author: Pee Gubiam.

text:
    UNITED ROOFING COMPANY, A CORPORATION, PLAINTIFF, v. INDEPENDENT BONDING AND CASUALTY INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Argued October 7, 1930
    Decided May 20, 1931.
    Before Gummeke, Chief Justice, and Justices Tbenchaed and Lloyd.
    Eor the rule, Hudspeth & Harris.

      Contra, Winne & Banta.

   Pee Gubiam.

In this case a verdict was entered in favor of the plaintiff and against the defendant for $9,095.58, as a result of a trial before the judge, sitting without a jury, at the Bergen Circuit, the judge having made findings of fact.

The suit was upon a policy of insurance issued by the defendant company to the plaintiff insuring the plaintiff (among others) against the risks commonly known as liability damage, property damage and collision damage.

The defendant holds this rule to show cause why the verdict entered herein should not be set aside and a new trial granted, reserving to the defendant the exceptions taken at the trial.

The trial court found as a fact that the defendant breached the contract of insurance, and awarded damages in the sum of $9,095.58 in favor of the plaintiff and against the defendant as the natural and probable consequences of the breach of the contract, and we think this finding was correct.

The pleadings disclose that, on December 8th, 1927, a Buick coupe was being driven in the course of the business of the plaintiff corporation in Teaneck, New Jersey, by Linwood E. Clarke, its general manager, and that it collided with a Reo truck owned by one Olson and driven by one Rasmussen, in which another Olsen was a passenger; and that as a result of this accident the United Roofing Company was sued and verdicts were rendered against it, and the plaintiff herein paid these judgments, and in this suit claims reimbursement.

The pleadings further allege that the Buick coupe was totally destroyed in the collision, and the plaintiff claims reimbursement for the value of the car.

The action of the plaintiff herein also includes a claim for reimbursement for legal expenses covering the engagement of attorneys, &c., in the trials of the suits commenced by Olsen and Rasmussen.

There is an allegation in each count of the complaint in the present suit and that the defendant denied liability under the policy issued by it and refused to defend the suits against the plaintiff.

All of the counts predicate the right of recovery on the refusal of the defendant herein to defend the suits by reason of its alleged denial of liability on the policy of insurance.

The defendant in its answer, after making a general denial of the allegations of the complaint, asserts several separate defenses, the first of which seems now to have been abandoned; the second charges that the plaintiff caused a breach of the policy of insurance in that it did not render all possible co-operation within its power to the defendant, and that it voluntarily asssumed liability and interfered with the legal proceedings in the suits brought against it, and that it defended the suits without the consent of the defendant; the third alleges that the plaintiff did not have an insurable interest in the said Buiek automobile in that it did not own the same.

Now, the policy of insurance sued on was issued by the defendant to United Roofing Company, the plaintiff. In its insuring agreement defendant agreed as follows:

“(a) 1. To insure the assured against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death. At‘any time resulting therefrom, to any person or persons, accidentally suffered or alleged to have been suffered while this policy is in force'by reason of the ownership, maintenance or use within the limits of the United States of America (exclusive of Alaska, the Philippines and Hawaiian Islands and other ‘possessions’) or Canada of any automobile described in the declaration.

“2. To defend in the name and on behalf of the assured, any suits, even if groundless, brought against the assured to recover damages on account of such accidents as are covered under this policy.

“3. To pay, irrespective of the limits of liability hereinafter mentioned, all costs taxed against the assured in any legal proceeding defended by the company, all interest accruing after entry of judgment upon such part thereof shall not be in excess of said limits of liability and the expense incurred by the assured for such immediate medical and surgical relief as is imperative at the time of the accident, together with all expenses incurred by the company for investigation, adjustment and defense.”

The policy further provides, in addition to the protection agreed to be afforded to the United Roofing Company as the “named assured,” the following protection for what it terms “additional assureds,” as follows:

“4. Additional Assureds. The insurance provided by this policy is so extended as to be available, in the same manner and under the same provisions as it is available to the named assured, to any person or persons while riding in or legally operating any of the automobiles described in the declaration or to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured.”

It then defines the identity of persons coming within the category of the word “assured” as follows:

“The unqualified term 'Assured’ wherever used in this policy shall include in each instance the named assured and any other person, firm or corporation entitled to insurance under the provisions and conditions of this policy, but the qualified term 'Named Assured’ shall apply only to the assured named and described in Declaration No. 1. Any insurance under this policy shall be applied first to the protection of the Named Assured and the remainder, if any, to the protection of any other assured.”

It will be seen from the excerpts of the policy hereinabove quoted that two distinct classes of persons are protected under the policy, first, the United Roofing Company as the “Named Assured” and secondly the '“Additional Assureds.”

It will be observed that the policy distinguishes throughout, the definite rights and responsibilities of the “named assured” and the “assured.” It is apparent that it was intended that more than one person or corporation be protected by this policy. For example paragraph “A” entitled “Limits,” says as follows: “Regardless of the number of the assureds, &c.” Paragraph “C” says: “The assured shall give immediate written notice,” &e.

At the time of the issuance of the policy the Buick car in question was not covered, but that was added later by endorsement dated July 24th, 1927, and the policy was thereby extended to cover the Buick coupe for the particular risks therein covered.

Defendant contends that the plaintiff is not entitled to maintain a suit for the recovery of the sum awarded as collision damage, because it failed to submit to the arbitration clause contained in the collision endorsement. But we think that the plaintiff was not bound by the arbitration clause in view of the denial of liability on the entire policy as made by the defendant.

The policy was issued by C. S. Fountain & Sons, who were general agents for the defendant, and the trial court properly found they had authority so to do.

The policy in question covered a number of cars, some of which were owned by the United Eoofing Company and some by others. The Buick was owned by Mrs. Clarke, at that time president of the plaintiff company, and this fact was known to the defendant before the issuance of the endorsement with the defendant’s sanction.

On December 8th, 1927, after the issuance of the policy to the plaintiff, Linwood E. Clarke, general manager of plaintiff, was driving the Buick automobile on Cedar lane, Tea-neck, and there accompanied him two of the plaintiff’s workmen whom lie was taking to Harrington Park on company business. The car was at that time—as at the issuance of the policy—owned by Alice Clarke, president of the plaintiff company. While transporting the company’s workmen the collision occurred which resulted in the verdicts in favor of Olsen and Easmussen against the plaintiff.

The accident was, immediately after its happening, reported by plaintiff to the defendant, and the notice of the accident given by defendant abundantly complied with the requirement of the policy concerning such notice.

Shortly after the accident Linwood E. Clarke and Alice Clarke were made defendants in suits brought by the Olsens and the Easmussens as a result of the injuries and damages sustained in the accident of December 8th, 1927, in which the Buick car was involved. The summons and complaint were delivered by Mr. Clarke, the general manager of plaintiff, to the proper representative of the defendant who stated that his company was not interested in the suits against the Clarkes, “because the names of Mr. and Mrs. Clarke were not mentioned in the policy.” He said that defendant was not responsible, and in effect refused to defend the suits, a position which was a repudiation of its obligation under the policy and a breach of the contract, as is made apparent upon an examination of paragraph 4 thereof entitled “Additional Assureds”, since Linwood E. Clarke, the general manager of the plaintiff, was legally operating the Buick with the consent of the United Roofing Company, the plaintiff, on the business of the plaintiff.

The summonses and complaints were then given to Mr. Walter G. Winne, a counselor-at-law, and who was employed to, and who did file answers in such suits. A little later on, the United Roofing Company was sued by the same plaintiffs and the same counsel representing that company wrote defendant a letter calling the company’s attention to the new actions against the United Roofing Company and advising it of the fact that he had filed answers for Mr. and Mrs. .Clarke, and of his expectation to file an answer for the United Roofing Company because “we understand that you have disclaimed liability on the policy.” The evidence tends to show that defendant failed even to acknowledge receipt of the communication until after the time for answering had expired. Meanwhile, on what seems to have been the last day on which an answer could be filed without an extension o£ time, the United Roofing Company filed answers.

Now, the trial judge, after consideration of this and other evidence, found as follows: “The plaintiff fulfilled all of the obligations of the policy of giving notices to the defendant and did not voluntarily assume liability; nor did it fail to give the co-operation required of it by the terms of said policy, but that the defendant by its acts and conduct did fail to observe the obligations imposed upon it by the terms of the policy and caused the plaintiff the defend the actions and to pay the judgments so rendered for which defendant is obligated to repay the plaintiff. The breach of the contract by the defendant caused the damages sued for which are natural and probable consequences of the breach of contract.”

In our judgment that finding is amply supported by the evidence.

Plaintiff proved that the verdicts against it with costs and interest were paid. And we perceive no reason why they should not have been, as they were, included in the verdict.

Defendant calls attention to the fact that the suits on the counter-claims in the Olsen and Rasmussen actions were not pressed at the trial. This has no significance. We fail to see how this bears on the question of the breach of defendant’s contracts. Neither the record nor defendant’s brief indicate how this is material.

We think that recovery of legal expenses was properly allowed.

Plaintiff sought to recover the sum of $1,500 for services rendered in the Olsen and Rasmussen suits. The court awarded $800 as the reasonable value of such services and we think that was not excessive.

We think that recovery for the destruction of the Buick coupe which was owned by Alice Clarke and was destroyed while being operated in the business of the assured was proper. This car was covered for collision damage, and the amount was justified by the policy and proofs.

The rule to show cause will he discharged, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NEWTON KNAUER, PLAINTIFF IN ERROR.
    Argued October 7, 1930
    Decided May 20, 1931.

      Before G-ummere, Chief Justice, and Justices Trextchard and Lloyd.
    Eor the plaintiff in error, Bourgeois & Coulomb.

    Eor the defendant in error, Louis A. Bepetto, prosecutor of the pleas.
   Per Curiam.

The defendant below brings up his conviction on an indictment, and the judgment entered thereon, in the Atlantic Quarter Sessions Court. The ease is here on bills of exception and on specifications of causes for reversal on the entire record of the proceedings had upon the trial under section 136 of the Criminal Procedure act.

