author: Hartshorn®, C. P. J.

text:
    Essex County Court of Common Pleas.
    ERNESTINE GLIEWE, PETITIONER-APPELLANT, v. MULBERRY METAL STAMPING WORKS, INC., A CORPORATION, RESPONDENT-APPELLEE.
    Decided July 6, 1940.
    For the petitioner-appellant, Edward R. McGlynn (Joseph Weintraub).

    For the respondent-appellee, George E. Meredith (Cox & Walburg, by Arthur F. Mead).

   Hartshorn®, C. P. J.

The petitioner here is the mother of one Walter Gliewe, who was burned to death by an accident, arising out of and in the course of his employment. Respondent concedes this, and that the mother was partially dependent upon the earnings of her son, but denies she was totally dependent on him. This, the question of total or partial dependency on the son, is the issue.

The answer to this question, in turn, depends upon whether or not the mother was also “dependent,” within the meaning of the act, upon the father and another son, Guenther. The deceased son contributed $lo per week to the household, his brother but $8 per week. Since the total family fund was $23. per week for three people (the father not being included for reasons hereafter stated), it would appear that the maintenance cost of each of the three, the sons included, was approximately $8 per week, Guenther’s contribution being intended merely to cover the cost of his maintenance.

Dependency depends upon actual support. Hammill v. Pennsylvania Railroad, 87 N. J. L. 388; 94 Atl. Rep. 313 ; 88 N. J. L. 717; 96 Atl. Rep. 292; Conners v. Public Service Electric Co., 89 N. J. L. 99. Hence, the son who took out, for his maintenance, all that he put in, obviously did not support his mother. She was, therefore, not a dependent upon him.

As to the father, economic circumstances had forced him to seek his livelihood in Pennsylvania, where he had part-time employment only, as a substitute compositor with a small foreign-language newspaper. Due to the fact that he was generally away from home, his situation must be separately considered. He returned from Pennsylvania to live home about one week out of every month, thus costing the family about $8 a month. He contributed widely varying sums, from $3 or $4 a month to $15 a month sometimes, as the commissioner found. His earnings were so varied in amount that often the family not only had to take care of him when he was home, but at times had to pay for his laundry and give him railroad fare. Clearly, his support of petitioner was insubstantial, if indeed not the opposite.

It thus appears that, in fact, decedent was petitioner’s sole substantial support. The bureau, while agreeing as to this fact, concludes that petitioner was not a total dependent of decedent, simply because the statute (R. S. 1937, 34 :15-13; N. J. S. A. 34:15-13), in case the husband dies, “conclusively presumes” dependency of the widow and children on him, if they “were actually a part of the decedent’s household at the time of his death.”

But this conclusive presumption is a legal fiction. It was created by the legislature solely for the benefit of the wife and children, to insure their protection on the death of their natural protector. It is not intended to be invoked except upon the death of the family’s natural protector. It entirely contravenes the legislative intent, to turn this shield of protection and support of the family into a sword to cut down its protection and support.

That legal fictions must always be confined to their purpose and intent, is not only common sense, but common law. 25 C. J. 1086. Indeed, if we apply the bureau’s argument consistently, we reach a reductio ad absurdum. Tor if the family is to be conclusively presumed to be dependent upon the husband and father, whether he be alive or dead, then, because of that fiction, the family could never as a fact, under any circumstances, be totally dependent upon any one else, and this even if the facts were indisputably to the contrary.

Since it is well settled that, with this one fictional exception, dependency is always a question of fact, it follows that this fiction cannot be resorted to, contrary to its intent, under circumstances to which it does not apply. Hence, the petitioner here is a total dependent of the son who made the only net contribution to the family exchequer. (Note the similar case of James Pepper & Co. v. Travis (Ky.), 86 S. W. Rep. (2d) 683.)

A determination may be entered accordingly.


source: Caselaw Access Project

author: Si-ieehan, D. C. J.

license: Public Domain

text:
    Camden City District Court.
    WILLIAM F. LEIBFRIED, PLAINTIFF, v. THOMAS S. RHODES, DEFENDANT.
    Decided March 25, 1940.
    For the plaintiff, Horace G. Brown.

    For the defendant, Samuel P. Orlando.

   Si-ieehan, D. C. J.

This matter comes before the court on a motion to strike the summons and state of demand on the ground that this court is without jurisdiction to entertain the cause of action therein set forth and concomitantly that there is no provision in the District Court act by which service under the agreed state of facts could be legally made. It was stipulated upon the oral argument and confirmed in the submitted memoranda that the plaintiff, William F. Leibfried, was at the time of the accident and at the time of the institution of suit a resident of Bywood, in the Commonwealth of Pennsylvania, and that the defendant, Thomas S. Rhodes, was at the time of the accident, and at the time service was effected through the Commissioner of Motor Vehicles of the State of Hew Jersey, a resident of the State of Hew York, and that the accident happened in Essex county, in the State of Hew Jersey.

To meet the issue thus presented, counsel for the plaintiff and defendant rely respectively upon the provisions of sections 39:7-2 and 2 .-32-34.1 of the Revised Statutes. The former is a section of the Motor Vehicle act and is a legislative enactment applying generally to causes of action started under its authority by service upon non-residents, in any court of this state. The latter is by amendment of the laws of 1936, chapter 170, a specific and integral part of the law establishing and governing the authority and powers of District Courts in this state.

It will be noted that the Motor Vehicle act permits its privilege of service upon non-resident motor vehicle operators and owners to be exercised by non-resident plaintiffs who seek to sue in this state. This enlargement arises as a result of the interpretation given to the act by the Supreme Court in Gender v. Rayburn, 15 N. J. Mis. R. 704; 194 Atl. Rep. 441; affirmed, 119 N. J. L. 243; 195 Atl. Rep. 513.

If the wording of the District Court act pertaining to service of non-residents were identical in language or even the same in substance, this decision would bo dispositive of the issue here presented, but it differs materially in that the limitation originally present in the Motor Vehicle act and now deleted (chapter 143, laws of 1936; R. S. 39:7-2) still prevails in the following very certain, unambiguous phrasing:

“Any chauffeur * * * shall * * * make and constitute the commissioner of motor vehicles of the state of New Jersey, his or their agent for the acceptance of process in any civil action or proceeding by any resident of this state * *

Therefore, the determining decision is Charles v. Fischer Baking Co., 14 N. J. Mis. R. 18; 182 Atl. Rep. 30; affirmed, 117 N. J. L. 115; 187 Atl. Rep. 175, in which effect is given to the above italicized words as they then appeared in the Motor Vehicle act, by denying the privilege of substituted service to non-resident motor vehicle drivers and owners.

The interpretive problem thus settled there remains only for determination whether or not this court is controlled by the Motor Vehicle act or the District Court act. Obviously it is the latter wdiich must control and until such time as the legislature operates upon the District Court act by a similar deletion, the benefits of service under the provisions of R. S. 2 :32-34.1 and 34.2, subsections a to f (N. J. S. A. 2 :32-34.1 and 2, subsections a to f), are limited to residents of the State of New Jersey.

The motion will be allowed and the summons and state of demand will be dismissed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BERTHA MICIELI, WIDOW, JOSEPH MICIELI, DECEASED, PETITIONER, v. ERIE RAILROAD CO., RESPONDENT.
    Decided June 29, 1940.
    For the petitioner, Nathan Rabinowitz and Koch & Simon.

    For the respondent, Hobart, Minará & Cooper.

   The above matter having been submitted to me on a stipulation of facts and briefs, I hereby find and determine as follows:

On January 6th, 1938, and for some time prior thereto, Joseph Micieli was employed by the respondent at its terminal, Jersejr City, New Jersey.

Decedent was employed as baggage porter at said terminal.

His hours of duty were from ten p. m. to seven A. m.

His rate of pay was fifty cents per hour, eight hours per day, and he worked six days per week, making his weekly wage $24.

As baggage porter, decedent’s duties were to handle United States mail that came from New York, take it from the baggage room to outgoing trains at said terminal, load it on the trains. The mail in question was contained in sacks and destined for points within and without the State of New Jersey. Decedent also had to handle bundles of newspapers moving en route from New York to points within and without the State of New Jersey. Upon receipt of these papers from New York, the decedent would take them and load them on the various trains. The trains in question were all destined for points out of the state, and the papers, as previously stated, were destined to points within and without the State of New Jersey. Decedent also had to meet incoming trains, take the mail and baggage therefrom, bring it to the baggage room, and there sort it out and route it to its various destinations. Mail and baggage coming from points within and without the State of New Jersey and being destined to points within and without the state.

Decedent did the foregoing work at said terminal on January 6th, 1938, and every night or day prior thereto on which he worked. He had been doing that work for two years.

On January 6th, 1938, he completed his work at seven o’clock A. m. At seven-thirty-three A. M. on said day, decedent attempted to alight from a train moving into Paterson station of the Erie Railroad Company, it being estimated that at said time the train was moving about fifteen miles per hour. Decedent was seen to jump off train, run along platform while holding on to grab handle, lose his footing and fall and roll under the train. Injuries fatal.

Decedent had in his possession a pass, the reading thereon being as follows:

(Front)
Erie Railroad Company
New York, Susquehanna and Western Railroad Co.
The New Jersey & New York Railroad Co., Eastern District. Not good on Trains 1 and 2 except between Hornell and Buffalo, N. Y.
1937-1938 64846-D
Pass Mr. Joseph Micielli
Account Extra Baggage Porter (ALK)
Between Stns. Jersey City, N. J., and Paterson, N. J. Until December 31, 1938.
Valid when countersigned by
A. E. Hoffman.
Countersigned
Unless otherwise ordered and subject to conditions on back.
A. E. Hoeeman. W. M. White
General Manager.
(Reverse Side)

Conditions

A person accepting and using this free pass thereby assumes all risk of accidents, death, personal injury and loss of and damages to property whether caused by negligence of any railroad company named on the other side or negligence of any officer, agent or employe thereof, or otherwise.

