author: Eldredge, C. C. J.

text:
    HARRY WEATHERBY AND ELI F. STEWART, PARTNERS, TRADING AS WEATHERBY AND STEWART, PLAINTIFFS, v. AETNA INSURANCE COMPANY, DEFENDANT.
    Decided June 12, 1933.
    Before Henby H. Eldbedge, Circuit Court judge.
    For the plaintiffs, Riggins & Da-vis.

    For the defendant, Carr <& Carroll.

   Eldredge, C. C. J.

The complaint in the instant suit sets up that on July 1st, 1929, the Aetna Insurance Company issued a policy to the plaintiffs, trading as Weatherby and Stewart, in the sum of $3,000, covering certain personal property, consisting of such articles as are usually kept in a country store. The policy was for a term of one year, running from July 1st, 1929, to July 1st, 1930. Upon expiration of the said policy and on or about the 1st of July, 1930, the defendant, upon its own volition and without any solicitation or request therefor by the plaintiffs, renewed the said policy, and then and there duly issued and delivered to plaintiffs its fire insurance policy under the terms of which it insured the plaintiffs against all direct loss or damage by fire to an amount not exceeding $3,000 on the property therein described. The premium of $52.80 was paid.

The complaint then further alleges that the property insured was destroyed by fire on August 18th, 1930, and that due proof was made thereof. It then alleges that on May 26th, 1930, a chattel mortgage was given to the Swedesboro National Bank covering the property insured, and sets up the following extracts from the policy:

“This entire policy, unless provided by agreement endorsed hereon or added hereto, shall be void * * * if the subject of insurance be personal property and be or become encumbered by a chattel mortgage.”

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether before or after a loss.”

It then further alleges in paragraph 9 as follows:

“At the time the policy of insurance was issued and delivered to the plaintiffs by the defendant, the defendant, through its agent, Harold S. Twiss, who signed and issued said policy, knew that the aforesaid chattel mortgage had been executed and delivered by the plaintiffs to the Swedesboro National Bank.”

There then follow two paragraphs, the first setting up the allegation that the defendant was a specialist in the insurance business; that it invited the plaintiffs to rely upon it; that the policies were long and full of fine print and not easily read or understood by a layman; and the second that the plaintiffs were ignorant of its terms and relied wholly upon the defendant to see that they were furnished with a valid and legal enforceable policy of fire insurance.

Paragraph 12 of the complaint then alleges:

“On or about the 24th day of March, 1931, plaintiffs instituted an action at law on the said policy against the aforesaid defendant in the Supreme Court of the State of New Jersey to recover their loss under said policy. After answer and reply filed, the said Supreme Court, on motion of the defendant, struck out the complaint and the reply of the plaintiffs and entered judgment final in favor of the defendant,” after which paragraph 13 charges as follows:

“Defendant, at the time it issued and delivered the policy of insurance to plaintiffs, was negligent in that it, upon its own volition and without any solicitation or request therefor made by the plaintiffs, knowing that the plaintiffs relied upon it as a specialist in fire insurance to furnish them with a valid fire insurance policy, and having knowledge at the time of its execution and delivery to plaintiffs, of the existence of the chattel mortgage, which, according to the provisions of the policy of insurance, rendered the policy void unless a waiver in the nature of a rider was attached thereto, issued and delivered to the plaintiffs its said policy of fire insurance and accepted the premium therefor, knowing that it was delivering to plaintiffs a void policy, thus leading the plaintiffs to believe that they were properly, legally and fully protected.” Counsel for the defendant now moves to strike the complaint on seven separate grounds, which need not be here set out in full.

It will be noted from paragraph 12 of the complaint that the plaintiffs .had already instituted suit on their policy, and their complaint in the prior suit was stricken. See Weatherby and Stewart v. Astna Insurance Co., 9 N. J. Mis. R. 1260;. 157 Atl. Rep. 169. Bnt counsel for the plaintiffs contend that the defendant was under a duty imposed by law to use due care in insuring the property of the plaintiffs and in issuing and delivering the policy; that defendant, in pursuance of that duty, was negligent, and such negligence was the cause of loss to the plaintiffs; and further, that the previous suit in contract was on the policy and does not preclude this suit, which is in tort for the breach of a duty owing independent of the contract but growing out of the relationship assumed by the defendant in undertaking to insure the property of the plaintiffs.