The indictment charged that the defendant, on September 18th, 1928, having previously been appointed agent of thirteen persons and corporations therein named, and by them authorized to collect from the United Post Offices Corporation the sum of $8,800, or thereabouts, due from the latter corporation to the several persons and corporations named, and for whom the defendant was to act as agent, and by which appointment defendant was entrusted not only with the collection of such money but the care of the same, for each and every of such persons and corporations as their respective interests therein might appear, and for whom defendant was acting as agent; that defendant did accept his appointment as such agent, and did promise and lagree to forthwith collect such moneys and turn over the same to the law firm of Cole and Cole for distribution to such persons and corporations, as their several interests would appear; and further, in pursuance thereof, defendant did collect from such United Post Offices Corporation, such sum of $8,800, or some other sum, the exact amount being unknown, and while acting as such agent, and having collected such moneys, and being entrusted with the care of the same, did neglect and refuse to deliver the same to the said Cole and Cole, or to any other person, for the benefit, use and division among the several persons and corporations for whom the defendant was acting as agent, but, on the contrary, defendant did fraudulently take and convert such moneys so collected by him as agent for such persons and corporations, to his own use, and not to the use of the persons and corporations for whom he was acting, and who were the rightful owners thereof.

At the trial the evidence tended to show that the defendant was the builder of a certain building in Atlantic City; that he was indebted to the subcontractors (the persons and corporations named in the indictment for whom he acted as agent), upon the completion of the job, for moneys in excess of the amount due from the owner of the building to him; that the subcontractors had filed stop-notices, and in that position defendant was not able to obtain the money; that he negotiated with the owner for considerable time, but the owner refused to make any disbursement until defendant would present a release of liens and receipt in full from each of the subcontractors; that the defendant disclaimed any personal right to the money, and in order to discharge his obligation to the subcontractors, he agreed with Cole ,and Cole, attorneys for the subcontractors, that he would act as their agent and trustee, and would secure the money for them and deposit the same with Cole and Cole to be distributed in proportion to the interest that each subcontractor had in the fund, upon the condition that each of the subcontractors would execute the release of lien and receipt of payment in full; that this was done and the defendant secured the money from the owner, but neglected and refused to comply with the trust he had undertaken to deposit the money with the attorneys.

It further appeared at the trial of the cause that four of the thirteen subcontractors mentioned in the indictment disclaimed that any agency or trust relationship had been created. All of the other subcontractors, however, and Cole and Cole, with whom the final arrangements were made, testified that the defendant had agreed and secured the release of liens and receipts upon the promise that he was acting solely as agent for the purpose of securing the money for them.

The defendant argues that the indictment is bad for duplicity and uncertainty because it charges the defendant with being agent for, and embezzling from thirteen separate and distinct parties.

On the contrary we think that the indictment is not bad in that respect for it charges one offense committed simultaneously against an association or combination of parties in which thirteen separate people had an interest, under the same set of facts. The embezzlement occurred, not by withholding the money from each of the thirteen parties for whom the defendant was acting as agent, but because of the breach of trust when he violated the trust set forth in the indictment, namely, "did accept his appointment as agent aforesaid, and did promise and agree to forthwith collect said moneys and turn over the sum to a certain law firm known as Cole and Cole, with offices in Atlantic City aforesaid, for distribution to said persons and corporations, as their several interests would appear.”

There was no harmful error in the refusal to quash the indictment or the denial of the motion to acquit, since proof of embezzlement of any portion of the sum charged to have been embezzled was sufficient to sustain the conviction. State v. Meeker, 72 N. J. L. 210.

The state was not bound on motion at the outset of the case to make any election as to which one of the charges it intended to press, for the indictment rests upon the embezzlement by the defendant from a common agent of all or any one of the creditors.

The last contention of the defendant is based on the theory that the money in the hands of the owner of the property belonged to the defendant, the builder, and that he could not be charged with embezzling his own money. The facts, however, as we see them, do not support such a theory. The subcontractors by reason of having filed their stop-notices and the acknowledgment that such money was due them, were entitled to the moneys. According to the testimony the defendant admitted that he personally had no interest in the fund. As between the defendant and the creditors there was a relinquishment of any rights that defendant theretofore had in the fund with the same force and effect as if there had been an assignment thereof. Defendant secured the funds as agent and trustee for the subcontractors, and upon the further promise that he would deposit those funds with Cole and Cole acting on behalf of the subcontractors. It was upon that condition and trust that he received the release of liens and receipts in full.

The judgment below will be affirmed.


author: Pee Cubiam.

text:
    ERNEST BODE, PLAINTIFF, v. OTTO BRESSEM AND BOROUGH OF EAST RUTHERFORD, DEFENDANTS.
    Submitted October 18, 1930
    Decided May 20, 1931.
    Before Gummeee, Chief Justice, and Justices Tbestchabd and Lloyd.
    Eor the rule, Breslin & Breslin.

      Contra, McCarter & English (Augustus C. Binder, Jr., of counsel).
   Pee Cubiam.

This case was tried at the Bergen Circuit and resulted in a verdict by the jury in favor of the plaintiff and against defendant Otto Bressem in the sum of $9,500. There was a nonsuit as to East Rutherford. Defendant Bressem has this rule to show cause why plaintiff’s verdict should not be set aside.

Defendant says the verdict is against the weight of the evidence. We cannot say that it is. Plaintiff’s case discloses his injury in a collision between the motorcycle which he was riding and a fire truck driven by defendant on his way to a firemen’s convention. The accident occurred at the intersection of Paterson and Boiling Springs avenues in East Rutherford.

The proofs reasonably tended to show that plaintiff was riding his motorcycle in a westerly direction on Paterson avenue and on his righthand side, and as he had almost crossed the intersection of Boiling Springs avenue, the defendant attempted to make' a left turn from Paterson avenue into Boiling Springs avenue, swinging to the westerly part of the intersection without any warning, hitting plaintiff and his motorcycle, smashing the latter and injuring plaintiff severely.

We think it was competent for the jury to find the defendant driver negligent and that the plaintiff was without fault. If the plaintiff’s witnesses are to be believed, the verdict certainly cannot well be said to be against the weight of the evidence. Plaintiff’s witnesses seem to have been for the most part disinterested, and we see no reason why they should not be believed.

Defendant and his witnesses contradict in large part the plaintiff’s ease, but it was a fair jury question, and of course, in such situation the trial judge rightly denied the motion to nonsuit and to direct a verdict for the defendant.

Defendant says that the verdict is excessive. We think it was not. Plaintiff was a young man, twenty-three years old, with good earning power as a carpenter. His future earning power is seriously impaired. His necessary outlay caused by the injury was heavy.

We have examined the complaints respecting the admission and rejection of testimony and find no fault there. We have examined the refusals of requests to charge and also the charge itself in the light of the criticisms, and find no error.

The rule to show cause will be discharged, with costs.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, EX REL. LEWIS N. BRADFORD, RELATOR, v. WILLIAM V. COUGHLIN, DEFENDANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the relator, Nathaniel A. Jacoby (Emil Stremlau, on the brief).
    For the defendant, Francis A. Monaghan.

   Pee Cueiam.

The relator, Lewis Y. Bradford, claiming to be entitled to the office of district clerk of the board of education of the borough of Carteret, charges that William Y. Coughlin, the present incumbent, unlawfully excludes him from the possession thereof. He proceeds by information in the nature of a quo warranto to test the right of office. The information, plea and reply raise an issue that centers around the provisions of. and the construction to be given to, section 91 of the act entitled “An act to establish a thorough and efficient system of free public schools, and to provide for the maintenance, support and management thereof.” 4 Comp. Stat., p. 4724. The form of section 91, extant at the time of the printing of the Compiled Statutes, is to be “found at page 4754.

Defendant Coughlin was appointed district clerk on or about March 27th, 1928, for a period of three years to commence July 1st, 1928. A later and different board of education by a resolution, passed April 7th, 1930, declared the office of district clerk vacant, effective as of June 30th, 1930, and elected the relator to fill the office beginning July 1st, 1930. Those dates passed without surrender of the office by the defendant. On August 20th, 1930, the board of education passed another resolution reciting the earlier events and forthwith removing the defendant from office. The board then again elected the relator to the position. The defendant still refused to surrender the office or the records thereof and insisted that inasmuch as he was elected for a term of three years he was not removable except for cause until the expiration thereof. At the time of Coughlin’s election, March 27th, 1928, the effective reading of section 91 was the amendment designated as chapter 128 (Pamph. L. 1927, p. 241), approved March 22d, 1927. It authorized the board of education to appoint a district clerk and to fix his term of employment, and further provided that no district clerk should be dismissed except for inefficiency, bad behavior or other just cause, and then only after a written charge of the cause or causes should have been preferred against him and an examination held thereon. Chapter 69 (Pamph. L. 1928), approved March 19th, 1928, by its terms purported to be an amended form of section 91, but this statute never was actually in force as it lacked an effective date and before the time fixed by the constitution as the effective date for legislation so situated had arrived, the legislature had passed the act next referred to.

Chapter 164 (Pamph. L. 1928) is entitled “An act to amend an act entitled ‘An act to amend an act entitled “An act to amend an act entitled ‘An act to establish a thorough and efficient system of free public schools, and to provide for the maintenance, support and management thereof,’ approved October nineteenth, one thousand nine hundred and three,” which amendment was approved May seventh, one thousand nine hundred and seven,’ which amendment was itself approved March sixteenth, nineteen hundred and nine.” This act reads in part: “Amend section ninety-one of the act to which this act is an amendment so that it shall read as follows:” Then follow full provisions of section 91, within which is the following: “Every board of education organized under the provisions of this article shall, by the majority vote of all the members of such board, appoint a district clerk, who may be elected from among said members, and shall fix his compensation and term of employment. Said district clerk, as such, may be removed by a majority vote of all the members of said board. * * *” The act was approved April 3d, 1928, and contained this further provision: “This act shall take effect immediately.”