As a condition precedent to the issuing and use of this pass, each recipient represents that he or she is not prohibited by law from receiving such free transportation, and agrees that this pass will not be used in violation of any law and agrees that this pass is given gratuitously and furnishes no part of consideration for services, and that none of said railroad companies shall be considered as a common carrier as to the transportation furnished thereon.

This pass is not transferable, and if presented by any other than an individual named thereon the conductor will take up pass and collect fare. This free pass is accepted and used upon the above conditions.

(Signed) Joseph Micielli

This pass will not be honored unless signed in ink or indelible pencil by the person or persons to whom issued.

Decedent’s work was confined entirely to Jersey City, New Jersey; his wages were fixed by hours; and his salary for the work done was the same as that of a person living in Port Jervis, New York, or in Jersey City, New Jersey.

Decedent’s sole dependent was his wife, the petitioner, Bertha Micielli, to whom he had been married about three years, and with whom he was living at 2 North Fourth Street, in Paterson, New Jersey, at the time of the fatal accident.

The conditions of the pass provided that the railroad company shall not be considered as a common carrier as to the transportation furnished thereon and that recipient thereof assumes all risks of accidents whether caused by negligence or otherwise. By reason of these express terms of the pass, the employe is deprived of the benefits of the act commonly known as the Federal Employers Liability act (U. S. Code tit. 45, § 51), the same being limited in its operation to “common carrier by railroad” and actions thereunder being limited to claims arising out of negligence.

In furnishing the pass to deceased respondent was providing him with transportation from the place of his residence to the place of work, using the facilities furnished by the company, which arrangement was useful to the company, and while it was a matter of convenience to deceased to use the pass, it was also beneficial to respondent in the sense that it would facilitate the transportation of deceased to and from his work.

The stipulation of facts discloses that deceased, while actually on the premises of the employer, was engaged in work of both interstate and intrastate character, but the interstate relation ceased when he left the premises and was en route to his home making use of the pass, but the employment was not yet at an end. At the time of his death, he was acting under the terms of his general employment, exercising a privilege incidental to that employment.

The general employment continues while a man is going to and from his employment where the moans of transportation are customarily furnished by the employer or where the employer has customarily furnished the employe with a pass to be used in going to and from his work and the practice is beneficial to both the employer and the employe. Lehigh Navigating Coal Co. v. McGonnell, 120 N. J. L. 428; 199 Atl. Rep. 906; affirmed, 121 N. J. L. 583; 3 Atl. Rep. (2d) 581; Rubeo v. Arthur McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662.

I find, therefore, that deceased, at the time of the accident, was not engaged in interstate commerce, that the relationship of employer and employe was in existence at that time, and that the accident causing his death arose out of and in the course of his employment.

# # # # ❖ # >!«

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

John J. Stahl,

Deputy Commissioner.


author: Weber, C. P. J.

text:
    Bergen County Court of Common Pleas.
    THE STATE OF NEW JERSEY (BOROUGH OF LEONIA), COMPLAINANT-APPELLEE, v. CLIFFORD J. HEATH, DEFENDANT-APPELLANT.
    Decided July 12, 1940.
    For the complainant-appellee, DeBaun & Westerveli.

    For the defendant-appellant, Edmond, J. libertino.

   Weber, C. P. J.

The defendant-appellant was charged by the building inspector of the borough of Leonia with violation of the following provisions of the building code of that borough, to wit: Chapter 13, section 13.2, paragraph 1; chapter 14, section 14.2; chapter 4, section 4.5, paragraph 4.55; and chapter 1, section 1.3, paragraph 1.39 of an ordinance entitled “The Building Code of the Borough of Leonia,” adopted November 25th, 1929.

A trial was had and the defendant-appellant was convicted of violating the following sections of the Zoning Ordinance: chapter 13, section 13.2, paragraph 1; chapter 14, section 14.2; chapter 4, section 4.5, paragraph 4.55, and was acquitted on the charge of violating chapter 1, section 1.3, paragraph 1.39. Upon conviction, defendant-appellant was fined a total of one hundred ($100) dollars, which fine, according to the record submitted, was paid without protest.

The defendant-appellant was found “guilty” on August 22d, 1939; the fine was paid on August 23d, 1939; the recorder was served with a notice of review on August 31st, 1939; and, the order for review was entered on September 1st, 1939. By order, entered May 2d, 1940, pursuant to stipulation of counsel, it was agreed that the matter be determined by me upon briefs, which have been submitted.

The defendant-appellant, in his brief, argues the following questions:

1. That the complaint, charging the defendant-appellant with violation of chapter 13, section 13.2, paragraph 1, is defective in that the complaint fails to set forth that the header and tail beams were more than four feet in length.

2. That the record of conviction is defective as to the violation of that section referred to under question 1, because there is no testimony that the said header and tail beams were more than four feet in length.

3. That the conviction is illegal, because the builder was a corporation defendant.

4. That the building code of the borough of Leonia declares, by its wording, to be remedial and to be liberally construed and that in the imposition of the fine, the spirit of the building code was ignored.

5. That the conviction of the violation charging defendant with failure to erect a fire door should be set aside, because the building was still in the .process of construction and unfinished.

The complainant-appellee, in its brief, sets forth the following reasons for dismissal of the appeal:

1. That the petition for review is not made by a party to the suit.

2. That the appeal should be dismissed, because the fine was paid without protest and voluntarily.

3. That the appellant has shown no ground for reversal.

I shall first consider the reasons for dismissal advanced by the complainant-appellee, as such reasons, in my opinion, dispose of the matter.

The petition for review in this ease was made by Edmond J. Ubertino, Esqnire, attorney for the defendant-appellant, and was not made “by a person who has been convicted,” as provided for by the provisions of R. S. 2:215-7 (N. J. S. A. 2:215-7). This was fatal, because, the petition was made by a stranger and not by a party. See City of Passaic v. Gross, 99 N. J. L. 409; 124 Atl. Rep. 370; Collins v. Kiederling, 87 N. J. Eq. 12; 97 Atl. Rep. 948; New Jersey Photo Engraving Co. v. Carl Schnoert & Sons, 95 N. J. Eq. 127; 122 Atl. Rep. 307.

The record submitted in this case shows that the fine imposed was paid without protest, which presents a situation, wherein the defendant-appellant is seeking to have the court act upon a moot question. Payment, in this instance, was unquestionably voluntary and, that being the case, the sentence was paid and satisfied and the defendant could gain nothing but the moral victory of a vindication. Westfield v. Stein, 113 N. J. L. 1; 172 Atl. Rep. 522; D’Aloia v. Summit, 89 N. J. L. 711; 99 Atl. Rep. 189. Because of the foregoing, the appeal herein should be dismissed.

In view of the points raised by defendant-appellant in his brief, I think it in order that the questions raised in that brief be commented upon, briefly.

The complaint, charging the defendant-appellant with the violation of the portion of the ordinance providing that trimmer, header or tail beams, unless supported on a wall or girder, shall be hung in approved metal hangers, is defective, because there is no allegation in the complaint that the defendant-appellant did cause trimmer, header or tail beams, over four feet in length, not supported on a wall or girder, to be erected without being hung in approved metal hangers. It is elementary, that all necessary elements to constitute any defense, must be set forth in the complaint. See Haviland v. Egan, 11 N. J. Mis. R. 799; 168 Atl. Rep. 171. However, as the petition for review does not set forth such defect, as a point to be relied on by defendant-appellant, it is to be considered that the defendant-appellant waived that defect.

This proceeding, being in the nature of a review, and, being further submitted to me on the record and upon briefs by attorneys for the respective parties, it is necessary for me to decide the matter from the record as submitted.

The record of conviction, as submitted, shows not only that proof was offered by the borough, substantiating the complaints upon which the defendant-appellant was found guilty, but shows further that the defendant-appellant, when testifying in his own behalf, admitted the violations which, therefore, disposes of points 2, 3 and 5, as set up in defendant-appellant’s brief. There is no testimony, whatsoever, showing that the complaints were prematurely made and no testimony showing that the defendant-appellant was not individually liable, under the provisions of the zoning ordinance.

Upon a review, it is not within the province of this court to weigh the evidence. See Levine v. State, 110 N. J. L. 467; 166 Atl. Rep. 300; Dziathiewicz v. Maplewood, 115 N. J. L. 39; 178 Atl. Rep. 205.

The convictions are, therefore, affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARION JEFFERSON, PETITIONER, v. KARASON COMPANY, RESPONDENT.
    Decided July 19, 1940.
    For the petitioner, Charles M. Grosman.

    For the respondent, Walter W. Hubley, Jr.

   í¡í !,« ^ íjf 5jf

From the stipulations entered into, the issue in this case was agreed to be as to whether or not the decedent’s death was either directly or indirectly the result of his accident while working for the respondent on November 8th, 1938.

