and assessed a fine and costs which were paid. Thereafter, the magistrate issued an order directing the defendant to show cause why he should not be adjudged guilty of contempt of court for having falsely testified when, in the course of his defense on the disorderly conduct charge, he denied he had used the improper language. Hearing was held, the Blackfords and Brennans again testified that the defendant had used the improper language, the defendant and his wife Helen again testified to the contrary, and the magistrate again disbelieved the defendant’s denial. This time he adjudged the defendant guilty of contempt and the present appeal-is from this action.

The problem as to when the giving of false testimony in a judicial proceeding constitutes contempt has given courts much concern. As Justice Black said in Matter of Michael, 326 U. S. 224, 227, 90 L. Ed. 30, 33 (1945), it is clear that “all perjured relevant testimony'- is at war with justice, since it may produce a judgment not resting on truth” and as a crime it is indictable and triable by jury with constitutional and traditional safeguards. However, when dealt with as contempt it becomes subject to the awesome power of the court to deal with it in its discretion, summarily and without ñxed limit of punishment — a power described by Justice Depue as, at best, “an arbitrary power, and liable to great abuses.” Rhinehart v. Lance, 43 N. J. L. 311, 321 (Sup. Ct. 1881).

In the light of the foregoing the Supremo Judicial Court of Maine in Ex parte Holbrook, 133 Me. 276, 177 A. 418 (1935), denied to itself power to deal with the giving o£ perjured testimony as contempt, declaring that while perjury is an abhorrent crime it would be “unsafe and unwarranted” to deal with it in any manner other than as a crime triable by jury. See State v. Lazarus, 37 La. Ann. 314 (1885). Similarly, the United States Supreme Court has declined to sanction contempt proceedings based solely on the giving of false testimony. See Ex Parte Hudgings, 249 U. S. 378, 63 L. Ed. 656 (1919); Clark v. United States, 289 U. S. 1, 11, 77 L. Ed. 993, 998 (1933); Matter of Michael, supra. In the Clark case Justice Cardozo expressed the Supreme Court’s doctrine in the following language:

‘"Perjury by a witness has been thought to be not enough where tlxe obstruction to judicial power is only that inherent in the wrong of testifying falsely. * * * Por offenses of that order the remedy by indictment is appropriate and adequate. On the other hand, obstruction to judicial power will not lose the quality of contempt though one of its aggravations be the commission of perjury.”

.Recent applications of this doctrine may be found in United States v. Goldstein, 158 F. 2d 916 (7th Cir. 1947), and Howard v. United States, 182 F. 2d 908 (8th Cir. 1950).

In several states, courts have taken the position that although the power to treat the giving of false testimony as contempt exists it will not be exercised unless the court lias “judicial notice of the falsity,” e. g., where it is admitted by the contemnor or otherwise appears incontrovertibly. See People v. Harrison, 403 Ill. 320, 86 N. E. 2d 208 (1949); Hegelaw v. State, 24 Ohio App. 103, 155 N. E. 620 (1927); McInnis v. State, 32 So. 2d 444 (Miss. Sup. Ct. Div. A 1947). In the Hegelaw case the court said:

“In nearly every ease issues of fact are made up by the pleadings, each side seeking by testimony to maintain its side. The court or jury, in rendering judgment or verdict, bases its finding upon the testimony which seems the more probable. Merely because the court chose to believe the one side in preference to the other as to an issue of fact, upon grounds of greater probability, would not justify the court in holding the witness who supported the losing side guilty of contempt of court. To justify such action by the court the falsity of the witness’ testimony, given in open court, must be a matter of judicial knowledge, not merely of opinion. In other words, it must be a patent falsehood upon which there can be no difference of opinion. If the alleged false statement is merely a matter of the court’s opinion, as distinguished from its knowledge, contempt proceedings will not lie.”

In this connection the notion which once prevailed in King’s Bench that the denial under oath by the alleged contemnor, although indictable if false, constituted a bar to further prosecution of the contempt is worthy of mention. See Curtis, “The Story of a Notion in the Law of Criminal Contempt, 41 Harv. L. Rev. 51 (1927). Although the notion had ceased to be a defense in England by 1796 and had been discarded by the United States Supreme Court in United States v. Shipp, 203 U. S. 563, 51 L. Ed. 319 (1906), it was apparently accepted by our former Supreme Court in In re Gonzales, 88 N. J. L. 536, 544 (Sup. Ct. 1910). However, the notion never prevailed in our Court of Chancery and we may safely state that it does not, in its comprehensive form, represent our present law. Cf. Attorney General v. Verdon, 90 N. J. L. 494 (E. & A. 1917); In re Merrill, 88 N. J. Eq. 261, 282 (Prerog. 1917); In re Baer, 13 N. J. Misc. 148, 151 (Sup. Ct. 1935).