The present action, then, does not sound in contract but in tort. The plaintiffs seek to recover not under the policy, but because they allege the company, through the negligence of its agent or as principal, gave them a policy which was either void or voidable. They quote 26 R. G. L. 527, for their definition of negligence, as follows:

“An injurious act or omission not done or omitted with any intent to produce harm, nor in the invasion of any distinct or absolute legal right of another, nor in violation of any positive law or special or absolute obligation; bnt which, in the exercise of due diligence and skill, might have been forseen and prevented, and the person upon whom the injury has fallen may have been one for whose safety and protection the defendant was, at the time, under some qualified or limited obligation,” and then assert that the defendant was under some qualified or limited obligation to provide for the safety and protection of plaintiffs.

In support of this theory they cite a long line of eases holding that an insurance company is effected with a public interest; and that they are “gwsi-public corporations,” and among other authorities cite O’Gorman v. Hartford Insurance Co., 105 N. J. L. 642; 146 Atl. Rep. 370, and Attorney-General v. Firemen’s Insurance Co., 74 N. J. Eq. 372; 73 Atl. Rep. 80. After a long discussion of this question, Mr. Justice Garrison, in the latter ease, said: “The conclusion we reach from these contracts is that the business of the defendant is in point of fact one that directly affects the interest of the public, and that such public interest has been recognized as a subsisting one by the legislature of the state, and that in point of fact the business of the defendant is affected with a public interest.” He thereupon held that the attorney-general might enjoin the company from making a contract that was ultra, vires. It was upon this same theory, we take it, that the legislature permitted the insurance companies to fix rates which all companies must observe, and also put them under the supervision of the department of banking and insurance and prescribed the form of policy they are required to use.

These very regulations, however, seem to the court to negative the claim of the plaintiffs in this suit. By reason of the fact that 'they are gwsi-public corporations, the legislature has prescribed, in certain respects, what their duties are, particularly as regard the form of contract, but nowhere does the legislature charge them with as broad a duty as the plaintiffs herein claim. Except with respect to such changes as have been made by legislative enactment, it does not appear that in our law there is any greater duty imposed upon the parties entering into an insurance contract than is required in other contracts.

We are not unmindful of what appears to be a trend in the law of some jurisdictions to lean toward the contention of the plaintiffs. In Boyer v. State Farmers’ Insurance Co., 86 Kan. 442, a delay of four days in issuing a policy for hail insurance, which was held by the agent for that period of time and at the end of which time the crop was destroyed, was deemed sufficient to justify a recovery in tort for negligence, and in Duffle v. Bankers Life, 139 N. W. Rep. (Iowa) 1087, it was held that an action of tort would lie for delay in issuing a policy where an application was made for life insurance on June 8th and on July 9th, the applicant died before the policy was issued. So in Carter v. Manhattan Life Insurance Co., 11 Hawaii 69, under the same facts, a thirty-day delay was held actionable.

These cases are interesting as showing a tendency to apply the law of negligence to insurance companies. They are readily distinguishable on their facts, however, and might or might not be followed in this state.

Counsel’s brief contains a long discussion concerning what is alleged to be a confusion in this state between estoppel and waiver. Little need be said here, however, because in the first place the suit is not based upon estoppel, but upon neg- . ligence; and in the second place, the question of estoppel was disposed of in the prior action above referred to when suit was brought on the policy.

Neither is it necessary to discuss the question of contributory negligence, which of itself raises a serious question in this case.

Whatever may ultimately be our court’s view with respect to the duties imposed upon the insurer, there can be little doubt as to the duty of the assured, for as late as 1932, in Hudson Casualty Co. v. Garfinkel, 111 N. J. Eq. 70; 161 Atl. Rep. 195, the court cites with approval Crescent Ring Co. v. Travelers’ Indemnity Co., 102 N. J. L. 85; 132 Atl. Rep. 106.

In the light of the views herein expressed, the complaint will be dismissed.


source: Caselaw Access Project

author: Brown, S. C. C.

license: Public Domain

text:
    JOHN MCLAUGHLIN, PLAINTIFF, v. CENTRAL SURETY AND INSURANCE CORPORATION, A CORPORATION, DEFENDANT.
    Decided June 14, 1933.

      Por the plaintiff, William Eichenbaum.

    Por the defendant, Marie Townsend, Jr.

   Brown, S. C. C.