We find that chapter 164 (Pamph. L. 1928) constituted the complete and authentic content of section 91 of the School law as of the times in 1930 when the board of education passed its resolutions removing the defendant from office. Counsel for defendant argues that because there is no specific repealer of the earlier statutory amendments of section 91, and particularly chapter 69 (Pamph. L. 1928), certain parts of those enactments 'remained in force. We find to the contrary. Two amendments of the same section, each of which purports to give the entire section as amended, as in this case, cannot be in force'at the same time. Vander Veer v. Herbert, City Collector, et al., 76 N. J. L. 173.

By chapter 164 (Pamph. L. 1928) the board of education had the power of removal. It exercised that power against the defendant. The relator is entitled to judgment of ouster, with costs.


author: Pee Ctjeiam.

text:
    THEODORE WEATHERS, PLAINTIFF-RESPONDENT, v. JACOB FRIEDLAND AND MANUEL FRIEDLAND, DEFENDANTS-APPELLANTS.
    Submitted October term, 1930
    Decided May 25, 1931.

      Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, Joseph Bothenberg (Samuel I. Kessler, on the brief).
    Eor the defendants-appellants, Carey & Lane.

   Pee Ctjeiam.

Plaintiff sued for the loss of a dog killed by an automobile that was owned by defendant Jacob Eriedland and driven by the latter’s son, Manuel Eriedland. Judgment went for the plaintiff in the amount of $300. Defendants appeal. The reasons are grounded in the court’s refusal to direct a verdict in favor of the defendants.

The evidence discloses that plaintiff, on returning from an evening walk, during which he had had the dog in leash, and on reaching a point opposite his home, unleashed the dog, whereupon the animal darted into the roadway and, three feet from the curb, was run over and killed by the left front wheel of defendants’ car. The defendant Manuel Eriedland was driving on the left side of the road preparatory to turning into his drive seventy-five feet distant. The car carried lights described as “cowl lights.”

We are unable to find negligence on the part of the driver of the car. It is said that he was on the “wrong” side of the road. But whether the left side is the wrong side must naturally depend upon circumstances. We assume that the dog was not so highly trained as to be governed in its direction by the same regulations that control the reciprocal movements of traffic. Conditions permitting, the driver had the right to make such use of the roadway as was necessary to enable him to circle into his driveway. He could scarcely be expected to anticipate that, without warning, a dog would leap from the curb through the darkness into his path. The fact that the plaintiff had kept the dog in leash until that particular spot had been reached gives rise to the presumption that the animal was expected, when released, to do precisely what it did do, namely, bound homeward across the street. Plaintiff was responsible for that movement, and it was that that caused the mishap. We think that if there was negligence at all it was on the part of plaintiff; and that such negligence was contributory to, if not directly responsible for, the injury.

Our conclusion is that the refusal to direct a verdict was error.

Judgment below is reversed, with cQsts.


author: Pbb Ctjkiam.

text:
    MICHAEL BALINT, PLAINTIFF-APPELANT, v. MORRIS STEIN, ANNA STRAKA AND FRANK STRAKA, DEFENDANTS-RESPONDENTS.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Dongbs.
    Eor the plaintiff-appellant, Biro <& Strell.

      For the defendant-respondent Morris Stein, Collins & Corbin (Edward A. Marlcley and James B. Emory, on the brief).
    Eor the defendants-respondents Anna Straka and Frank Straka, Green & Green (David Green and Harold Farlcas, on the brief).
   Pbb Ctjkiam.

At the trial of the action, and before the taking of testimony, defendants moved to dismiss the action on the ground that it was not commenced and sued upon within the time allowed by the 'statute of limitations. That motion was granted. Exception was taken and the appeal is from the judgment entered on the ruling. Plaintiff obtained a rule to show cause why a new trial should not be granted and on the return of the rule argued the precise reasons that are now argued on the appeal. The court, after hearing argument, dismissed the rule.

' The essence of the matter then and now under controversy was and is that a District Court summons is effective for the purpose of commencing an action as of the date on which it issues “out of the office of the attorney” and not when it is tested by the clerk under the seal of the court. It is true, indeed, that the rule provided that the granting thereof should not be a waiver of any grounds of appeal existing in favor of the plaintiff, but the rule issued for the specific purpose of considering the point in dispute. We consider that, under the reasoning of our cases, appellant may not present to this court for review on appeal the same questions that were fully presented to, and considered and decided by, the trial court on a rule to show cause even though the exceptions had been reserved. Faragasso v. Introcaso et al., 98 N. J. L. 583.

The appeal will be dismissed.


author: Pek Cukiam.

text:
    CARRIE C. JACOBS AND ROLAND JACOBS, HER HUSBAND, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, AND ERNEST SCHWALM, DEFENDANTS.
    Submitted October 18, 1930
    Decided May 25, 1931.

      Before Gummeke, Ci-iiee Justice, and Justices Tke?vchaed and Lloyd.
    For the rule, Henry H. Fryling (James J. Higgins•, of counsel).
    Contra, George W. Gregory (Robert 8. Hartgrove> of counsel).
   Pek Cukiam.

This case was tried at the Monmouth Circuit and resulted in a verdict in favor of Mrs. Jacobs for If,000, and a verdict in favor of her husband for $1,000, against the defendant Public Service Co-ordinated Transport, and a verdict of no cause of action as to the co-defendant.

The defendant Public Service Co-ordinated Transport was granted a rule to show cause why the verdicts should not be set aside.

It is said that the verdicts are excessive as to amounts, and are contrary to the wnight of the evidence. We think not.

Mrs. Jacobs, while a passenger in a bus of the defendant in Newark, was thrown about on the seat when a collision occurred between the bus and another automobile owned by the other defendant, and her back and side were injured. She was not rendered unconscious, but alighted from the bus and went to her brother’s home in Newark, and then by train to her own home in Freehold. There she went that evening to the office of Dr. Carey, returned home and went to bed where she remained for three weeks and was there treated by Dr. Carey, and thereafter for two months at his office. He found a bruised condition of the left hip which remained for about five weeks. Her mother testified that she saw two bruised spots about the size of an egg on plaintiff’s back. Her husband testified that she had bruised spots on the side of her back and she complained of her back and sides. She was nervous and had crying spells.

The accident occurred about noon on January 5th, 1928. The trial was two years and five months afterward. Dr. Carey at first had diagnosed her condition as a sprained back. After Dr. Carey’s treatment was finished she went to an osteopath and was treated by him over a period of two months for pain in her hack, nervousness and loss of sleep. At the time of the accident she was thirty years old; she was employed as a stenographer at a salary of $25 a week. She testified that she was unable to resume her work for a period of about five months; that she then resumed her work intermittently for about three months when she had to stop, being disabled by weakness of her legs, difficulty in walking, and bladder trouble. She seems to have grown worse towards the end of the year 1928 and was obliged to resort to the use of crutches for a time, and then to the use of two canes, and was then attended by Dr. Darden, and thereafter by other physicians. At the time of the trial she used one cane. At the time of the trial there was a dragging of her right foot, a wasting of the muscles of the leg, and a tendency to stumble and fall, which tendency had been present over a period of more than six months. The physicians testified that there was an abnormal condition of the spine and a lump in front of the sacro-lumbar vertebra, which condition, they testified, might have resulted from an injury such as she had received and produced the paralytic condition from which she suffered. They testified in effect that the indications were that the condition was permanent.

If this testimony is to be believed, together with other testimony as to the consequential damages of the husband (which need not be recited here), it seems clear that neither of the verdicts can be said to be excessive.

The defendant says that the testimony is not to be believed in its entirety; or, stated in another way, that the testimony of the wife and her family, and of her doctor, which seems to clearly justify these verdicts, is against the weight of the evidence, when considered in the light of the defendant’s evidence. We cannot say that it is.

The defendant also complains that the court refused to charge this request: “There can be no recovery for any in'jury to the legs or feet, because there is no allegation in the complaint that the plaintiff received any such injuries.” The complaint charged that by reason of the accident she was severely and permanently injured about her back, hip and head, and sustained severe hurts, cuts, wounds and bruises about her body and suffered great pain, and had suffered great nervous shock, and had been unable to attend to her regular duties of employment. We think that the complaint is broad enough to justify the jury in taking into account the injuries to the legs and feet if, as stated by the trial judge in his charge, they were the proximate result of the accident.

It was next said that the court erred in refusing to charge: “There can be no recovery for any effects which now exist which is the result of child birth.” We think that this request was charged in effect in language which seems to be sufficient and which we think did not mislead the jury.

We think that the foregoing observations apply to the refusal of other very similar requests to charge.

The rule to show cause will be discharged, with costs.


text:
    ANTHONY FEDUNIEWICZ, PLAINTIFF-RESPONDENT, v. JULIUS GROPP, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, Greenberg, Brenner & Weiiz •(Emanuel Weiiz, on the brief).
    Eor the defendant-appellant, Collins & Corbin (Howard F. McIntyre, on the brief).
   Pee Cueiam.

On January 5th, 1930, plaintiff bought a cream coffee cake from defendant who operated a small retail bakery business. After finishing the breakfast meal at which the cake was eaten, plaintiff and the members of his family became ill. He charged that the cake was poisoned and sued for damages accruing from the injuries to him personally. The jury rendered a verdict in his favor for $150. Defendant appeals and specifies as error that the trial judge refused to nonsuit and to direct a verdict and also charged unlawfully in certain respects.

Defendant made the coffee cake in his own bakery. A deputy health officer of the Jersey City board of health testified that on a complaint following the incident he made an investigation of defendant’s premises and found thereon a bellows containing sodium fluoride. It appeared further that this powder was a roach poison and that two months or more before plaintiff’s mishap defendant had sprayed some of it in the “steam box” or warming oven as a remedy against roaches. A medical witness who had not treated or observed the plaintiff testified, as an expert, in answer to hypothetical questions that the sjunptoms experienced by the plaintiff, as related at the trial, could have come from sodium fiuoride poisoning; he also testified that they might have been produced by a thousand other causes. The breakfast meal had embraced coffee as to some members of the family and milk as to the others; and those who drank coffee used milk with it. There is no evidence of the purity of the milk other than the general statement that all milk dealers of Jersey City are subject to oversight by the municipal authorities. Unused portions of the cake were taken from plaintiff’s household by the health officer and, on analysis by the city chemist, were found to be free of sodium fluoride. It is not shown that the cake was at any time in the “steam box.” A half dozen other families who had purchased cake from the same-batch of cooking were represented by witnesses who testified that there had been no illness therefrom.