The petitioner was called and testified in her own behalf. She testified as to her observation of the decedent and as to the events with which she was familiar prior to his death on November 30th, 1938. The petitioner also called, as medical witnesses in this case, Dr. Lewis, Dr. Kummel and Dr. Eose. All of these doctors testified that the decedent died as the result of peritonitis following an attack of acute appendicitis, which was operated upon and the appendix removed, said operation being performed on November 24th, 1938, and also associated with the decedent’s death was an attack of broncho pneumonia.

jH * % ❖ * ❖ ❖

After a careful consideration of all of the testimony presented in this case, and all stipulations and exhibits in this case, this court is satisfied that the petitioner has failed to sustain the burden of proof placed upon her by law. It is elementary that in a ease of this nature the burden of proof rests with the petitioner to prove that'the death of the decedent came as a result, either directly or indirectly, of an accident arising out of and in the course of the decedent’s employment. It is not in dispute in this case that the decedent met with an accident arising out of and in the course of his employment on November 8th, 1938; This accident, from the best evidence, appears to have been sustained by the decedent while driving a truck for his employer. It also appears from the evidence that the injury resultant from this accident was to the decedent’s back. The decedent was confined to the Newark Beth Israel Hospital, and X-rays were taken which indicated a possible fracture of the fifth lumbar vertebrae. A east was applied to the decedent’s body and after remaining in the hospital for a short period of time the decedent went home, where he was seen by the attending physician. He was also seen by the attending physician at the physician’s office. It appears from the testimony that on November 23d, 1938, the decedent was seized with acute abdominal pains and after getting in touch with the attending physician by telephone he reported to the doctor’s office and was removed from there to the Newark Beth Israel Hospital. His condition was diagnosed as acute appendicitis and an operation was performed early the following morning, following which operation the decedent died a few days later. The doctors called on behalf of the petitioner did not appear to be in any accord as to the cause of the decedent’s death. Dr. Lewis testified that, in his opinion, the appendicitis condition and the' decedent’s death following same, was in nowise related to the accident in this case, but that, in his opinion, the treatment rendered for the injuries sustained in the accident in this case, to wit, the application of a body cast, interfered with an accurate diagnosis of the decedent’s abdominal condition and that as a result of this alleged failure of diagnosis the decedent died. Dr. Kummel, on the other hand, was of the opinion that the decedent’s death resulted indirectly from complications brought about by the accident in this ease. Dr. Rose was of the opinion that the decedent’s death was indirectly due to the accident in this case, having in mind some possible direct trauma to the. abdominal region, or complications set up by the injuries sustained in the accident. The respondent’s witnesses were in accord that the decedent’s death was in nowise connected with the accident in this case. Dr. Bernadelli testified that as a result of the autopsy it was disclosed that the decedent had not sustained any fracture of any of the lumbar vertebrae. This doctor also testified that, as a result of his autopsy, he could find no connection with decedent’s death and the injuries received as a result of the accident of November 8th, 1938.

As hereinbefore stated this court is satisfied that the petitioner did not sustain the burden of proving her case. It does not appear to this court that the injuries sustained by the decedent as a result of the accident of November 8th, 1938, were of such severity or to such part of the body that any connection with same could be traced to the decedent’s death following an operation for an attack of acute appendicitis. As a matter of fact this court is inclined to agree with that portion of the testimony of Dr. Lewis, called on behalf of the petitioner, in which he stated that, in his opinion, the injuries sustained by the decedent as a result of the accident on November 8th, 1938, played no part whatsoever, either directly or indirectly, with the decedent’s death. This court cannot agree that there is any basis for the doctor’s opinion that the treatment for said injuries prevented a proper diagnosis being made. The attending physician testified that he had. observed the decedent and talked with the decedent during his afternoon office hours of November 23d, 1938, at which time the decedent made no complaint of his abdominal region; did not appear to be in any distress; and indicated that his condition was progressing satisfactorily. Later during the same day when the acute attack was had by the decedent the attending physician was immediately called and within a reasonably short time a complete examination and diagnosis was had and an operation was performed about five hours after the onset of the attack. This does certainly not indicate to this court that the decedent’s condition went unrecognized as a result of the treatment being followed for the injuries sustained in the accident of November 8th, 1938.

This court feels that the death of the decedent did not result, either directly or indirectly, in any way from the accident in this case and the injuries connected therewith.

It is * * * ordered that the petition of the petitioner be dismissed.

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    COSIMO VACCARO, Jr., AN INFANT, BY HIS NEXT FRIEND AND NATURAL GUARDIAN, FILOMENO STUMPO, AND SANTA VACCARO (VICARO), PETITIONERS, v. MURRAY D. WHITMAN, T/A M. D. WHITMAN & CO., RESPONDENT.
    Decided July 19, 1940.
    Por the petitioner Oosimo Vaccaro, Kohn & Gladstone.

    Por the petitioner Santa Vaccaro, Piro & Piro.

    Por the respondent, McDermott, Enright & Carpenter.

   In the case sub judice two questions present themselves for determination.

First: Amount of weekly wage.

Second: Distribution of the compensation payable.

As to the question of wages. The only definite testimony introduced at, the trial and the only testimony that could be given any credence was introduced by the respondent through Mr. Whitman.

lie testified that decedent was hired at the rate of $5 per day. That there were no specific number of days per week stipulated. The payroll records reflect that decedent worked from one to seven days per week. Sunday work was rare but on several occasions he did work on Saturday.

R. S. 34:15-37 (N. J. S. A. 34:15-37), under caption of “Wages” provides as follows:

“In any case the weekty wage shall be found by multiplying the daily wage by five, or if the employe worked a greater proportion of the week regularly, then by five and one-half, six, six and one-half or seven, according to the customary working days constituting an ordinary week in the character of work involved.”

From the testimony as well as the nature and character of work involved, I am of the opinion that six days would constitute an ordinary week and am holding that compensation should be based upon a wage of $30 per week.

As to dependency. Decedent left a widow and son, aged twelve as well as an illegitimate child by one Filomeno Stumpo who has filed a petition in his behalf alleging dependency.

The respondent admits the legal dependency of all parties and does not contest their rights to compensation as provided by the act but do request the bureau to apportion the amount due amongst the dependents.

R. S. 34:15-13 (N. J. S. A. 34:15-13), under caption “Distribution of Compensation,” reads in part:

“Distribution shall be made among dependents if more than one, according to the order of the Workmen’s Compensation Bureau, which shall, when applied to for that purpose determine, upon the facts being presented to it, the proportion to be paid to or on behalf of each dependent according to the relative dependency.”

Dependents defined include wife, children and illegitimate children.

The term “relative dependency” determines the manner in which the distribution is to be made.

Eelative, as defined in volume two Century Dictionary, is “having or standing in, a certain relation.” “Correspondent or proportionate (as, value is relative to demand); also, considered in relation to each other or one another or to something else or comparative.”

In this instance, the relative dependency of each is under the act of an equal status. Their classification is that of full dependents. They must share equally in the distribution.

Based upon the rate of $30 per week for three dependents, the weekly compensation payments is forty-five per cent, of same or $13.50 of which two-thirds is payable to the widow and her son Demetrio and one-third to Eilomeno Stumpo as guardian to Cosimo Yaccaro. Such payments to be made until Demetrio becomes sixteen when the weekly compensation payments are then computed upon forty per cent, of $30 per week or twelve dollars ($12) per week. This amount is divided equally between the widow and the guardian of the child until the expiration of 300 weeks from the date of death when the weekly payments are based upon thirty-five per cent, of $30 per week or $10.50 per week which is to be paid to the guardian of the child until he reaches the age of sixteen.

Death of any of the interested parties or remarriage of the widow will make necessary a modification of this order.

«* # H* ❖ ❖ ❖ *

John C. Wegnee,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ADAM GLEN, PETITIONER, v. M. ROSENBAUM & SON, RESPONDENT.
    Decided July 8, 1940.
    For the petitioner, Andar & Andrews.

    For the respondent, William B. MoMichael.

   * * * * * :'i

The petitioner, Adam Glen, was duly sworn and testified to the happening of the accident; that he fell from a scaffold about twelve feet from the ground as a result of the collapse of the scaffold, injuring his back as a result of the fall; that immediately following the accident he was taken to the Mountainside Hospital where he was first placed on a board for a week, then placed in a plaster of paris cast under the care of Dr. Nicola and thereafter furnished a brace and treated by Dr. Nicola for a period of six or seven months. He complained of stiffness in the back, inability to bend, to lift, inability to sleep on his back, a shortness of breath, inability to do any physical exertion. He testified that he never suffered any of these complaints prior to the accident. He has not worked since the date of the accident, May 12th, 1937. Petitioner testified to doing hard and regular work as a plasterer for a number of years, without any previous accident, without any previous injury or disease which disabled him from his work, except for minor colds.

Dr. E. Reissman for the petitioner, testified to the taking of X-ray films on March 19th, 1940, of the petitioner’s spine. He declared that the X-ray films showed a compression fracture of the 12th dorsal vertebra with wedging and irregularity of the anterior border and the superior border. Dr. Reissman also stated that the third lumbar vertebra showed a marked absorption of bone and a softening of the bony structure in the second and third lumbar vertebra. The third lumbar vertebra also showed an irregularity in bony outline. The X-ray films of the spine of the petitioner taken at the Mountainside Hospital immediately following the accident in May, 1937, were offered into evidence. The X-ray films showed the compression fracture of the twelfth dorsal vertebra and by comparison Dr. Reissman expressed the opinion that the absorption of the bone and the softening of the bony structure in the region of the third lumbar vertebra was due to the accident of May 12th, 1937. The X-rays also showed an extensive arthritic condition of the back.

Dr. Max Singer for the petitioner, testified that he did make an examination of the petitioner and of the petitioner’s back and that in his opinion considering the X-ray films taken in the case and from his examination, the petitioner had sustained a disability of fifty per cent, of partial total disability due to the accident. This estimate did not include any allowance for the heart or diabetic condition. He stated that while part of the arthritic condition pre-existed the accident of May 12th, 1937, he could not make any allowance for any disability pre-existing the accident, in the absence of proof of such pre-existing disability.