In New Jersey the giving of false testimony has been generally considered to constitute a contempt of court punishable as such. Thus, in In re Caruba, 139 N. J. Eq. 404 (Ch. 1947); affirmed, 140 N. J. Eq. 563 (E. & A. 1947); cert. denied, 335 U. S. 846, 93 L. Ed. 396 (1948), the Court of Chancery adjudged a witness who had testified falsely guilty of contempt and cited prior New Jersey decisions to support tlie view that perjury or false swearing is a “contempt of court and may bo punished, notwithstanding an indictment for perjury as a crime will also lie.” In the Caruba case the contemnor had admitted the falsity of his testimony and in all of the cited case's, with the possible exception of Edwards v. Edwards, 87 N. J. Eq. 546 (Ch. 1917), the falsity of the testimony likewise appeared incontrovertibly. In the Ed,wards case AAce-Chancellor Lane found that the husband petitioner in a divorce proceeding testified falsely and engaged in other misconduct, adjudged him guilty of contempt, and said:

“The power to punish for contempt is an arbitrary power, and should be used only when absolutely necessary in the interest of justice, and then with great care and discretion. Courts will not ordinarily, when the facts are in dispute, punish perjury as a contempt, not because of lack of power, but because sound public policy requires that the offender should be left to the criminal law. But where the facts are admitted or demonstrated, it seems to me that the court would be shirking a clear duty if it did not act. And circumstances may arise which would make it the duty of the court to act even if it was obliged to weigh evidence. Perjury committed by a petitioner which has induced the court to grant a decree of divorce presents one of this class of eases.”

See Zimmerman v. Zimmerman, 11 N. J. Super. _ (App. Div. 1950); Swanson v. Swanson, 10 N. J. Super. 513 (App. Div. 1950).

Unlike the petitioner in the Edwards case who voluntarily sought affirmative relief from the court and then imposed upon it, the ease before ns deals with a defendant in a proceeding essentially criminal in nature. State v. Yaccarino, 3 N. J. 291, 295 (1949). As such defendant he testified and conducted himself in respectful fashion and his denial of the offense could be true although the court as trier of the facts disbelieved him and his wife and determined that the witnesses in support of the charge against him were telling the truth. Finkel v. McCook, 247 App. Div. 57, 286 N. Y. Supp. 755, 761 (1936); affirmed, 271 N. Y. 636, 3 N. E. 2d 460 (1936). In none of the cases which have been brought to our attention has conviction for an alleged contempt by a defendant under comparable circumstances been sustained. Cf. People v. Tomlinson, 296 Ill. App. 609, 16 N. E. 2d 940 (1938), where the Appellate Court of Illinois reversed a contempt conviction in the municipal court of a defendant charged with a motor vehicle violation whose testimony was found by the magistrate to be false on the basis of testimony to the contrary.

We assume that municipal courts established pursuant to P. L. 1948, c. 264, are vested with adequate power to punish contempt committed in open court. See Rule 8:9. But cf. In re Kerrigan, 33 N. J. L. 344 (Sup. Ct. 1869); Rhinehart v. Lance, supra. Nevertheless, under P. L. 1948, c. 333, a person convicted of such contempt in a municipal court is entitled to a trial de novo in the Appellate Division which is expressly empowered to “give such judgment as it shall deem to be lawful and just under all the circumstances of the case.” Zimmerman v. Zimmerman, supra. Our de novo examination of the record in the instant matter has led us to the conclusion that judgment of acquittal of contempt would be the lawful and just one under all the circumstances of the case. When the defendant was charged with disorderly conduct he defended in orderly fashion as was his natural and lawful right. He was duly tried, convicted of the ordinance violation, and sentenced, when the magistrate disbelieved him and his witness on the basis of the testimony to the contrary. Under similar circumstances our courts have ordinarily permitted the proceeding to terminate without the suggestion of contempt. We have not been advised of any reasons for departure in the instant matter and no unusual circumstance has been presented other than that the court clerk had been called by the magistrate as a witness to contradict the defendant's denial. It seems to us, however, that this circumstance might well have been considered as special cause for permitting the defendant's perjury, if any, to be dealt with in regular course by other authorities rather than by contempt proceedings before the magistrate. It must be borne in mind that, in the effectual maintenance of a strong and independent court system, the appearance as well as the actuality of fair and impartial judicial administration must at all times be sought. While there undoubtedly was sufficient proof, as a matter of weight of evidence, to justify the magistrate in his belief that the defendant had committed perjury, the record before us nonetheless indicates that the defendant has, with his wife’s corroboration, consistently and steadfastly maintained his denial of the ordinance violation, and perhaps it was not untruthful. We cannot bring ourselves to the belief that upon such directly controverted showing the contempt conviction of this defendant, unaccompanied by the constitutional and traditional safeguards which would surround his trial by jury for the crime of perjury or false swearing, would be lawful and just or that it would not, in its implications, serve to retard rather than advance the proper administration of justice according to law. Cf. Pound, “Justice According to Law,” 13 Col. L. Rev. 696, 709 (1913).

Judgment of acquittal of contempt will be entered, without costs.


author: Jayne, J. A. D.

text:
    ISLWYN DAVIES, PLAINTIFF-RESPONDENT, v. PAULINE E. BOTTICHER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Api>ellate Division
    Argued November 20, 1950
    Decided December 12, 1950.