We find that there was not enough in the evidence to take the case to the jury, and that the court erred in refusing to .grant a nonsuit and in refusing to direct a verdict for the defendant. Our conclusions in these respects make it unnecessary to consider the remaining points.

The judgment below is reversed, with costs.


author: Pee Ctjbiam.

text:
    JOSEPH ZANZONICA, PLAINTIFF-RESPONDENT, v. MAMIE MILLER, DEFENDANT-APPELLANT, AND SIGISMONDO BALBISSARRO, DEFENDANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, Anthony A. Calandra >(Thomas F. Guthrie, on the brief).
    Eor the defendant-appellant, Frank P. Padalino (Lintott, Kahrs & Young, on the brief).
   Pee Ctjbiam.

This is an appeal from a judgment entered in the Essex 'County Circuit Court in a mechanics’ lien action. The plaintiff, as contractor, sued the defendants as owners and builders. The notice of appeal states four grounds—first, that the judgment was unlawfully entered because there had been a lack of the diligent prosecution required by the statute (section 18 of the Mechanics’ Lien act, 3 Comp. Stat.j p. 3305); second, that no notice of the filing of the report was given to-the defendant pursuant to Rule 100 of this court; third,, that no notice of confirmation of the referee’s report was-given; fourth, that the lien claim is for less than the amount of the judgment entered.

There were no exceptions taken.

As to the first point, the statute is not automatic. Had appellant desired to raise the question of lack of diligence-she should have done so by appropriate procedure resulting in a court ruling, followed by exception or equivalent noted, objection. Nothing of the sort is presented and we find that-the point is not properly before us.

The second point lacks merit. Defendant’s attorney had full knowledge. This is clear from his affidavit and from his-correspondence, printed in the state of the case.

The third point seems not to be grounded in fact. Not: only was the attorney of the defendant notified in advance-of motion to confirm the referee’s report but he was, according to the recitals in the order made by Judge Mountain on October 19th, 1929, physically in court, appearing for the-defendant, on the occasion of the confirming of the report.

The summons in the action was served personally on both defendants. The ad damnum, clause of the complaint names; an amount greater than that of the judgment, and the complaint alleges the debt to be due from the defendants individually as well as a lien on the land. The judgment is for $1,100. Appellant contends that the lien claim was by its terms limited to $925. The lien claim is not printed in the case but respondent’s brief concedes that the amount thereof was $925. Judgment specially against lands is under the statute and the statutory method leading thereto must be-followed. But the judgment before us, as printed in the-state of ca'se, is a judgment generally against the defendants and is not special against the lands.

We find no cause for reversal. The judgment below will be affirmed, with costs.


text:
    THE CITY OF NEWARK, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT AND SCOTTISH RITE COMPANY, RESPONDENTS.
    Argued May 6, 1931
    Decided May 25, 1931.
    Before Justices Teenchabd, Daly and Donges.
    Eor the prosecutor, Frank A. Boettner (Louis A. Fast, of counsel).
    Eor the respondents, Henry Schlittenhart.

   Pee Gubiam.

Application is made by the city of Newark for a certiorari to review the action of the state board of taxes and assessment in affirming the cancellation by the Essex county board of taxation, of an assessment levied for the year 1929 on real estate owned by Scottish Rite Company.

In the proofs submitted on behalf of the city, as well as by the proofs submitted by respondents, it conclusively appears that the Scottish Rite (owner) comes squarely within the provisions of the statute (Pamph. L. 1927, p. 790) exempting “all buildings actually and exclusively used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, or for one or more of such purposes, * * The act further provides that the provisions shall apply only when the building is owned by the association, corporation or institution, authorized to carry out such purposes.

All of the requirements to afford the owner of the property herein involved the benefit of the exemption clearly appear from the proofs, and none of the facts are in dispute. Upon the city’s showing of the existing facts, the finding of the Essex county board of taxation and of the state board of taxes and assessment that the assessment must be set aside is clearly correct. City of Trenton v. Trenton Masonic Temple Association, 8 N. J. Mis. R. 778.

The application for a writ of certiorari is denied.


text:
    PHILIP J. SCHOTLAND AND HELEN JEDELL, PLAINTIFFS-RESPONDENTS, v. ALBERT HIRSCH, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs-respondents, Philip J. Schotland.

    For the defendant-appellant, Preclcer & Preclcer (Michael S. Preclcer, on the brief).
   Pee Cueiam.

Plaintiffs sued defendant for rent and obtained a directed verdict for $390 for six months’ rent, November 1st, 1929, to April 30th, 1930, inclusive, at $65 per month, under a written lease for a term beginning October 1st, 1929, and ending November 1st, 1930. The lease provided that the defendant, as tenant, should pay the plaintiffs, as landlords, “the annual rental or sum of $780, payable in equal monthly payments of $65 each in advance on the first business day of each and every month during the term” of the lease. E. Sonnabend was plaintiffs’ agent for the collection of rents during and prior to the month of September, 1929, and until sometime in the month of October, 1929, when he was discharged. On or about September 12th, 1929, the defendant gave a check to E. Sonnabend, drawn to the order of the latter, individually, in the amount of $455 with the purpose of thereby paying the rent for the months of October, November and December, 1929, and January, February, March and April, 1930. Sonnabend neither reported nor accounted for the collection to the plaintiffs. Defendant received notice during the month of October, 1929, that Sonnabend had been discharged as agent. The trial judge held that as Sonnabend was the authorized agent up to and including the date of the accrual of the October rent the plaintiffs were chargeable with so much of the payment to him as represented the rent for that month, but that the agency thereafter, with notice to the defendant, having ceased, the balance of the payment to Sonnabend was not chargeable as a payment to the plaintiffs.

Appellant specified four determinations with which he was dissatisfied. The first and second are that the court refused to receive in evidence a check paid on October 30th, 1928, to Feist & Feist, the then agents for the property, and that the court excluded a question intended to prove that payment. The argument is that the excluded testimony would tend to prove a similar transaction indicating authority on the part of the agent to receive a lump payment for several months’ rent in advance, but (1) the agent with respect to whom the evidence was offered is not the agent in question; (2) the lease or other agreement under which the transaction occurred was neither proved nor offered; and (3) the payment to Sonnabend was under a new, written agreement between plaintiffs and defendant under which no earlier payments had been made and by the terms of which the rent was payable in monthly installments on the first business day of each and every month. For these several reasons we consider that the exhibit and the testimony were properly excluded.

The third specification is that the court erred in declining to receive the testimony of one Louis Nass. Assuming, but not deciding, that the situation as developed was equivalent to the asking of a question, the overruling of the same and the noting of an exception thereon, we merely observe that the subject-matter was another phase of the dealings with Feist & Feist and was irrelevant for the reasons noted above.

The fourth specification is that the District Court erred in directing a verdict in favor of the plaintiffs. We think il unnecessary to say more than that there were no salient facts in dispute. The defendant was bound by his written contract to pay certain moneys which he had not paid to anyone authorized to receive them. The only questions in dispute were legal ones. The award hung only on the determination of these questions. The court followed the correct procedure.

Judgment below is affirmed, with costs.


author: Pee Ctjkiam.

text:
    ALOIS SCHAAF, PLAINTIFF-RESPONDENT, v. ALBERT EDEL, DEFENDANT-PROSECUTOR.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, Athol G. Bees.

    For the defendant-prosecutor, Fred Scherer.

   Pee Ctjkiam.

This case arises on the sale of a bakery by the defendant to the plaintiff. The action is to recover for false representations alleged to have been made by the seller. Amongst the representations alleged to have been made were that the income of the bakery was from $575 to $600 per week and that the bakery was the only bakery business in the city of Bridgeton. We think that the evidence well sustains the proposition that these representations were actually made; that they were not true; that the vendor knew they were not true and made them with the purpose that they be relied upon, and that the vendee did in fact rely upon them.

Appellant raises six points.

Point one is that the court erred in submitting the case to the jury in that the plaintiff failed to prove affirmatively the existence of scienter. We find no error therein.

The second point is that the plaintiff failed to prove affirm, •atively the existence of all the elements necessary to make out a case. We think there was enough to justify sending the •case to the jury.

Point three is that the court’s charge was so framed that it enabled the plaintiff to recover otherwise than by a preponderance of proof. Counsel did not call this or any other defect in the charge to the attention of the court.

Points four, five and six, in our opinion, have no substance..

The rule is discharged, with costs.


text:
    LUCY B. KEYES AND JAMES E. KEYES, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. JESSE KIMMEL, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs-respondents, Spindel & Berr.

    For the defendant-appellant, Kimmel & Kimmel.

   Pek Cukiam.

Defendant appeals from a judgment of $250 rendered against him in the Second District Court of Paterson. On an exchange of properties between the parties an agreement in writing was made by and between the defendant as party of the first part and the plaintiffs as party of the second part, wherein it was provided, with respect to a first mortgage of' $12,000 then on the premises conveyed out by the defendant,, as follows:

“It is agreed, however, that in the event that said first mortgage aforementioned is called in and the full amount of the principal demanded by the mortgagees at any time prior to the expiration of three years from the date hereof, then and in such event the party of the first part does hereby agree to secure and place a new first mortgage on the premises, not less than $12,000, to take place of the first mortgage aforementioned and agrees to pay all expenses for acquiring the same and in connection therewith. It being, however, understood that in the event such substitution of first mortgage shall become necessary, that the party of the second part shall and will upon said substitution taking place, pay over to the party of the first part the sum of $150 in cash and nothing more.”