Dr. Monroe Green for the petitioner, testified that he examined the petitioner on June 17th, 1940; that he examined the petitioner’s heart and made a laboratory examination including a urinalysis and as a result of his examination found that the petitioner was suffering from an uncontrolled diabetes mellitus; that petitioner was also suffering from a coronary arterio sclerosis with a myocardial fibrosis. It was his opinion that the trauma of May 12th, 1937, aggravated the petitioner’s diabetic condition either to cause the onset of the diabetes or to aggravate the diabetic condition and further that the diabetic condition was aggravated by reason of the required treatment due to the trauma, namely, through lack of muscular exercise. The diabetic condition in turn in his opinion accelerated the arteriosclerotic condition of petitioner. It was Ms opinion that the condition of arterio sclerosis of the heart pre-existed the accident but not to the extent that he found it. In short, he expressed the opinion that the trauma either aggravated or brought on the diabetic condition and that the diabetic condition in turn accelerated the condition of the petitioner’s heart and so, in that respect, the accident was the cause of the diabetic condition and the petitioner’s heart condition. He estimated that the petitioner’s disability by reason of the diabetic condition and the heart condition was sixty per cent, of partial total disability, exclusive of the petitioner’s other orthopedic conditions and other conditions resulting from the accident.

Dr. M. W. Bergman, for the petitioner, testified to the making of a neurological examination on June 3d, 1940; that in his opinion the petitioner’s disability was seven and one-half per cent, of partial total disability due to the accident of May 12th, 1937.

Dr. JSTicola for the respondent, testified that he treated petitioner following the accident of May 12th, 1937, to finding of the compression fracture of the twelfth dorsal vertebra following the accident, to application of plaster of paris cast under anesthesia, to petitioner’s confinement to bed for about a month, to petitioner’s discharge from the hospital on June 18tli, 1937, and the last treatment on September 23d, 1937. Upon petitioner’s discharge the doctor estimated petitioner’s disability was twenty-five per cent, of partial total disability. On re-examination of the petitioner on April 24th, 1940, the doctor expressed the opinion that the petitioner complained of pain in the back, general weakness, increase of lumbar exostosis and that in his opinion the petitioner’s existing permanent disability was twenty-five per cent, of partial total disability. In examining the X-rays taken at the Mountainside Hospital and by Dr. Beissman he stated that the latter X-rays showed the compression fracture of the twelfth dorsal vertebra and an increase of the arthritis of the lumbar snino in the region of the third lumbar vertebra which also showed atrophy, but in his opinion the condition of the third lumbar vertebra was not causally related to the accident.

Dr. Smith for the respondent, testified to making an examination on April 23d, 1940, and his testimony was substantially to the same effect as Dr. Nicola.

Dr. Harkens for the respondent, testified to the same effect as Dr. Smith and Dr. Nicola with respect to the estimates of disability.

Dr. Blumberg for the respondent, stated that he made the neurological examination and he found petitioner’s disability to be five per cent, of partial total disability as a result of the neurological condition but this condition in his opinion was not due to the accident but was due to the condition of diabetes.

Dr. Mabey for the respondent, stated that he had specialized in the treatment of diabetes; that he had treated the petitioner at the Mountainside Hospital for the condition of diabetes; that upon the petitioner’s admission to the hospital he found ten per cent, sugar in the urine and a count of 166 for sugar in the blood; that this condition was rather a severe diabetic one and that in his opinion this condition pre-existed the accident of May 12th, 1937. He treated the petitioner for diabetes by diet but not by insulin and that in his opinion the diabetic condition was controlled as a result of the diet; that upon the petitioner’s discharge from the hospital he was sugar free at the time. He expressed the opinion that the trauma would not have any aggravating effect on the diabetes unless it was a mere temporary one for the reason that the condition had cleared up or had been controlled upon the petitioner’s discharge from the hospital.

Dr. Lewis for the respondent, testified to the examinations made and to the examination of the heart bjr electrocardiograph. He found a condition of diabetes present and the arteriosclerotic heart; that in his opinion the trauma would not aggravate the diabetic condition nor would it aggravate the heart condition.

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

That the petitioner did sustain an accident on May 12th, 1937, arising out of and in the course of his employment with the respondent.

H« Hi ❖ Hí Hí

That as a result of the said accident the petitioner sustained injury to his entire back; that as a result of said accident the petitioner sustained a compression fracture of the twelfth dorsal vertebra; that as a further result of said accident the region of the third lumbar vertebra suffered a marked absorption of bone and a softening of the bony structure; that the otherwise extensive arthritic condition of the petitioner’s back was aggravated by the said accident of May 12th, 1937. This finding of the aggravation of the arthritic condition or of the disablement caused by the arthritic condition is based in part upon the proofs in the case that prior to the accident of May 12th, 1937, the petitioner for a number of years did hard physical work as a plasterer without any previous accident, without any previous injury, without any previous complaints referable to the back.

That as the result of said injury to the back caused by the said accident, petitioner suffered a permanent disability to the extent of forty-five per cent, of partial total disability, credit to be given to the respondent for the payment based upon twenty-five per cent, of partial total disability heretofore made by the respondent.

That the petitioner is not entitled to any further compensation for and on account of temporary disability other than for the period of nineteen and two-sevenths weeks heretofore paid by the respondent.

I do further find and determine that the petitioner’s existing disability caused by reason of the condition of diabetes or by reason of his heart condition was not caused directly or by way of aggravation by the said accident; that the petitioner’s existing neurological condition is not caused directly or by way of aggravation by the said accident.

Hi Hi H< & H* Hi ❖

It is ordered that judgment shall be entered in favor of the petitioner and against the respondent.

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    KATIE VAN BODEGON, PETITIONER, v. STANDARD COATED PRODUCTS CORPORATION, RESPONDENT.
    Decided July 18, 1940.
    Por the petitioner, Nathan Babinowitz.

    Por the respondent, James J. Bheffington.

   Prom the evidence presented before me, it appears that on March 30th, 1938, and for many years theretofore, Peter Van Bodegon was employed as a truck driver by respondent, a manufacturer of coated textiles at 60 Clifton Boulevard, Clifton, New Jersey, at an average wage of $27.20 a week; that up to said March 30th, he had worked steadily and had been in sound health, without any sickness, colds excepted; that at about noon of that day, apparently well, he started out alone for New York City, driving one of respondent’s trucks—a one and one-half ton truck, with a rack or lattice body and an iron tailboard, containing bales and packages of respondent’s products for delivery, as directed by respondent, to three of its customers in that city; that one or more of the bales, weighing about 500 pounds and being fifty-seven by twenty by nineteen inches in dimensions, was or were to be delivered on the sidewalk, to Weiss and Klau, 462 Broadway, New York; that in making this delivery, Van Bogedon’s lower abdomen accidentally struck against the iron tailboard of his truck and that his urinary bladder was thereby ruptured; that upon his returning to respondent’s plant at about four-thirty o’clock in the afternoon of the same day, he seemed to observers—respondent’s employes—to be in pain; that he was in a stooped position, and apparently had difficulty in getting up on his truck; that he was a large man, heavy in build, but physically active; that his bearing and manner in respondent’s yard upon his coming back from his said trip was in such pronounced contrast to his usually energetic movement as to have drawn the notice and arrested the attention of several of his co-employes; that on handing in his delivery receipts to the employe of respondent, whose business it was to receive them from him, he reported that he had been hurt while making delivery to said Weiss and Klau’s—in handling a bale he had lost balance, he said, and slipped, and his lower abdomen had struck against the iron tailboard of the truck; that on the morning of March 31st, in his home in Clifton, where he resided with his wife, the petitioner, descended the stairs on his hands and knees, and held his abdomen and was in pain, and had no breakfast but coffee; that nevertheless he reported for work, but, so far as is shown by the evidence, did nothing beyond transporting by truck some small bales, weighing about 150 pounds each, to the express office at the Lackawanna station in Passaic; that he complained of pain, from time to time, throughout the day; that when he returned to his home at about six p. m. on March 31st, he was in acute distress; that a doctor was called in about a half hour later, and caused his removal to the Passaic General Hospital, in Passaic; that shortly after his admission there, he gave to a physician a “history” in regular course; that the physician thereupon examined him, and diagnosed the case as a rupture of the urinary bladder; that he was operated upon at nine-thirty v. m. on the same evening, and the operation confirmed the diagnosis; that on April 4th, 1938, he died in the hospital from peritonitis; and that the peritonitis was the result of the rupture—urine having been thereby disseminated through the abdomen—and the rupture the result of his said accident; and that the petitioner is his widow and his sole dependent.

A copy of the certificate of death of Peter Van Bodegon, made by Dr. Elroy W. Smith, his attending physician, to the New Jersey State Department of Health, Burean of Vital Statistics—certified by J. Lynn Mahaffey, director of the Department of Health of said state, under the official seal of said State Bureau of Vital Statistics, attested by Walter B. Scott, state registrar, was offered on the part of petitioner, and admitted in evidence, and marked P-1 as of May 7th, 1940. Eor the purpose of showing the last day on which Van Bodegon worked, respondent’s employment record of this employe was also offered on his behalf, and admitted and marked P-7 as of March 18th, 1940. And the report or notice of the alleged accident by respondent to its liability insurance carrier, produced by the latter on demand, was admitted also, and marked P-18 as of May 7th, 1940.

It appears from the statement, hereinbefore set forth, of the testimony that hearsay evidence was received; but I am aware that such evidence “can form no basis for an award.” Friese v. Nagle Packing Co., 110 N. J. L. 588; 166 Atl. Rep. 307.

Eliminating from consideration the declarations of the decedent, the competent evidence preponderates in favor of the petitioner.