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

      Mr. J. Glenn Anderson argued the cause for appellant.

      Mr. John A. Laird argued the cause for respondent (Mr. David Roskein, attorney).
   The opinion of the court was delivered by

Jayne, J. A. D.

The plaintiff prosecuted an action for the recovery of treble damages, alleging in the complaint, as amended, rental overcharges by the defendant in violation of the Emergency Price Control Act of 1942, as amended, and the Housing and Kent Act of 1947. The action was tried by consent before a judge of the Law Division of the Superior Court without a jury, and a judgment in favor of the plaintiff eventuated in the sum of $788.25 damages, with costs and the allowance to the plaintiff of a counsel fee of $100. The appeal (Ho. A-345-49) challenges the propriety of that judgment.

In scrutinizing the record our attention initially falls upon the pleadings and the pretrial order in quest of knowledge of the issues which were presented to the trial judge for determination.

The amended answer of the defendant contained a general denial of the allegations of the complaint, and three separate defenses in which it was averred that the plaintiff fraudulently misrepresented the number of persons who would occupy the demised premises and that the plaintiff conspired with another tenant of the building to intimidate and extort money from the defendant. Her answer was accompanied by a counterclaim for damages alleged to have been sustained by her in consequence of the fraud and conspiracy averred in the answer.

The pretrial conference fulfilled its function in decreasing the issues actually in controversy. The following quotation taken from the pretrial order is significant:

“Plaintiff claims that the premises in question were the subject of a registration certificate filed by the defendant fixing a rental of $30 monthly including all services.
“Plaintiff has moved to amend the ad damnum clause in each count o£ .the complaint so as to seek recovery for treble damages instead of the $50 civil damage allowance provided by the act. This amendment is allowed.-
“Defendant admits that a registration certificate fixing the maximum ceiling of $30 for the apartment in question was filed by her with the Federal authorities. Defendant also admits that she' received the rents set out in each count of the complaint. Defendant further concedes that the ceiling first established of $30 was never changed officially. Defendant contends that the plaintiff occupied additional space in the apartment not covered by the original registration with the OPA. This additional space was the use in common with other persons in the building of a lavatory and wash room. The defendant contends that the use in common with others was for a short period and thereafter the plaintiff had the full use.
“Defendant further claims that she was forced and intimidated to pay over sums of money the plaintiff representing these overcharge claims, that she did so, and by this means all of the plaintiff’s claims have been satisfied.
“Defendant has filed a counterclaim against this plaintiff which on account of failure of specific proof of damage the defendant hereby abandons.
“Defendant by way of third party complaint has brought James Flaherty into the case as a defendant.”

Thus the counterclaim was voluntarily abandoned, and it was evident at the trial that the registration in the-office of the Price Administration under section D entitled “Equipment and services” included “Bathroom & toilet shared by other tenants.” The assertion in the pretrial order that the defendant had satisfied the plaintiff’s claim collapsed. She had through her attorney offered the plaintiff a refund of $100 which he had declined to accept.

The attorney doubtless foresaw the eventual plight of his client for, after making what is characterized in the record as an “opening statement to the Court on behalf of the defendant Botticher,” the court stated, “Note on the record that there is no objection to setting up the defense that she did not act willfully or fail to take practical precautions.” Such appears to be the only defense actually interposed on behalf of the defendant at the trial.

It is assumed that except as so augmented by the court at the trial, full and proper effect was accorded the pretrial order. Rule 3:16. Jenkins v. Devine Foods, Inc., 3 N. J. 450 (1950); Mead v. Wiley Methodist Episcopal Church, 4 N. J. 200 (1950); Anderson v. Modica, 4 N. J. 383 (1950); Art Wire & Stamping Co. v. Johnson, 7 N. J. Super. 173 (App. Div. 1950); Binder v. Green, 8 N. J. Super. 88 (App. Div. 1950); cf. Roberts Electric, Inc., v. Foundations, &c., Inc., 8 N. J. Super. 168 (App. Div. 1950).

Concerning then the issue of willfulness, we note that the defendant after acknowledging that she had no written official authority to exact the rental, testified as follows:

“Q. You took it upon yourself to charge $15 a week?
“A. Yes, sir.
“Q. And an additional $1.25 for gas and electricity?
“A. Yes, sir.
“Q. Even though in the services you said that gas and electricity are furnished and that is indicated on the original certificate and the one that was to be corrected after suit was started?
“A. Yes.
“Q. The service required included gas and electricity?
“A. Yes.
“Q. And you charged for those?
“A. That’s right.”

This disposes of the appeal with respect to those issues which were settled by the pretrial order. “The parties are bound by the record and by the reasons and ground upon which they relied and advanced to the court below.” Schwartz v. Rothman, 1 N. J. 206, 210 (1948).

The judgment under review will be affirmed.

Directing our attention next to the subsequent appeal (No. A-491-49) relating to the failure of the trial judge to determine the application for relief from the final judgment, we note the concession of the appellant that in consequence of the appeal from the final judgment, this appeal has become academic. Hence, it will be dismissed.