Subsequently the holder of the mortgage, after the due date but before the expiration of the three year period above mentioned, demanded payment. Due notice was served upon the defendant requiring him to comply with his contractual obligation. He failed to comply and because of that failure the plaintiffs, at a cost of $400, succeeded in procuring a continuation of the existing mortgage. Their suit is to recover that sum as damages for defendant’s default. The verdict of $250 represents the disbursement of $400 less $150 which, under the contract, would have become due the defendant had he performed the required service.

Defendant’s first point on the appeal is that the court below erred in refusing to direct a verdict for the defendant. Thereunder he argues that because Lucy B. Keyes did not file a set-off or counter-claim in another District Court action that was brought against her by the defendant and that was tried October 2oth, 1929, she is barred by sections 60 and 61 of the District Court act (section 60 as amended b}' chapter 271, Pamph. L. 1927, p. 499, and section 61 as .amended by chapter 132, Pamph. L. 1922, p. 231) from prosecuting the present action. It is not clear that the defendant’s breach was complete or that the damage therefrom had been suffered at the time of the first action. That action, moreover, was by the defendant against Lucy B. Keyes alone. The present action, and the right upon which it proceeds, is by and in Lucy B. Keyes and James E. Keyes. Joint and separate debts cannot be set off against each other. Reveruzzi v. Caruso, 86 N. J. L. 556. It is further contended that the $400' charge was unreasonable; but the disbursement was actually made and we do not consider that the refusal to direct a verdict was erroneous on this point. The final contention under this heading is that no breach of contractual obligation was shown. The duty of the defendant arose, under the wording, of the contract, “in the event that the first mortgage aforementioned is called in and the full amount of the principal demanded.” Webster’s New International Dictionary defines the word “call” in this use, to be “to demand payment of, especially by formal notice; as, to call a bond.” We think that the demand for payment was sufficiently in the proof to make the question one of fact and not of law. We find no error in the refusal to direct a verdict.

It is unnecessary to review the remaining points further than they are met by the foregoing observations.

Judgment below is affirmed, with costs.


author: Pee Curiam.

text:
    SICKLEY BROTHERS, A CORPORATION, PLAINTIFF-RESPONDENT, v. MICHEL & MOORE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.

      Eor the plaintiff-respondent, Biicer & Biker.

    Eor the defendant-appellant,, Jacob JE. Max.

   Pee Curiam.

Defendant appeals from a judgment against it in the sum of $500 and costs. The action was on a book account for fuel oil alleged to have been sold and delivered by the plaintiff to the defendant. There is evidence from which the following facts could be found: The defendant, Michel Moore Company, a corporation, was the owner’s agent in charge of a certain building; defendant held out G-ilberton A. Wharton of its office as having complete charge and authority in the management of the business and directed one Schipper, superintendent of the building, to take up with Mr. Wharton any matters regarding the building; Schipper under authority from Wharton, 'ordered fuel oil from the plaintiff for use in the building and, without disclosing the name of the owner, ordered the oil charged to the defendant; plaintiff accordingly, without knowing the name of the owner, delivered the oil at the building, charged the items to and forwarded the bills to the defendant and received from defendant two checks, one for $193.62 and another for $284.55, in part payment thereof. The judgment is slightly less than the amount of the bill after deducting the payments thus made and certain rent credits.

Appellant argues, first, that an agent is not liable for goods sold to his principal. However forceful this contention might be in its proper place, it has no application where the goods were actually sold to a person who happens to be an agent.

The second point is that there is a strong presumption that credit is extended to the principal along in dealings carried on with an agent. Nevertheless, an agent who fails to disclose the identity of his principal may be personally liable on his contract. Yates v. Repetto, 65 N. J. L. 294.

The third point is not, in our opinion, pertinent on the assumption of a state of facts such as we have outlined above.

The judgment is affirmed, with costs.


author: Pbk Curiam.

text:
    MEYER PEPPER, TRADING AS PEPPER’S, PLAINTIFF-RESPONDENT, v. SAMUEL GROSSMAN AND HERMAN FELDMAN, TRADING AS UNITED AWNING AND SHADE COMPANY, DEFENDANTS-APPELLANTS.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, Samuel J. Rich.

    Eor the defendants-appellants, Allan Krieger.

   Pbk Curiam.

Defendant sold plaintiff an awning for $27.50. On the paper called “contract” was the following: “All orders subject to approval of office. Awnings remain our property until paid in full. A deposit required on all work. Our terms are strictly cash—when awnings are completed and put up pay man who delivers them.” The awning was not fully paid for. In the absence of the plaintiff, defendant sent and removed the awning. Plaintiff sued, on a trespass, for alleged damages, including damage to furs from being exposed to the sun. Verdict went for the plaintiff in the amount of $230, and defendants appeal. A reading of the evidence convinces us that it does not sustain the verdict.

Judgment below is reversed, with costs.


text:
    HERMAN P. BLACK ET AL., PLAINTIFFS-APPELLANTS, v. LAURA WARNER, DEFENDANT-RESPONDENT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs-appellants, Budd M. Bigg.

   Pee Cueiam.

The suit was instituted by the plaintiffs to recover rent alleged to be due under a tenancy between the plaintiffs as landlord and the defendant as tenant. The defendant answered and counter-claimed. The jury brought in a verdict for the defendant in the sum of $141.78, and the plaintiffs appeal from the judgment entered thereon.

The grounds of appeal set out four alleged errors. The first of these is that “testimony of breach o£ covenant and damages therefor, and for work and labor by defendant was admitted into evidence.” In order to review trial errors, the grounds of appeal must set out the judicial action complained of. The mere statement of a proposition of law or of fact is of no value as a ground of appeal. Grossman v. Lincoln Trust Co., 146 Atl. Rep. 376; 7 N. J. Adv. R. 743; Abbe v. Erie Railroad Co., 97 N. J. L. 212.

The second ground of appeal relates to the admission of a lease into evidence. This question, however, is not argued in the brief and is apparently abandoned.

The third ground is that “testimony was admitted into evidence of defense not stated in the answer, nor in the specification of defenses, and that testimony was admitted to show defendant was not a tenant for a part of the period for which rent was claimed in the complaint.” This is an inadequate specification of error. The rule stated above with respect to the first ground of appeal applies here also.

The fourth ground of appeal alleges error in the court’s charge. This question is not presented in the brief and it seems that this also is abandoned.

The judgment below is affirmed.


text:
    STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GERTRUDE M. NOLAN, DEFENDANT-PROSECUTOR.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Dorges.
    For the plaintiff-respondent, William A. Stevens, attorney-general, George T. Vickers and Walter H. Bacon, Jr.

    For the defendant-prosecutor, Andrew E. Nolan.

   Per Curiam.

This proceeding is entitled “on certiorari.” There is no state of the case except that certain matters, including a “stipulation of facts,” are incorporated into the prosecutor’s brief. The writ of certiorari, which is said to have been allowed, is not before us, nor is there any return thereto. The record is attenuated to the point that we are not disposed to treat the presentation as more than a motion to dismiss the writ; and that motion we deny, without costs.


author: Peb Curiam.

text:
    ANNA WENINGER AND JOHN WENINGER, PLAINTIFFS, v. BERNARD VOGEL, DEFENDANT.
    Submitted October 18, 1930
    Decided May 25, 1931.
    Before Gummere, Chief Justice, and Justices Trenchabd and Lloyd.
    Eor the rule, Aaron L. Simon.

    Contra, Schneider & Schneider.

   Peb Curiam.

This is plaintiffs’ rule to show cause 'why the verdict in favor of plaintiff Anna Weninger for $1,000, and the verdict in favor of the husband for $300 should not be set aside as being inadequate, and a new trial granted as to damages only.

It appears that plaintiff wife and her husband were crossing Lexington avenue in the city of Passaic, at the corner of Knapp avenue, at a crosswalk. The testimony reasonably tended to show that the only car visible when they started to cross was that of the defendant, which was then two blocks away, and that when Anna looked again from the middle of the street, it was one block away. The husband, John, dropped his pipe in the center of the street and turned back to pick it up, and Anna, his wife, continued to cross, and the testimony was that, when within one step of the curb, she was struck by the mudguard of defendant’s automobile, which was going “very fast” and which, after striking her, continued across the sidewalk and up on the lawn. There was testimony that no signal or warning was given of the approach of defendant’s car. There was testimony as to the admission of the defendant that he saw Anna a block and a half away, and on the trial he admitted that there was nothing to prevent his seeing her.

The testimony reasonably shows that Anna sustained a fracture of the skull and rupture of the middle ear, causing deafness of the left ear, also affecting the right ear. This condition, the evidence tended to show, was becoming worse rather than better at the time of the trial. The plaintiff Anna was sixty years of age. She also sustained severe bruises on her forehead and shoulder which were still evident five weeks after the accident when Dr. Kennedy, the physician called by the defendant, examined her. She was confined in the hospital for twelve days and to her bed for nine weeks.

We think it quite clear that both verdicts in respect to damages were inadequate, as appears by the evidence above mentioned and other evidence which need not be recited.

A reading of the testimony plainly shows that so far as liability was concerned, verdicts in favor of the plaintiffs were clearly and entirely justified.

The rule to show cause will be made absolute and a new trial granted as to damages only.


text:
    LESTER TILTON, PLAINTIFF-RESPONDENT, v. SAMUEL McBRIDE, DEFENDANT-PROSECUTOR.
    Submitted October term, 1930
    Decided May 25, 1931.

      Before Justices Case, Daly and Doítcíes.
    Eor the plaintiff-respondent, Geran, Matlach & Lautman {Solomon Lautman, on the brief).
    Eor the defendant-prosecutor, Durand, Ivins & Carton {James D. Carton, on the brief).
   Pee Ctjeiam.