The certified copy of the death certificate, complying strictly with R. S. 26:6-8, is, by statutory mandate, “prima facie evidence of the facts therein stated in all courts and pleas.” R. S. 2:98-14; N. J. S. A. 2:98-14.

That exhibit declares that “the principal cause of death and related causes of importance in order of onset were as follows: Peritonitis following ruptured urinary bladder;” “Date of onset 3/30/38.” It further declares that death was due to an “accident” occurring to decedent on “3/30/38” “while at work” in “industry,” and, more specifically, while “working on a truck and tailboard struck him in lower abdomen;” and that “the nature of injury” was “Blow to lower abdomen.” It still further declares that “E. W. Smith, M.D.” (who made the medical certificate of death), “attended deceased from 3/31/1938 to 4/4, 1938;” that he “last saw him alive on 4/4/1938,” and that the last named date was the date of death.

The witness, Dr. G-raeter, testified, in effect, that Dr. Elroy W. Smith was in fact the attending physician—that Dr. Smith performed the operation, Dr. Graeter assisting; and that he, Dr. Graeter, while licensed to practice at the time, was, in fact, then serving out a year as “an interne” in the hospital.

It appears that between the time of Yan Bodegon’s admission to the hospital and the hour of his operation (both on the same evening) that the interne took Yan Bodegon’s personal history (Exhibit P-2, 2/18/40); but the fact that on one occasion an interne obtained certain particulars from a patient raises no presumption that the attending physician, at some other time, did not obtain the like particulars from the same source.

Moreover, in making a certified copy of a death certifi■cate—the original of which has been “made by any person according to law”—prima facie evidence only “of the facts therein stated”—the legislature did not direct, or attempt to direct, the source or sources from which the maker should obtain “the facts.” The enactment (R. S. 26:6-8; N. J. S. A. 26:6-8) provides:

“In the execution of a death certificate, the personal particulars shall be obtained from the person best qualified to supply them.”

It next classifies the particulars as the “death and last sickness particulars” and as the “burial particulars,” and designates what person shall supply the one set and who the other: “The death and last sickness particulars shall be supplied by the attending physician, or if there be no attending physician, by the county physician or coroner. The burial particulars shall be supplied by the undertaker. Each informant shall certify to the particulars supplied by him by signing his name below the last items furnished.”

And this is precisely what was done in the present case— the attending physician certifying to the particulars supplied by him, and the undertaker to those supplied by him.

That Exhibit P-1 as of May 7th, 1940 (the certified copy of the death certificate) is competent "prima facie evidence of the facts therein stated in all courts and places,” seems to be settled law.

“Under statutes making copies of public records prima facie evidence of the matters that are stated therein, it is the practice to introduce in evidence certified copies of records of vital statistics—that is, birth and death certificates and the like which are required by law to be filed in public offices. Thus a physician’s certificate of death or a certified copy thereof, is admissible as prima facie evidence of the time, place and cause of the decedent’s death where the statute requires these matters to be stated in the certificate; and this is true although the statement as to the cause of death is a conclusion which the physician would not have been permitted to state as a witness giving oral testimony before the court.” Jones on Evidence 981.

The hospital records, so far as the same were offered and admitted, seem to be competent proof. Opdyke v. Hatbach, 123 N. J. L. 123; 7 Atl. Rep. (2d) 635.

Dr. Graeter testified that, in his opinion, the rupture of the urinary bladder was caused by trauma; and there was no expert opinion evidence to the contrary. And I cannot find the weight of his testimony to be affected by his statement that, in his physical examination of Van Bodegon, he observed no discoloration, or other external sign of trauma, on the latter’s abdomen. Uo expert testified or suggested that such sign should be expected, or that the absence of it would be unlikely. Van Bodegon, according to the evidence, was a large, heavy man; and it may, I suppose, be assumed that on March 30th, he was clad appropriately to the season.

The proven circumstances, neither rebutted nor denied, tend to confirm petitioner’s case.. Van Bodegon left the company’s plant on his New York trip apparently in one state of health; he returned a few hours later apparently in another—in pain, without his habitual agility, in a stooped position, and, as one witness phrased it, visibly “a hurt man.” The inference is that, in the course of his journey, some untoward thing had befallen him.

I have not failed to notice that in taking Van Bodegon’s history, the interne sets down that Van Bodegon had fallen at about seven-thirty o’clock on the evening of March 30th, and had not urinated since his fall; but there is no further evidence in regard to his fall, and no testimony that it caused, or could have caused, a rupture of the bladder. There is ample and credible and persuasive testimony (and no contradicting evidence) that he came back from his Yew York City errand “a hurt man.” The fall, of which the hospital record speaks, occurred later.

There is no substantial contradiction of petitioner’s case at any point or in any phase.

After carefully considering the competent evidence, excluding all hearsay, I find and determine that on March 30th, 1938, Peter Yan Bodegon met with an accident arising out of and in the course of his employment by respondent.

&

John J. Stahl,

Deputy Commissioner.


author: Jayne, C. C. J.

text:
    Cape May County Circuit Court.
    IN THE MATTER OF THE APPEAL FROM PROBATE OF ALLEGED WILL OF BEULAH MATTER COLLINS, DECEASED.
    Decided July 10, 1940.
    For the rule, T. Millet Hand.

    Contra, J. Victor D’Aloia.

   Jayne, C. C. J.

The propriety of a decree of the surrogate admitting to probate a paper-writing purporting to be the last will of Beulah Matter Collins was challenged on appeal in the Orphans Court. The Orphans Court certified certain factual questions to this court for determination by a jury. R. S. 3:2-31.

Specifically stated, the issues of fact thus submitted were: (1) Whether the paper presented for probate, purporting to be the last will and testament of Beulah Matter Collins, deceased, was signed, witnessed, published and declared by her according to the statute in such case made and provided;

(2) whether the said Beulah Matter Collins was at the time of making and declaring said alleged will possessed of testamentary capacity and capable of disposing of her estate; and

(3) whether Edgar Petherston, the executor named in said alleged will, unduly and fraudulently induced and influenced said Beulah Matter Collins to sign and execute the alleged will.

A relatively large volume of testimony was introduced at a trial occupying four days and the jury concluded that the writing was executed, published, declared and attested in conformity with our statutory requirements; that Mrs. Collins at the time of the making of the will possessed the legally required mental capacity to make a valid will. The jury, however, resolved that undue influence had been practiced by Mr. Petherston upon Mrs. Collins which induced her to make the will.

The proponent of the will now has a rule to show cause why the verdict should not be annulled and a new trial of the issues allowed. The power of this court to nullify the verdict in such cases is indubitable, R. S. 3:2-33.

The most cogent reason among those assigned for a new trial relates to an impropriety in the deliberations of the jury. The depositions of Ralph TSTorton, the constable in charge of the jury, Miss Dorothea Wein, employed in the office of the county superintendent of schools, and H. Moffat Roorbach, the deputy county clerk who received the verdict, were taken. These persons were not members of the jury and their depositions are assuredly competent evidence in determining the basic facts in support of the present ground for a new trial. Dufy v. McKenna, 82 N. J. L. 62; Queen v. Jennings, 93 Id. 353, 358.

Concisely stated, these depositions reveal that at nine o’clock in the evening during the deliberations of the jury, one of that body informed the constable in attendance that the jury desired a dictionary to ascertain the meaning of the two words “undue influence.” A member of the jury stated to the constable that there appeared to be a light in the office of the county superintendent of schools and that he could doubtless obtain a dictionary at that office. The constable, without consultation with the court or any other official of the court, procured from Miss Wein at the office of the county superintendent a copy of “The Winston Simplified Dictionary” and delivered it to the jury. The jury returned to the court room to announce their verdict at ten-fifteen o’clock in the evening and the dictionary was then handed to the deputy county clerk.

Obviously the act of the constable was stupid and unjustifiable. The dictionary was incompetent evidence and if offered in evidence at the trial to aid the jury, it would have been excluded. Here no use of the dictionary could be proper. Where an inadmissible writing, book or article improperly reaches the jury during their deliberations, the primary inquiry is whether such extraneous object was of a character likely to prejudice, influence or mislead the jurors in their deliberations. Compare Rorer v. Rorer, 48 N. J. L. 50; Nordsick v. Baxter, 64 Id. 530. Assuredly, the use of a simplified English dictionary to explicate established principles of law as expressed in language approved by our courts is beyond the avowed scope of such a work and in such use, misguidance is more than probable.

Keported decision relating to the unauthorized 'use of a dictionary by a jury are presumably scarce. The following can be cited: Daniels v. Barker (N. H.), 200 Atl. Rep. 410; Long v. Payne, 198 App. Div. 667; 190 N. Y. S. 803; Wright v. Clark, 50 Vt. 130; 28 Am. Rep. 496; Corpus Christi Co. v. Kjellberg (Tex. Civ. App.), 185 S. W. Rep. 430; Lightburne v. Bank (Tex. Civ. App.), 232 S. W. Rep. 343.

Ordinarily, whether an inappropriate dictionary definition was productive of an idea or course of reasoning which materially contributed to the conclusion of the juror, is a problem too delicate to be safely made the basis of judicial inquiry.

It is the duty of the trial judge to expound the law to the jury and to afford the attorneys of the litigants an opportunity to hear the instructions and to register exceptions to any instructions considered to be erroneous. It is the duty of the jury to accept the law of the case as expressed in the language chosen by the court.