The plaintiff moves to strike the defendant’s answer on the ground that it is sham in part and frivolous in the remainder. The pleadings disclose that on the 15th day of March, 1932, the plaintiff sustained personal injuries from the negligent operation of an automobile by Bart Petella. The plaintiff brought suit for damages in a District Court and recovered a judgment against Petella on the 27th day of June, 1932. Petella at the time he is alleged to have injured the plaintiff was insured against the loss by the defendant insurance company. An effort was made to collect the judgment against Petella without success and the plaintiff brought suit to recover on the liability policy of indemnity issued by the defendant to Petella. The plaintiff annexes a copy of the policy to his affidavit which discloses that the defendant agreed, in the usual form, to indemnify Petella against the judgment obtained by the plaintiff against him. The policy also contained the usual provisions of co-operation on the part of the assured and that the assured would give the defendant timely notice of any accident covered by the policy. The defendant alleges in its answer that Petella failed to give the written notice of the accident and wholly failed to cooperate as required by the terms of the policy. The plaintiff contends that the liability of the defendant is absolute under the statute and that the answer is therefore frivolous. To decide this issue it is necessary to construe the effect of Pamph. L. 1929, ch. 116, p. 201, and as amended by Pamph. L. 1931, ch. 169, p. 334. It is true as contended by the plaintiff that in section 10 of the those statutes it is provided:

“The liability of any company under a motor vehicle liability policy shall become absolute whenever loss or damage covered by said policy occurs and the satisfaction by the insured of a final judgment of such loss or damage shall not be a condition precedent to the right or duty of the carrier to make payment on account of such loss or damage. No such policy shall be canceled or annuled as respects any loss or damage by any agreement between the carrier and the insured after the said insured has become responsible for such loss or damage and any such cancellation or annulment shall be void.”

To properly understand the effect of those positive statutory declarations of liability it is necessary to consider the entire statute and a reading of the first sections of Pamph. L. 1929 and 1931 shows the policies of liability insurance considered and contemplated by the legislature were those where proof of financial responsibility was required “from any person who shall have been convicted of or who shall have forfeited any bond taken, or shall have had his case nolled * * * or who, while operating any motor vehicle shall have been concerned in any motor vehicle accident resulting in the death of, or injury to, any person or damage to property to- the extent of at least one hundred dollars ($100).” By section 1, Pamph. L. 1931, the classification of the motor operators who are to furnish proof of financial responsibility are increased. The last paragraph of Pamph. L. 1929, p. 201 and Pamph. L. 1931, p. 343, provides:

“Such motor vehicle liability policy shall be subject to the following provisions which need not be contained therein.”

This provision clearly refers to the classification of cases where proof of statutory financial responsibility is required. To construe the statutes in question as making absolute the liability sustained under every policy of insurance that is issued would be reading into the statutes a meaning that was not intended. If the legislature intended those laws to have that effect they would have so stated in the laws enacted. This was not done but to the contrary a restricted application was intended because of the evident enumeration of the cases wherein proof of financial responsibility is required.

The complaint in this cause does not allege that the policy of indemnity covered one of the classes named in the statute and it does not appear in the moving papers that the policy issued by the defendant to Petella falls within any of the designated statutory classes where proof of financial responsibility is required; consequently, the statute does not make absolute the liability of Petella as against his insurance carrier.

The motion is denied where it is directed against the second defense to both counts as being frivolous and allowed as to the first defenses to the first and second counts as being sham.


author: Jayne, S. C. C.

text:
    ETHEL BUFFINGTON AND EDMUND BUFFINGTON, PLAINTIFFS, v. COUNTY OF ATLANTIC, DEFENDANT.
    Decided June 19, 1933.
    Por the motion, Edmund, C. Gaskill, Jr., county counsel.

      Contra, Samuel T. French.

   Jayne, S. C. C.