The action was for malicious prosecution and false imprisonment. It resulted in a verdict for the plaintiff against the defendant for $2,000 compensatory damages and $1,000 penal damages. The foundation of the suit was an arrest of the plaintiff on the complaint of the defendant for the theft of the latter’s automobile. Defendant was a doctor and resided with plaintiff’s sister. The automobile had been left in the care of the sister, Mrs. Thompson. There is evidence from Tilton that Mrs. Thompson gave him the car. The occasion of his arrest was as he was going to the court house under subpoena to testify in a case that affected the sister.

The appellant raises numerous points. The first is that the verdict is against the weight of the evidence and the second is that the verdict is excessive. We find affirmatively in both respects. The evidence is persuasive that the plaintiff knew that the car, when he took it, was the property of the defendant. When plaintiff was arrested at the defendant’s instance, he was detained in one of the rooms of the court house for an hour or two and then released. His testimony of loss resulting from the incident lacks both detail and substantiation. Eor these reasons we conclude that the rule should be made absolute and a new trial granted. In view of this finding the remaining points set up and argued need' not be considered.


text:
    CORNELIA DeDREW AND ANTHONY DeDREW, HER HUSBAND, PLAINTIFFS, v. NICHOLAS D’ADAMO, DEFENDANT.
    Submitted October 18, 1930
    Decided May 25, 1931.
    Before G-ummere, Chiee Justice, and Justices Trenchard and Lloyd.
    Eor the rule, Anthony B. Finelli.

    Contra, John 8. Baker (Bichard J. Baker, of counsel).
   Per Curiam.

This is defendant’s rule to show cause why plaintiffs’ verdicts should not be set aside.

The defendant first says that the verdicts are excessive. The verdict for plaintiff Cornelia was for $4,000. She was about forty years of age and prior to the accident enjoyed good health. The automobile in which she was riding; whs struck with such terrific force by the automobile owned and operated by the defendant that she was thrown clear of the car and onto the pavement. She was rendered unconscious. When she was picked up from the street and taken to the hospital she was in great pain and severely injured in various parts of the body. She was confined to the hospital for two weeks, treated by the physician twice daily, and afterwards from time to time at her home. At the time of the trial, six months later, she was still suffering more or less from her injuries, some of which were more or less permanent, and was unable to attend to her usual duties as a housewife. We cannot say that her verdict was excessive.

As to the husband, he had a verdict'of $2,250 for loss of services, &c., medical expenses and damage to his automobile. It is sufficient to say that this -verdict w,as sustained by the proofs and is not excessive.

Lastly, it is said that the trial judge erred in refusing a request to charge submitted by the defendant.

Our examination of the charge, and of the evidence, results in the conclusion that the subject-matter of the request was covered, in substance and effect, by the charge as delivered in so far as it was justified by the evidence.

The rule to show cause will be discharged, with costs.


text:
    JOHN E. KELLY AND LUDWIG DINGER, PLAINTIFFS, v. GEORGE RHODES AND JOSEPH MOSER, JOINTLY OR IN THE ALTERNATIVE, DEFENDANTS.
    Submitted October 18, 1930
    Decided May 25, 1931.
    Before Guara eke, Chief Justice, and Justices Tkenchakd and Lloyd.
    Eor the rule, Kellogg & Chance.

      Contra, Peter Cohn.

   Pee Ctjeiam.

This is a rule to show cause obtained by the defendant, George Rhodes, why a verdict at the Passaic Circuit should not be set aside, the verdict being against Rhodes and in favor of plaintiff Kelly for $8,000 and in favor of plaintiff Dinger for $5,000. There was a general verdict in favor of defendant Moser.

Injuries were sustained by Kelly and Dinger while guests in Rhodes’ automobile. The accident happened on Market street, in East Paterson, where the same meets the dead end of Chestnut street, and in front of a service station. Market street runs east and west, and is paved twenty feet wide with concrete with a dirt shoulder on each side seven and a half feet wide. The accident happened at six-thirty p. si., July 27th, 1929, while defendant Rhodes was operating his automobile in a westerly direction. The defendant Moser was operating his automobile in an easterly direction. As he approached the dead end of Chestnut street, so the evidence indicates, he came to a dead stop, permitting another automobile operating in the same direction to overtake him. Defendant Rhodes was then a distance variously estimated of from two hundred to four hundred feet away. Moser then continued easterly for a short distance in the center of the road and then made a left turn northerly, intending to drive into the garage. He had practically passed the concrete portion of the road, the right wheel being on the edge of it. He was then about twenty-five feet from the place where he had stopped.

The evidence reasonably tends to show that, in this posture of affairs, Rhodes, traveling very fast, from forty-five to sixty-five miles an hour, came along the right shoulder of the roadway, crashed into the right front side of the Moser car and caused the Rhodes car to stand up on its front wheels and. then roll over to its left side. The impact was terrific. The plaintiffs were injured.

It is said that the verdicts were against the weight of the evidence on the question of Rhodes’ liability. That question seems not to be seriously pressed, and properly, we think, because we think the factual situation was as we have outlined it; and we do not see how it can be said that the verdicts were against the weight of the evidence.

As the defendant says in his brief, the point “stressed” is that the verdicts are excessive. Kelly’s was for $8,000. He was forty years of age, married, having a wife and child. He was a steamfitter by occupation, earning $70 a week. Had been in good health. He was rendered unconscious; regained consciousness in the hospital in the morning. There is some evidence that he suffered fracture of the skull; had laceration across the forehead resulting in a scar; had an injury to his thumb; had lacerations of his right leg. For some time following the injury he had headaches accompanied by vomiting. There is evidence that the use of his thumb is somewhat impaired, and that his hearing was somewhat impaired. He returned to work some five weeks after the accident. We think his verdict of $8,000 is plainly excessive. If Kelly will consent to a reduction of the verdict to $5,000 he may enter judgment for that amount; otherwise, the rule to show cause, so far as he is concerned, will be made absolute.

As to the plaintiff Dinger, he likewise was employed by a machinist, earning $42.50 a week. He suffered, according to the testimony, a broken bone in the shoulder and an injury to the spine. He had abrasions on the head, chest, left leg and thigh, and abrasions of the temple and eyebrow. He was treated by a doctor for six or seven weeks and claims to have suffered from pains in the head and neck up to the time of the trial, and claims that he was obliged to carry his head in a forward and unnatural position. The doctors testified that the R-rays disclosed a fracture of the fifth and sixth vertebra, the vertebra of the neck, and a fracture of a bone of the shoulder, and the doctors testified he had a limitation of motion of the neck, and a loss of fifty per cent, grasping power of his hand. We cannot say that the verdict for $5,000 is excessive.

As to the plaintiff Dinger, the rule to show cause will be discharged, with costs.


text:
    IGNATZ KASS, PLAINTIFF-RESPONDENT, v. D. & L. OIL COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, David E. Feldman.

    Eor the defendant-appellant, George F. Seymour, Jr.

   Per Curiam.

The defendant was installing a gas tank into a hole dug in the sidewalk in front of a garage, and as it was doing so a part of the apparatus slipped and injured plaintiff’s leg. He sued on the grounds of negligence and was awarded $250.

The defendant appeals and sets up—•

1. The District Court erred in refusing a nonsuit on the ground that no negligence had been shown.

2. The District Court erred in finding negligence as a matter of fact, and also in finding that the defendant’s negligence was the proximate cause of the accident.

We find no evidence of negligence on the part of the defendant company. On the contrary, the evidence is convincing that plaintiff had been repeatedly warned of the danger and waived off the site, and that the accident that befell him was due to his negligence in disregarding precaution and insistently thrusting himself into the scene of operations.

The judgment below is reversed on both grounds, with costs.


author: Pee Ctikiam.

text:
    CITIZENS LOAN COMPANY, PLAINTIFF-RESPONDENT, v. BERTHA TRAMBERG, DEFENDANT, AND REINHOLD MANGEL, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, Feder & Rinzler.

    For the defendant-appellant, SaMzman & Bunevich.

   Pee Ctikiam.

Plaintiff sued and obtained judgment on a promissory note on which the appellant was an endorser. Judgment was entered February 28th, 1930. The appeal was taken and bond filed May loth, 1930, seventy-eight days after the entry of judgment. The statute (1 Cum. Supp. Comp. Stat., p. 983, ¶ 61, 213a) requires the appeal to be taken within twenty days after the determination by the District Court. Obviously the present appeal is far out of time. It appears that on March 19th, 1930, a rule to show cause why a new trial should not be granted was allowed to the defense and that the rule was vacated on May 14th, 1930; and that the rule provided that the granting thereof should not be a waiver of any notice of appeal. We think that the reservation contained within the rule is not to be interpreted as an order that, so far as concerned the time within which an appeal might be taken, the judgment was not to be considered as entered until the rule should be disposed of. 2 Comp. Stat., p. 2011, 213f. The plaintiff'contends that for the reason

stated the appeal should be dismissed; and we are constrained to the same conclusion.

The appeal will be dismissed, with costs.


author: Oliphant, S. C. C.

text:
    NEW MIAMI SHORES CORPORATION, PLAINTIFF, v. FREDERIC L. DUGGAN, DEFENDANT.
    Decided May 26, 1931.
   Oliphant, S. C. C.

This matter is before the'court on an agreed state of facts. It is a suit by the plaintiff as holders of eight notes made by the defendant. The payee of all the notes was the Miami Shores Company. The-notes were as follows:

“$217.50.
Miami, Florida, February 19th, 1925.
* * * On or before eighteen months after date, for value received, I promise to pay to the'order of Miami Shores Company, two hundred forty-seven and 50/100 dollars at its office in Miami, Florida, with interest thereon at the rate of eight per cent, per annum from date until fully paid. Interest pa.y-able semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment and protest; and in case suit shall be brought for the'collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees 'for making such collection. Deferred payments to bear interest from maturity at ten per cent, per annum semi-annually.”