It is not inapt to quote excerpts from the charge given in the present case to the jury pertinent to the subject of undue influence. The transcript of the stenographically reported charge discloses that the trial judge stated: “There remains to be considered the third question of fact presented to you for decision: Was fraud and undue influence exerted by Mr. Eetherston which induced Mrs. Collins to make this will? In alleging that this paper was the product of undue influence exerted upon Mrs. Collins by Mr. Eetherston the appellant has. of course, the burden of proving it. Concisely stated, undue influence, says the law, is such influence as dominates the will of the testatrix and produces a testamentary disposition which the testatrix would not have made if she had not been coerced by such influence. It must be influence of such a character as to destroy the free agency of the testatrix and amount to a moral or physical coercion. * * * There must be a control, in other words, over the mind of the testatrix or an importunity, to employ the word used in this request, practiced which she could not resist and to which she yielded. * * * As I said before, undue influence is that influence which amounts to moral or physical coercion inducing the testatrix to subordinate her own intentions, and inducing her to do that which she would not have otherwise done in the distribution of her property. * * * It must, however, be made to appear from the circumstantial evidence by justifiable and fair inferences from those established circumstances that such influence was, in fact, exerted and that it dominated and controlled the will of the testatrix and coerced her to make a testamentary disposition of her property which she otherwise would not have made.”

The charge to the jury, embracing statements of the law relating to the three subjects, of formal execution of a will, testamentary capacity and undue influence, was necessarily somewhat lengthy. Evidently the jurors or some of them had a somewhat nebulous recollection of the instructions concerning undue influence. This circumstance is in itself significant in considering the allowance of a new trial. To justly decide the particular issues of this case, a reasonably clear comprehension of the pertinent rules of law was indispensable. The manifest need of a dictionary seems to refute the assumption that this jury understood and remembered the instructions relating to undue influence.

Depositions of the members of the jury are presented on behalf of the appellant in the effort to protect the verdict. Such depositions may be employed to enable jurors to exculpate themselves from a charge of misconduct. Kennedy v. Kennedy, 18 N. J. L. 450; Hutchinson ads. Consumers’ Coal Co., 36 Id. 24. Undoubtedly the affidavits of the jurors would be competent to prove that a dictionary was not requested, received or used by them. The use of depositions of jurors to elicit from them the course of reasoning pursued and the factors and premises upon which they based their ultimate conclusion, has never been sanctioned on an application for a new trial. Just as public policy has forbidden the use of depositions of jurors for the purpose of impugning or destroying the verdict, so likewise has it prohibited the reception of such depositions to prove the ground of the verdict. Lindauer v. Teeter, 41 N. J. L. 255; Peters v. Fogarty, 55 Id. 386; Queen v. Jennings, 93 Id. 353; Bragg v. King, 104 Id. 4; Marconi v. MacElliott, 8 N. J. Mis. R. 69. The object here is to prove by the jurors themselves that they were not influenced by the use of the dictionary. An erroneous charge, for example, is not rendered harmless merely because the jurors swear that they did not listen to it. Justice can not be administered on any such fortuitous basis. However, the jurors acknowledge that some were dubious of the meaning of the word “unduly;” that the dictionary was in fact obtained and was consulted by -some of them. They assert that the word “unduly” was not in the dictionary. The dictionary used by the jury is at hand and the adverb “unduly” appears under the word “undue.” Many of the definitions of the word “undue” are too broad and inappropriate to be applied to the evidence in this case.

The power to grant a new trial is essentially remedial in character. In the present case the issue relating to undue influence was exceedingly controversial. In all the circumstances it ■would seem that the evidence on this branch of the ease was not considered with an adequate understanding of the pertinent rules of law. Moreover, the power to vitiate a verdict is not only exercised with a view to the prevention of injustice in the particular case but also with a view to the ultimate effect of the decision upon the administration of justice in general. Hutchinson ads. Consumers’ Coal Co., supra. The unauthorized use of a dictionary, as in this case, can not be condoned.

Eule absolute.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY MORAN, PETITIONER, v. ANNA McKIM, RESPONDENT.
    Decided May 15, 1940.
    For the petitioner, Quinn & Doremus (Vincent J. McCue).

    For the respondent, Cox & Walburg.

   # ❖ ❖ ❖ & #

The determined facts in this case establish that the petitioner’s decedent, James Moran, was in the employ of respondent on May 1st, 1939, as a chauffeur at her residence in Middletown Township, New Jersey, apparently used as a summer residence by respondent. On the day in question the home was being opened for the summer season and the family arrived on that day for that purpose. It was necessary for the petitioner to go to the station and bring the employer and various servants to the home and thereafter to put away in an upstairs storeroom, with the assistance of a fellow workman, certain trunks. There is testimony to the effect that in the process of taking .these trunks up the stairway petitioner asked his helper to let the trunk down for a minute in order that he might get his breath. This was about two-thirty p. m. He then apparently continued about his regular duties and arrived home at six p. m. that evening, ate a light supper and shortly thereafter suffered a heart attack. A doctor was summoned and gave him stimulants. Petitioner after remaining in bed for three days and recovering to some extent got np and walked around. He then suffered another attack and was sent by the doctor to the hospital where he remained about three weeks. He was then returned home where he remained several days and then suffered a third attack being then sent to the hospital for the second time. He again made some measure of recovery and was allowed to return home, remaining there again for three or four days when he suffered another attack and was sent to the hospital for the third time where he remained until his death on September 14th, 1939. The medical witnesses are agreed that the cause of his death was hypertensive cardio vascular disease based on luetic aortitis. The evidence discloses that this condition was of long standing and in fact it appears that petitioner’s physical condition was very bad and he had been warned by his physician to refrain from all hard work as the least exertion might have fatal results. There was testimony to the effect that he had suffered a previous attack in ^November of the previous year and also in March of 1939.

Deceased’s treating physician and experts called by petitioner testified that the exertion incident to the carrying of the trunks up the stairway, in view of deceased’s pausing to rest while doing so, would have been the precipitating cause of his subsequent collapse, although experts on behalf of respondent gave it as their opinion that this incident was not a competent contributing cause of his collapse and death as there should have been immediate symptoms of cardiac distress which they say are not shown by the facts.

Counsel for petitioner urging that the proofs sustain her claim stresses the trunk incident as evidence that petitioner’s decedent suffered injury by accident arising out of and in course of his employment resulting in his subsequent death. Respondent’s counsel on the other hand maintains that this incident does not support such a finding because of the lack of immediate symptoms and collapse.

However, it seems to me that both counsel miss the significance of the testimony of the witness, David George, a fellow employe of deceased, and the person who assisted him in carrying the trunks up the stairway, to the effect that the family and servants had that day arrived to open the home for the season and that it was necessary for deceased to drive to the station to meet and bring them to the residence and to assist in the attendant activities of preparing the residence for the seasonal opening thereof. The picture thus presented is one of unusual activity about the premises on the day in question of which the trunk incident was only one, but perhaps an outstanding one as evidencing that the deceased was on the day in question under unusual strain and the request for pause in execution of this task points to beginning collapse, not only from that incident itself but from the strain of the other activities of the day as well superimposed thereon.

Again in regards to respondent’s contention that the collapse should be immediate if caused by the trunk incident we should note that apparently decedent was a man of unusual reserve as indicated by his recovery from previous heart attacks and the further fact that even after the final collapse he did not die until four and one-half months later and after several partial recoveries therefrom. Dr. Meehan’s testimony on this point seems pertinent wherein he stated that the collapse need not be immediate but would depend to a great extent upon the individual’s reserve powers.

The law places the burden of proof on the petitioner for compensation; and it is not sustained unless the evidence preponderates in favor of the tendered hypothesis. That must be a rational inference, i. e., based upon a preponderance of probabilities according to the common experience of mankind. It is required to be a probable or more probable hypothesis with reference to the possibility of other hypotheses. Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533; 6 Atl. Rep. (2d) 213. In my opinion petitioner has sustained this burden.

The Court of Errors and Appeals in the case of Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, states, “We think that the requirement that the injury or death arises by accident under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained, i. e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred.”

I do therefore find and determine that the decedent James Moran, met his death as the result of injuries incurred in an accident arising out of and in course of his employment with respondent on May 1st, 1939, his death occurring on September 14th, 1939.

* * $< i]t * * #

JrÍAEEY H. TJmBEBGEE,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EMANUEL DE CASTRO, PETITIONER, v. MUNDET CORK CORPORATION, RESPONDENT.
    Decided August 6, 1940.
    For the petitioner, Meyer Linniclc (by John A. Laird).

    For the respondent, George E. Meredith (by Walter W. Hubley, Jr.).

   % H* ❖ . ❖ ❖ ❖

At the time of the hearing it was stipulated and agreed between the parties that this matter should be submitted to the court on the question of liability, i. e., whether or not the petitioner met with an accident arising out of and in the course of his employment.

The petitioner was called and testified in his own behalf. He testified that he was employed by the respondent in this case as a fireman; that he had worked in this capacity for the respondent for several years; that on October 23d, 1939, he was working on the night shift, his work commencing at eleven p. m.; that he had reported on the job and after doing some of his work incidental to the operation of his engines he had become somewhat ill at his stomach and had left his place of employment to go to a nearby lunch wagon or restaurant for a cup of coffee; that he had made his way from the boiler room to the yard of the plant and out of the gate of the fence surrounding the premises onto the public sidewalk ; that he had walked down same for some little distance and then had proceeded to cross highway Ho. 29; that the approximate distance he had to cover in going from his place of work to the highway was 150 feet; that when he was almost across the highway he had been struck by a passing automobile; that a period • of incapacity had followed the accident; that he had then returned to work and is now employed by the same employer.

On cross-examination the petitioner was confronted with a signed statement which he admitted, in which statement it appeared that the petitioner had stated that he was leaving the place of employment in order to go for some coffee and a sandwich as he had not brought any lunch with him on the night in question. Some effort was made on the part of the petitioner to explain this part of the statement. On cross-examination the petitioner also stated that, while it did not appear in his statement, he had advised his employer that he had left the place of employment because he had felt sick at his stomach. The petitioner also admitted that he had only left his place of employment during working hours on one or two other occasions during his period of employment with the respondent.