The notes were endorsed 'in blank by the payee and assigned by separate instrument to the Commercial Bank and Trust Company, trustee, under date of July 20th, 1925. The pertinent part oí the assignment is as follows: “All the land purchase contracts, together with the notes relative thereto and all the obligations of the purchaser thereunder. The relative notes have been endorsed in blank and are thereafter deposited with the trustee and this assignment further evidences the right of the said trustee to the within, subject to the provisions of said indenture agreement.” The Commercial Bank and Trust Company, trustee, later assigned the notes together with the land purchase contracts to the City National Bank and Trust Company as trustee. A foreclosure suit was then prosecuted against the Miami Shores Company, Commercial Bank' and Trust Company, trustee, et al., and the special master under the foreclosure suit assigned the notes to the plaintiff corporation. Under date of August oth, 1926, the defendant assigned his two contracts of purchase to one Speedy, at which time the holder of the notes was the Commercial Bank and Trust Company, trustee.

I am satisfied the notes sued on were not negotiable. While I have been unable to discover any case in this state exactly in point, the Supreme Court of the State of Pennsylvania has held in a very recent case brought on notes identical in language with those in suit, that they do not meet the requirements of sections 1 and 2 of the'Negotiable Instrument act, and are not negotiable instruments. First National Bank of Miami, Florida, v. Bosler et al., 147 Atl. Rep. 74. The States of Pennsylvania, Elorida and New Jersey have all adopted the Uniform Negotiable Instrument act and I am in entire accord with that decision.

While these notes were not negotiable, they were assignable and a valid assignment was made to the Commercial Bank and Trust Company as trustee and finally by assignment came to the plaintiff corporation. The defendant seeks to prove that there was a novation by reason of his assignment under date of August 5th, 1926, to Speedy. It appeared that the Miami Shores Company acted as agent for Speedy, that it collected from Speedy $2,250, and that it sent its check to Duggan for the sum of $1,609.20, as is evidenced by the settlement sheet from the Miami Shores Company, showing a sale of the lots for Duggan and a settlement with him.

There was no novation of the contracts or notes. Novation implies the extinguishment of an existing debt or obligation by the parties thereto and its transition into a new existence between the same or different parties, the consideration mutually being the discharge of the old contract. No ex-tinguishment of plaintiff’s debt can be implied from the Duggan assignments or the Miami Shores Company settlement sheet. No new contract was substituted by Speedy with the Commercial Bank and Trust Company, trustee, who were the holders of the notes at the time of the assignment from Duggan to Speedy. The Miami Shores Company could make no contract with either Speedy or Duggan, the first to assume the debt and the other to be released therefrom, which could bind the trustee. At no time was there a substitution of one debt for the other. If Speedy assumed Duggan’s liability on the 'notes, this did not release Duggan from that liability. There was no acceptance by the trustee of any release of Duggan and the acceptance of the assumption of the obligation by Speedy. There is no proof of any payment by Speedy to any of the holders of the notes in the chain of holders on account of the notes in suit. The notes being non-negotiable, the plaintiff being the holder thereof by assignment, there being no novation and no evidence of payments thereon, the plaintiff is entitled to a verdict in the sum of twenty-nine hundred and seventy dollars ($2,970), representing the principal of the notes in suit and the interest thereon.

Judgment will accordingly be entered in that sum.


text:
    DANIEL PETRARCA, PLAINTIFF, v. JOSEPH A. SWEENEY, INCORPORATED, JOSEPH A. SWEENEY AND AGNES R. SWEENEY, DEFENDANTS.
    Argued October 7, 1930
    Decided May 25, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the rule, Kent & Kent (Samuel Kent, of counsel).
    Contra, Leavitt, Ulbrich & Talley (Fayette N. Talley, of counsel).
   Per Curiam.

The action was for damages for physical injuries. The ease was tried in the Hudson Circuit. The court directed a verdict in favor of defendants Joseph A. Sweeney and Agnes E. Sweeney and the jury found against the corporate defendant and in favor of the plaintiff for $300. The plaintiff obtained this rule directing the corporate defendant to show' cause why plaintiff’s verdict should not be set aside. On the argument both sides ask that the verdict be set aside, the plaintiff saying that it is inadequate, and defendants saying it is against the clear weight of the evidence, and against the charge of the court.

If we assume, without deciding, that it was open to the jury to find liability upon the part of the defendant company, then clearly the verdict was inadequate, for $300 is clearly not adequate compensation for the plaintiff’s recoverable loss and damages as disclosed by the evidence.

The rule to show cause will be made absolute, and a venire de novo will issue for the retrial of all the issues as between plaintiff and the corporate defendant.


text:
    CHARLES REYNOLDS, PLAINTIFF-RESPONDENT, v. THE ZISETTE COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided May 25, 1931.
    Before- Justices Case, Daly and Donges.
    For the plaintiff-respondent,' Frank J. Davies.

    For the defendant-appellant, .Colton & Hare.

   Per Curiam.

This is an'appeal from a judgment for $180 damages and $12.60 costs, entered in the First District Court of the city of Paterson. The suit was for damages to silk portieres which plaintiff had given to the defendant to be cleaned and which, as alleged, were irreparably damaged in the cleaning.

The first and second points relate to the admission of the testimony'of Eleanor S. Beynolds on matters claimed by the appellant to be hearsay. We are of the opinion that a number of the questions, admitted over the defendant’s objection, called for and were answered with testimony'that was clearly hearsay. One such question was as follows: “Did you inquire about and make inquiries about the silk, as to the value of replacing them ?” Objection was made and overruled, and an exception was taken. The question, slightly changed‘but substantially the same, was repeated and was answered-—• omitting the interruption of a further objection made in the course thereof—“I went to several factories, mills here in Paterson, to see if they made the material, and they said no; and the place at the end of Market street, way down at the end of Market street, whatever its name is, told me to replace that goods he would need to order—whatever gentleman waited on me at that factory told me it would be fifteen dollars or sixteen dollars a'yard to replace that to-day. They told me it was pure silk in two or three places, and they didn’t have anything like that now.” The purpose of this evidence was to show the extent of the loss sustained by the plaintiff by reason of the injury to his silk portieres. It was incompetent and a judgment which rests in any degree upon such testimony cannot be supported. Arata v. Sullivan, 63 N. J. L. 46.

We deem it unnecessary to consider the remaining points raised on appellant’s brief.

The judgment is reversed.


text:
    JOHN KNAPP, RELATOR, v. JOHN D. CASTLES, MUNICIPAL SUPERINTENDENT AND BUILDING INSPECTOR OF THE TOWN OF KEARNY, AND THE TOWN OF KEARNY, DEFENDANTS.
    Argued May 5, 1931
    Decided May 27, 1931.
    Before Justices Teenchakd, Daly and Donges.
    For the relator, Maurice Grossman (Max L. Rosenstein, of counsel).
    For the defendants, John II. Cooper.

   Pee Cueiam.

This is a rule to show cause why a mandamus should not issue to the municipal superintendent and building inspector of the town of Kearny, and to the town of Kearny, requiring them to issue a permit to the relator for the erection of an ice dock and ice and coal office upon premises owned by the relator.

It appears that the relator made application December 4th, 1930, but was refused by the inspector, as relator seems to contend, because the inspector had been advised by the authorities of the town of Kearny not to grant it; the defendants on the other hand contending that it was refused because it was not accompanied by a “plot plan.”

The depositions do not clearly show whether or not there was a plot plan filed with the building inspector with the application. The relator seems to say it was filed, and Mr. Castles, the building inspector, seems to say that it was not. In the depositions Mr. Castle admits in effect that he did not tell relator at the time that a plot plan was required, but he does say that he told relator “downstairs” that he should have a plot plan.

The defendants say that a plot plan is required by the ordinance. Whether that is so we cannot now determine with certainty, for while an ordinance seems to have been marked as an exhibit, it is not printed. There was some testimony, however, that seems to indicate that all applications for building permits shall be accompanied by plan showing the actual dimensions, &c., of the lot.

We think there is a showing sufficient for the award of an alternative writ.

Where, on application for mandamus it appears, as here, that there are fairly debatable questions involved, the Supreme Court will ordinarily issue an alternative writ, to the end that an issue may be made and the facts ascertained, and an opportunity for review in error. Schnitzler v. New York Transportation Co., 76 N. J. L. 171.

An alternative writ will therefore be awarded.


author: Pee Cuktam.

text:
    HYMAN ISAACS’ SONS COMPANY (A CORPORATION OF NEW JERSEY), PLAINTIFF, v. S. S. THOMPSON AND COMPANY (A CORPORATION OF NEW JERSEY), DEFENDANT.
    Submitted October 18, 1930
    Decided June 1, 1931.
    Before Gummbkb, Chief Justice, and Justices Teen•chakd and Lloyd.
    For the rule, Francis A. Gordon.'

    Contra> Quinn, Parsons ■& Doremus (Theodore D. Parsons, ■of counsel).
   Pee Cuktam.

This is plaintiff’s rule to show cause why defendant’s verdict of no cause of action should not be set aside.

The plaintiff was engaged in the scrap iron business. The defendant was a general contractor. Between October, 1938, .and January, 1939, defendant was engaged in the erection of a bascule bridge at Matawan for the state highway department. The bridge was one with one long leaf counterbalanced by a short leaf and designed to operate through the fact that the short leaf, with its counter-weight, exactly balanced the long leaf. The counter-weight consisted of concrete weighted by steel of the type known as steel punchings, and such counter-weight was required to be very nicely weighted, and a record kept of the component parts from which the builder could determine the exact amount of weight which had been placed.

It appears that the proofs indicated that in September, 1928, the contractor ordered from the plaintiff two hundred tons of the punchings at $16 per net ton. These were delivered to the contractor. On each delivery the plaintiff weighed the empty truck and then weighed the loaded truck. Admittedly, each truck changed‘in weight from time to time due more or less to equipment, gasoline and refuse, and plaintiff seems to have made no allowance for this.

After the trucks were loaded the drivers of the defendant drove the trucks to Matawan where, the bridge was, and where the trucks were unloaded. Here the material remained under the supervision of the state highway engineers and the night watchman of the defendant. That material was used in making the counterweight. The evidence tends to show that every bit of the material was weighed as the counter-weight was constructed. Additional material became necessary in excess of the two hundred tons. This was ordered from the plaintiff and was likewise weighed and handled and used.

The plaintiff rendered a bill to the defendant claiming that there had been delivered to the defendant two hundred and ninety-five tons of punchings. Payments were made on account of this bill. Upon a checking up, according to defendant’s proof, the amount used was only two hundred and fifty-five tons. Defendant refused to pay the bill rendered. The plaintiff brought this suit and the jury decided against it.

Eor the plaintiff, Hyman Isaacs and his brother each testified that they weighed the punchings at their yard and that the weights gave a total of two hundred and ninety-five tons.

The defendant then placed upon the stand each and every one of the truck drivers, who testified to their system of checking, and the state highway engineer, who supervised the weighing.

The suit was brought for $577.80, which seems to represent the difference between the plaintiff’s calculation and the defendant’s calculation, being the claimed balance.

It is claimed by the plaintiff that the verdict in favor of the defendant is against the clear weight of the evidence and the charge of the conrt.

Onr examination of the case leads us to the conclusion that the verdict cannot be said to be against the weight of the evidence, and that it is not against the charge of the court. The court fairly reviewed the conflicting evidence in his charge, and finally said, amongst other things: “It is for you to say which of this testimony bears the greater weight in your mind * * * and your verdict will be according to what you believe in that case.”

The rule to show cause will be discharged, with costs.


text:
    ISADOR WARSHAWSKY, MAX GAER AND BERNERT COHEN, PLAINTIFFS, v. NATHAN LIEBOWITZ, CARL R. NELSON, TRADING AS NELSONS’ EXPRESS, AND LAWRENCE J. VENEMA, DEFENDANTS.
    Submitted October 18, 1930
    Decided June 1, 1931.
    Before Gummebe, Chief Justice, and Justices Teen•ciiabd and Lloyd.
    Eor the plaintiffs, Weinberger & Weinberger.

    Eor the defendant Nathan Liebowitz, Edwards, Smith & Dawson.

    Eor the defendants Carl R. Nelson, trading as Nelsons’ Express, and Lawrence J. Yenema, Alexander M. McLeod.

   Pee Curiam.

This is plaintiffs5 rule to show cause why the verdict at the Passaic Circuit in favor of all of the defendants should not be set aside.

The case arose out of an automobile accident which occurred May 11th, 1929, wherein an automobile owned and operated by the defendant Liebowitz was in collision with a motor truck owned by defendant Nelson and driven by his servant, Yenema.

Liebowitz was driving towards Paterson on Lexington avenue, in Clifton, and Yenema was driving in the opposite direction towards Passaic. When Yenema-reached the intersection of Randolph street, he made a left turn to enter into the street, and Liebowitz, coming towards Yenema, truck the right rear wheel of Yenema5 s truck. The plaintiffs were all passengers in the Chevrolet car which was owned and driven by Liebowitz, and they all claim to have sustained personal injuries.

It is first said that the verdict in favor of the defendants-was against the weight of the evidence. The only witnesses-to the accident were the drivers and the occupants of the-two cars, who were called as witnesses by the plaintiffs.

The defendant Yenema testified that he was going about ten miles an hour with an open truck; that he could stop Ms-truck, going at that rate, within three feet; that he made a left-hand swing into. Randolph street; that there were no-cars coming in his direction, and when he had proceeded approximately three-quarters of the way across Randolph street, the defendant Liebowitz, operating his Chevrolet automobile, struck the real wheel of Yenema’s truck. He further testified that he blew his horn, and he also testified that he-stopped a few feet after the collision. He further testified that Liebowitz was traveling approximately thirty-five miles an hour and was “tearing down55 Randolph street at that rate of speed when he was three-quarters of the way across.

The defendant Liebowitz, called by the plaintiffs, testified that Yenema was operating at eighteen miles an hour, and that he did not see the truck making the left-hand turn into Randolph street, and that the Chevrolet car came into contact with the right wheel of Venema’s truck.

The plaintiffs, passengers in Liebowitz’s car, testified that Liebowitz was driving fast and struck the truck with such force that they were thrown out of the car in which they were riding, and that the Liebowitz car did not stop at all before the impact.

The testimony clearly shows that this accident was caused solely by the negligence of the'defendant Liebowitz, in fast driving in the circumstances, and in not properly observing, as it was his duty to- do, the Venema truck.

So far as the verdict in favor of the owner and driver of the Venema truck is concerned, the rule to show cause will be discharged.

So far as the verdict in favor of Liebowitz is concerned the rule to show cause will be made absolute.


author: Lawhence, C. C. J.

text:
    WESTON CRANMER, AN INFANT, BY EMILY CRANMER, HIS NEXT FRIEND; RICHARD CROSTA. AN INFANT, BY AMOS CROSTA, HIS NEXT FRIEND; AND EMILY CRANMER, AS ADMINISTRATRIX OF THE ESTATE OF LEON CRANMER, DECEASED, v. GRANT CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, AND CHARLES W. MATHIS, DEFENDANTS.
    Decided June 2, 1931.
    Before La whence, Circuit Court judge.

      Eor the rule, George A. 'Celia.

    Contra, David A. Veeder.

   Lawhence, C. C. J.

This is an accident case involving the collision of an automobile' owned by the estate of Leon Cranmer, deceased, and driven at the time by his son, Weston Cranmer, with a'portable cement mixer in the possession and control of defendant company and alleged to have been negligently left by its employes partly in the highway without proper lights to indicate its presence. The accident occurred after dark and resulted in the breaking of the automobile, for which the plaintiff administratrix sought recovery, and personal injuries to the other plaintiffs. The case was tried at the Ocean Circuit before the court and a jury. A verdict was returned in favor of the plaintiff administratrix, as against which the present rule to show cause was taken out by the defendant company, pursuant to chapter 356. Pamph. L. 1931. The respective claims of Weston Cranmer and Richard Crosta (a passenger in the automobile) were not considered at the trial inasmuch as it was stated that such claims had been adjusted by the defendant company out of court, while a voluntary nonsuit was had as to the other defendant, Charles W. Mathis, it appearing that the cement mixer did not belong to him as charged in the complaint, but to Charles W. Mathis and Sons, Incorporated. This concern also brought suit against the defendant company to recover for the breaking of the machine in the collision, alleging a failure to exercise ordinaiy care in protecting it. This suit was tried at the same time and also 'resulted in a verdict against the defendant company. A rule to show cause was also allowed as to such verdict, and that as well as the present rule were argued together, the -same grounds for new trials being advanced. Since the conclusion on the rule in the case of Charles W. Mathis and Sons, Incorporated, against the defendant company, to be filed herewith, is regarded as dis-positive of the rule here considered, it follows that it must be discharged.


author: Laweenoe, C. C. J.

text:
    CHARLES W. MATHIS AND SONS, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. WESTON CRANMER AND GRANT CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Decided June 2, 1931.
    Before Laweenoe, Circuit Court judge.
    For the rule, George A. Celia.

    Contra, Percy Camp.

   Laweenoe, C. C. J.

This suit arose out of a collision of an automobile driven by the defendant Cranmer with a portable cement mixer owned by plaintiff and alleged to have been negligently left by employes of the Grant Construction Company partly on the highway without proper lights to indicate its presence. The accident occurred after dark and resulted in the breaking of the machine for which a recovery was sought by plaintiff of both defendants. The case was tried at the Ocean Circuit before me as trial judge and a jury. ' The verdict was in favor of plaintiff and against the construction company for the moneys necessarily expended in having the machine repaired. The latter took out the present rule to show cause, pursuant to chapter 356, Pamph. L. 1931, and argues for a new trial on the following grounds: (1)

because the jury was prejudiced by reason of a statement made immediately preceding the trial and within the hearing of members of the jury that the construction company had made a settlement for the personal injuries sustained by the other defendant Cranmer; (2) and (3) the court’s refusal to grant a nonsuit and to direct a verdict; and (4) that the verdict was not only contrary to the weight of the evidence but the evidence itself.

The circumstance involving the construction company’s possession of the cement mixer was that'sometime before the accident it had hired it of plaintiff under a stipulated compensation for the purpose of enabling the company to perform a contract which required the building of approaches to a bridge under reconstruction. This work had been completed and defendant had notified plaintiff that it could come and get .the machine but that it would hold it three or four days in order to have its men clean it, which appears to have been contemplated under the hiring agreement.

While a question was raised at the trial as to the date of the accident, defendant claiming that it was after this period, that the agreement was then at an end and the machine at the risk of plaintiff, it was open to the jury to find that' the date was as alleged in the complaint and consequently that it was still in the possession and control of defendant. Its duty was, therefore, to use ordinary care to see that the machine was properly placed and lighted at night to the end that it should not, in the negligent sense, interfere to their injury with those having occasion lawfully to use the highway, and that it should be reasonably safeguarded from breakage due to such negligence. New York, Lake Erie and Western Railroad Co. v. New Jersey Electric Railroad Co., 60 N. J. L. 338; affirmed, 61 Id. 287. That the defendant company undertook to observe this duty was indicated by the testimony of its employes that they not only located the machine adjacent to the highway at the time but placed lights upon it. An issue of fact was raised at the trial as to their negligence in this regard, and it cannot be said that the finding of the jury in this respect adversely to defendant company was contrary to the weight of the evidence.

It is also urged as a ground for setting aside the verdict that the statement made at the trial, for the purpose of informing the court as to the issue to be submitted, relative to a settlement for the personal injuries sustained by the other defendant (Oranmer), alleged to have been made within the hearing of members of the jury, was prejudicial. No proof in support of it, however, was offered on the hearing of the rule, and it is difficult to see how any such proof could have been obtained. Bragg v. King, 104 N. J. L. 4. The bare statement of counsel will not suffice, especially as it is found that the verdict was not contrary'to the weight of the evidence. Moreover, there is nothing before me to indicate that any of the jurors heard the statement. The other reasons advanced have been examined and found not to justify disturbing the verdict. The rule to show cause will be discharged.