The respondent called as its witnesses the petitioner’s foreman and the master mechanic in charge of the plant. Both of these witnesses described the petitioner’s occupation; his period of employment; his hours of employment; and from the testimony of one of these witnesses the distance from the petitioner’s place of employment to the point of accident was explained; this witness pointing out that in order for the petitioner to get from his point of work to the point of accident he would have to walk out of the plant, through the yard of the plant, leaving the plant premises through a gate and going onto the public sidewalk, and from there walking down the public thoroughfare, a distance of several blocks at least, to the point where he crossed the highway toward the lunch wagon, the entire distance being a considerably greater extent than that testified to by the petitioner. Both of these witnesses also denied that at the time of their first conversation with the petitioner he had said anything to them at all relative to his leaving his place of employment in order to get coffee to aid a sick stomach. The respondent also called as its witness Mr. Trout, investigator for the insurance carrier of the respondent. This witness testified relative to the statement obtained from the petitioner.

The respondent offered into evidence the statement of the petitioner.

The petitioner called as rebuttal witnesses two fellow employes, who were working with him at the time of the occurrence.

There is only one question presented to this court: Did the accident suffered by the petitioner arise out of and in the course of his employment ? It is elementary that in order that the petitioner may recover from his employer both of these elements must be met. It is also elementary that the burden of proof is placed upon the petitioner.

In a trial of a case such as we have before us the credibility of the witnesses is of prime importance. To weigh the credibility from the testimony, observation, attitude and demeanor of the witnesses is one of the most important tasks confronting the court in such eases. In the present case this court seriously questions the credibility of the petitioner and his two lay witnesses. On the other hand the witnesses called on behalf of the respondent appeared to be very credible and more than willing to furnish the court with all of the facts in their possession.

In addition to this court’s doubt as to the weight of the testimony produced by the petitioner this court is also of the opinion that if all credence is given to the story of the petitioner and his witnesses, nevertheless the petition must be dismissed. This court cannot find that the accident suffered by the petitioner arose out of and in the course of his employment, even if this court believes that the petitioner left his place of employment to procure coffee for a sick stomach and in doing so walked on a public thoroughfare and across a state highway and was struck by a passing automobile. This court still feels that the petition must be dismissed. I cannot find that the accident suffered by the petitioner arose out of and in the course of his employment. It clearly appears that the employment was abandoned even though said abandonment might have been only temporary as intimated by the petitioner. While it may have been his intention to have returned to his employment after having procured coffee and a sandwich at the lunch wagon, nevertheless it would be only sheer speculation to assume that the petitioner would have, or could have, carried out his alleged intention. Looking at this case from the most favorable angle to the petitioner this court cannot find for the petitioner. In addition, as hereinbefore mentioned, this court was not at all satisfied with the credibility of the petitioner’s case. The petition must be dismissed.

* * * ^ * * *

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AMANDA HENDERSON, PETITIONER, v. IDA SHAW, RESPONDENT.
    Decided July 18, 1940.
    For the petitioner, Emil Neblo.

    For the respondent, Francis X. Kenneally.

   ijí % í|; ;¡;

This case involves an accident suffered by petitioner on May 27, 1932, while in the employ of respondent. Pleadings filed on behalf of the petitioner are in effect an application to reopen the original petition filed in the case on July 12th, 1932.

At the opening of the trial respondent moved for a dismissal of the present petition, filed on December 16th, 1939, on the ground that the same was not filed within the time limited by law, namely within two years of the last payment of compensation, which was made under agreement of compromise entered into by the parties litigant following and as a result of the petition of July 12th, 1932, which agreement was entered into under date of November 12th, 1932. Under the terms of this agreement respondent made payment of temporary compensation for the period of May 27th, 1932, to and including November 3d, 1932, and in addition thereto twenty-five per cent, of total disability, 125 weeks, payments thereunder would have terminated March 28th, 1935, in the statutory sense.

In opposing said motion, petitioner’s counsel advances the theory that since there was no hearing on the merits of the case, the petition of July 12th, 1932, is undisposed of and is to-day in full force and effect and petitioner is now entitled to a determination of the case on its merits thereunder, citing in support of this contention the cases of Ruoff v. Blasi, 117 N. J. L. 314; P. Bronstein & Co. v. Hoffman, 117 Id. 500; Stroebel v. Jefferson Trucking and Rigging Co., 124 Id. 210.

In all of these cases, however, it is noted, and expressly remarked upon by the court, that the petition to reopen was filed either within two years of the last actual payment, or within two years when the compensation in the statutory sense should have been paid. Such is not the situation here for the compensation under the agreement in' this case in the statutory sense would have been completed on March 28th, 1935, as noted above, although actually paid in a lump sum at the time of the making of the agreement, and the petition to reopen was not filed until December 16th, 1939, over four years later.

It would seem that the making of payments under an agreement for compensation puts in operation the statutory time limitation and requires that a petition, in a factual situation such as the case at the bar, for additional compensation be filed within two years of the last date of payment in the statutory sense. There are many cases reported where reopening has been allowed after the making of an agreement but in every one of them the petition for reopening was filed within the statutory time limit, and the mere fact that a petition had been filed prior to the making of the agreement would not affect the running of the statute. Lusczy v. Seaboard By-Products Co., 101 N. J. L. 170; 127 Atl. Rep. 212; Ecken v. O'Brien, 116 N. J. L. 94; 183 Atl. Rep. 273.

I conclude, therefore, that the bureau is without jurisdiction to entertain the present petition and same should be dismissed.

Hi ❖ H* H« Hi^Hi

Harry H. Umberger,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. UNIVERSAL INSURANCE COMPANY, RESPONDENT. CITY OF NEWARK, PETITIONER, v. UNIVERSAL INDEMNITY INSURANCE COMPANY, RESPONDENT.
    Decided July 23, 1940.
    For the petitioner, James F. X. O’Brien (by Raymond Schroeder).

    For the respondents, Child, Riker, Marsh & Shipman (by Jehiel G. Shipman).

   Quinn, President.

Each of the respondents is a stock insurance company, subject to assessment for the tax years 1937 and 1938, upon capital stock and accumulated surplus, under Pamph. L. 1918, ch. 236, § 307 (R. S. 54:4-22; N. J. S. A. 54:4-22), “in the taxing district where its office is situate.” Assessments were levied by the city of Newark against Universal Insurance Company, in the sum of $575,000 for each of the years 1937 and 1938, and against Universal Indemnity Insurance Company in the amount of $320,300, for said years. Upon appeal to the Essex County Board of Taxation, each assessment was canceled. The single issue involved is as to whether either of the companies had “its office” in the petitioner taxing district upon the assessing dates for the tax years in question, being October 1st, 1936, and October 1st, 1937.

The proof adduced at the hearing by the respondents establishes the fact that the only offices maintained by them in the state upon either of the dates referred to were the statutory registered offices required to be established by the companies as domestic corporations, these being located in the city of Jersey City. Taxes were assessed against and paid by the companies in that taxing district for the years in question. The actual headquarters of the companies and their chief executive and managerial offices are and always have been in New York City.

The petitioner taxing district bases its appeal, however, upon the thesis that respondents did maintain offices in Newark prior to October 1st, 1936, but in August of 1936 adopted a fictional device for the purpose of avoiding further taxation by that municipality, by transferring the operations of their offices theretofore existing in Newark, to their closely affiliated general agency, Talbot, Bird and Company, which allegedly carried on the identical operations of the respondents in Newark, in the same offices, and using the same personnel as theretofore employed by them.

The facts established by the proof in this connection are these. Prior to August, 1936, the Universal companies maintained a service office at 1180 Raymond Boulevard, for purposes of assisting agents and brokers who wrote insurance for the companies throughout the state. The bulk of the work of the companies was done at their chief offices in New York City, to which agents remitted premiums and applications for insurance. The statutory registered offices were with a firm of lawyers in Newark. In August, 1936, the registered offices were removed to Jersey City, the service office in Newark was discontinued, and the office space and personnel taken over by Talbot, Bird and Company. The latter company is a New York corporation engaged in the business of general insurance brokerage, organized many years prior to the formation of the respondent companies, and now acting as brokers for many insurance companies throughout the country, although a substantial proportion of its business consists of insurance written for the respondent companies. It is duly authorized to transact business in New Jersey, and it paid personal property taxes to the city of Newark in 1937 and 1938. It is clear to us from the proof adduced that Talbot, Bird and Company is an entity distinct and separate from the respondent corporations, and that it is doing a genera] insurance brokerage business in Newark that cannot be identified with the proper functions and operations of respondents in any sense other than with those of other insurance companies represented by it. If it were material, therefore, we do not believe it could fairly be stated that Talbot, Bird and Company is a fictional entity devised by respondents to avoid taxes properly chargeable to them in Newark.

But we do not regard the motivation for the changes in office arrangements made by respondents in August, 1936, as material. The removal of the office of a corporation from one taxing district to another, where complete, in good faith and without reservation, is effective to change the taxable situs of the intangible personalty of the corporation, even where the purposes of such removal is the avoidance of taxation in the first taxing district. City of Newark v. New Jersey Investment Co. (State Board, 1940), 18 N. J. Mis. R. 182; 11 Atl. Rep. (2d) 730; and see Hoboken v. State Board of Taxes and Assessments (Supreme Court, 1930), 107 N. J. L. 35; 151 Atl. Rep. 364; affirmed (Court of Errors and Appeals, 1931), 108 N. J. L. 195; 156 Atl. Rep. 377; Hoboken v. The Hoboken Dock Co. (State Board), filed September 12th, 1939.

It is unnecessary to consider whether the reference to “office,” in section 307, is construable as meaning “chief office,” as specifically provided for the determination of the taxable situs of corporate intangibles in the case of ordinary corporations, in section 305 of the 1918 Tax act (R. S. 54:4-19), since, in our view, there is no room for dispute of the proposition that respondents maintained no office whatever in the city of Newark upon the assessing dates for either of the years in question. City of Newark v. Excess Insurance Co. (State Board, 1940), 18 N. J. Mis. R. 181; 11 Atl. Rep. (2d) 741.

The judgments of the Essex County Board are affirmed.


text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. ESTATE OF CARL G. LEHMAN, RESPONDENT.
    Decided July 23, 1940.
    For the petitioner, James F. X. O’Brien (by Vincent J. Casale).

    For the respondent, Lum, Tamblyn & Fairlie (by John M. Leavens).

   Quinn, President.

The parties have entered into a stipulation of' the following facts upon this appeal. Carl G-. Lehman died on September 23d,- 1936, testate, a resident of Newark, bequeathing two legacies of $5,000 each to residents of New Jersey. These were paid in full by the executors in 1938 with interest computed from September 23d, 1937, when they matured (Comp. Stat. 1910, p. 3087, § 1; R. S. 3 :26-1; N. J. S. A. 3:26-1), to the date of payment. As of October 1st, 1937, the assessing date for taxation for the year 1938, the assets of the estate consisted of cash of $3 8,727.76 and securities of $64,487.20, or a total of $83,214.96. A claim was hied by the estate with the assessors of the taxing district for deduction of exempt securities, amounting to $62,380.95, and for debts in the sum of $25,375. The city thereupon levied a personal property assessment against the estate in the amount of $21,000. An appeal to the Essex County Board of Taxation resulted in a reduction of the assessment to the sum of $7,500, and upon this appeal the petitioner seeks to restore the original assessment.

It was conceded by the respondent at the hearing that of its claimed deductions for debts, it was not lawfully entitled to any part thereof other than the $10,000 in matured legacies hereinabove referred to, while the taxing district conceded the allowability of the exemption claimed for securities. The narrow issue between the parties, therefore, is as to whether the amount of the legacies in question was properly deductible, under Pamph. L. 1918, ch. 236 (R. S. 54:4-14; N. J. S. A. 54:4-14) from the taxable personal estate. The statute directs a deduction of “all debts bona fide due and owing * * * to creditors residing in the state.” Petitioner maintains that the obligation of the executors of the estate to make payment of the legacies did not constitute a “debt,”' within the intent of the deduction statute.

As of September 23d, 1937 (and, perforce, on October 1st, 1937), the legatees were entitled to maintain an action of debt against the executors for the recovery of their legacies, there being sufficient assets in the estate therefor, under Comp. Stat. 1910, p. 3087, § 1 (R. S. 3 :26-25; N. J. S. A. 3 :26-25). In Passaic National Bank v. Eelman (Supreme Court, 1936), 116 N. J. L. 279; 183 Atl. Rep. 677, the court said, in construing the term “debt,” as employed in the Execution act (at p. 281) :

“The ordinary legal sense of the term ‘debt’ is an obligation for the payment of money founded upon a contract, express or implied. Turner v. Cole, 118 N. J. Eq. 497. Its technical meaning at common law was 'a sum of money due by certain and express agreement5—that for which an action of debt or indebitatus assumpsit would lie. 3 Bl. Com. 154; Flanagan v. Camden Mutual Insurance Co., 25 N. J. L. 506. But it is also used in the larger sense of that which one person is bound to pay to another under any form of obligation. New Jersey Insurance Co. v. Meeker, 37 Id. 282, 300. This is its general significance. Webster’s New International Dictionary (2d ed.). See, also, 17 C. J. 1371. It is a word of large import; in its popular signification, it includes all that is due to a person 'under any form of obligation or compromise. Gray v. Bennett, 3 Metc. 522, 526.

“In the main, the distinguishing characteristic of such an obligation is that it is for a sum certain, or a sum readily reducible to a certainty. Flanagan v. Camden Mutual Insurance Co., supra. It is an obligation to pay a sum certain, or a sum which may be ascertained by a simple mathematical calculation from known facts, regardless of whether the liability arises from contract or is implied or imposed by law. Stockwell v. United States, 13 Wall. 531; 20 L. Ed. 491; Indian Refining Co. v. Taylor, 195 Ind. 223; 143 N. E. Rep. 682, 689; H. G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118; 103 N. E. Rep. 469; State v. Latham, 136 Tenn. 30; 188 S. W. Rep. 534; 18 C. J. 3, 4, 6. Whatever the law enjoins one to pay takes the legal classification of a debt. 3 Bl. Com. 158."

In the same case the court further pointed out (at p.282 that in construing the use of a term by the legislature—

“The intent of the lawmaker is to be collected from a general view of the whole clause, bearing in mind the occasion and necessity of the law, the mischief felt and the remedy in view, * * *.55

The obvious purpose of the tax deduction statute is to avoid the double taxation which results if a chose in action is subjected to taxation in the hands of the obligee, without deduction therefor being made available to the obligor or debtor. The legatees involved in the present case were assessable for the claims they held upon the assessing date, against the estate, in their true value, as “credits,” under R. S. 54:4-12 (N. J. S. A. 54:4-12). There is therefore no sound reason why the obligation of the estate to make payment thereof should not be construed as a deductible debt. The situation presented in this case is to be distinguished from that involved in the recent decision of Zoller v. State Board of Tax Appeals (Supreme Court, 1940), 124 N. J. L. 376; 11 Atl. Rep. (2d) 833, where it was held that the executrix of an estate, who was likewise sole beneficiary under the will, was assessable for the amount of the estate as executrix, and not individually, where no order of distribution had been obtained and the one-vear period within which to pay legacies had not expired, as of the assessing date. There was no holding or suggestion that a claim for deduction of any type of debt to a Jiew Jersey resident, upon proper claim filed, is any less available to an estate-taxpayer than to an individual.

The deduction for debt in the amount of $10,000 will be allowed. Deducting this amount, together with the figure for exempt securities, in the sum of $62,180.95, from the conceded total assets in the estate of $83,214.96, leaves a taxable balance of $11,034.03. The judgment of the Essex County Board will be reversed and the assessment ordered fixed at $11,034.01.

J udgment accordingly.


text:
    State Board of Tax Appeals.
    TRENTON LODGE NO. 105, BENEVOLENT AND PROTECTIVE ORDER OF ELKS, PETITIONER, v. CITY OF TRENTON, RESPONDENT.
    Decided July 23, 1940.

      Tor the petitioner, Joseph Bash and Joseph Fishberg.

    Tor the respondent, Louis Josephson.

   By the Boakd. Petitioner seeks exemption from taxation for the year 1939 for the land and building constituting its lodge quartei’s in the respondent taxing district. An appeal from the assessment was dismissed by the Mercer County Board of Taxation. The application is based upon R. S. 54:4-3.26 (N. J. S. A. 54:4-3.26), exempting property of fraternal organizations, no part of which is used for pecuniary profit.

It is not disputed herein that petitioner qualifies as a fraternal organization within the category of those referred to in the exempting enactment, but it is urged by respondent that operations for profit are conducted on the premises such as deprive petitioner of the exemption to which it would otherwise be entitled. Beference is had in this connection to the maintenance of a bar and buffet in the building, for the convenience of members of the organization and their guests, at which pecuniary charges are made for the food and liquor served; and to occasional entertainments run by the organization, admission to which is limited to holders of tickets sold to members and their friends.

The testimony is to the effect that the organization has been running at a financial loss for the last several years past, depending almost entirely upon membership dues for its sustenance. The charges made at the bar are reasonable, and designed to meet the expense of its operation, which they barely do. The proceeds of the entertainments seldom exceed the cost of running them, and, in such instances as a small excess happens to accrue, it is turned into the fund maintained by the lodge for crippled children.

The foregoing circumstances do not indicate an operation for pecuniary profit, within the reasonable intendment of the statute. We have heretofore held, and have been sustained in so holding, that the operation of a bar for the accommodation of members of a fraternal organization and their guests, in the course of which no profit ordinarily ensues, and the conducting of other facilities for the entertainment of members and friends, in furtherance of the broad fraternal purposes of such an organization, are not uses for profit within the statute, even though reasonable pecuniary charges, requisite for the maintenance of such facilities, are made for them. Hoboken Lodge No. 74, B. P. O. E. v. City of Hoboken (State Board), filed February 21st, 1939; affirmed, Hoboken v. Hoboken Lodge No. 74, B. P. O. E. (Supreme Court, 1939), 123 N. J. L. 506; 9 Atl. Rep. (2d) 783.

Gases of continuous and studied profit-making ventures by fraternal organizations are to be distinguished from the situation presented in this case. Regularly held bingo games open to the public for a fee, commercially operated restaurants open to the general public, and the systematic and regular rental of rooms to the public at large at fixed fees, are examples of uses which have moved this board to deny exemptions from taxation to fraternal organizations. Plainfield Lodge No. 885, Benevolent and Protective Order of Elks v. City of Plainfield (State Board), filed February 21st, 1939; Benevolent Protective Order of Elks, Lodge No. 233, v. Borough of Red Bank (State Board), filed January 24th, 1939; Fifty-Six Seminary Avenue Corp. v. City of Rahway (State Board), filed April 4th, 1940.

We are of the opinion that no showing is made in this case warranting the deprivation of petitioner’s statutory right of exemption. The assessment will therefore be ordered canceled.