A motion is made in behalf of the defendant, county of Atlantic, to strike out the complaint filed in the above entitled action in that it fails to allege a cause of action against the defendant. Succinctly stated, the complaint alleges that on December 12th, 1931, the plaintiff Ethel Buffington, was a passenger in an automobile traveling on Weymouth road, a public highway under the control and maintenance of the county of Atlantic, and that it was the duty of the defendant to maintain this road in a reasonably safe condition for public travel and to prevent the presence of obstructions in and upon the highway with proper warning signs or other safeguards for the protection of travelers thereon against injury from any existing dangerous condition in the highway. It is alleged in the complaint that a large tree was situate within the boundaries of that portion of the road open for travel, and that on the night of the date mentioned, the automobile in which the plaintiff Ethel Buffington was riding collided with this tree, in which collision this plaintiff sustained bodily injuries for which she seeks damages. It is further alleged that the tree had remained at this location in the highway for more than twenty months prior to the occurrence of the collision. It is contended in behalf of the defendant that no liability on the part of the defendant arises out of the facts alleged in the complaint. It is conceded that the construction, improvement and repair of county roads are public duties of the county and not of a private or gmsi-private nature. The rule with its exceptions relative to the liability of municipal corporations for negligence in the performance of public governmental duties is well established in this state. The following reported cases are illuminative: Freeholders of Sussex v. Strader, 18 N. J. L. 108; Cooley v. Freeholders of Essex, 27 Id. 415; Livermore v. Freeholders of Camden, 31 Id. 508; Pray v. Jersey City, 32 Id. 394; Town of Union ads. Durkes, 38 Id. 21; Condict v. Jersey City, 46 Id. 157; Wild v. Paterson, 47 Id. 406; 1 Atl. Rep. 490; Jersey City v. Kiernan, 50 N. J. L. 246; 13 Atl. Rep. 170; Waters v. Newark, 56 N. J. L. 361; 28 Atl. Rep. 717; Hart v. Freeholders of Union, 57 N. J. L. 90; 29 Atl. Rep. 490; Kehoe v. Rutherford, 74 N. J. L. 659; 65 Atl. Rep. 1046; Bisbing v. Asbury Park, 80 N. J. L. 416; 78 Atl. Rep. 196; Karpinski v. South River, 83 N. J. L. 149; 83 Atl. Rep. 639; Jerolaman v. Belleville, 90 N. J. L. 206; 101 Atl. Rep. 244; Buckalew v. Freeholders of Middlesex, 91 N. J. L. 517; 104 Atl. Rep. 308; Doran v. Asbury Park, 91 N. J. L. 651; 104 Atl. Rep. 130; Garrison v. Fort Lee, 92 N. J. L. 566; 106 Atl. Rep. 381; Olesiewicz v. City of Camden, 100 N. J. L. 336; 126 Atl. Rep. 317; Ansbro v. Wallace, 100 N. J. L. 391; 126 Atl. Rep. 426; Johnson v. Board of Education of Wildwood, 102 N. J. L. 606; 133 Atl. Rep. 301; Murray Rubber Co. v. Trenton, 103 N. J. L. 43; 135 Atl. Rep. 475; Zboyan v. Newark, 104 N. J. L. 258; 140 Atl. Rep. 225; Callan v. Passaic, 104 N. J. L. 643; 141 Atl. Rep. 778.

It has been uniformly held that, in the absence of statute, a municipal corporation, to which has been delegated by lav> the performance of public duties, cannot be held liable in the suit of an individual for mere negligence in the performance of those public duties, which negligence is a public wrong for which an indictment will lie. On the other hand, municipal corporations have not been exempt from liability for injury to individuals in the performance of public duties proximately caused by the active wrong-doing of the municipal corporation. Undoubtedly, the existence of a large standing tree within the boundaries of the paved portion of a public highway is such an obstruction that, in the absence of adequate warning of its presence, it might become a nuisance. The determination of this motion, therefore, depends upon the solution of the question of whether, under the facts properly alleged in this complaint, the county is beyond the range of liability under the rule expressed in Freeholders of Sussex v. Strader, supra, and kindred cases, or whether such facts if true, constitute active wrong-doing chargeable to the defendant for which the defendant even as a municipal corporation might be held liable under the authority of Hart v. Freeholders of Union, supra, and related cases.

In considering the sufficiency of the complaint, the mere allegation in the complaint of the official duties of the defendant does not in legal effect strengthen the complaint. The sufficiency of the complaint must be determined from such facts as are therein properly alleged from which the legal duty is deduced. Marvin Safe Co. v. Ward, 46 N. J. L. 19, 23.

Specific reference to all of the many allegations contained in this complaint is unnecessary. Many of the averments in the complaint are characterizations and statements of conclusions. Prom a careful reading and consideration of the entire complaint, however, it may be concluded that the complaint alleges that the road in which this tree was situate was .acquired by the county in April, 1930, and that in April, 1930, the defendant improved it and so carelessly and negligently constructed and improved the road as to permit the large tree to stand and thereafter remain within the boundaries of that part of the road to be used for public travel, and that since the improvement of the road in 1930 whereby the tree was included within the portion of the road open to the public, the defendant, although aware of the presence of this tree in the highway, failed to provide any signs, safeguards or other means of warning travelers upon the highway of the presence of this tree. These averments of fact, although not pleaded with the clarity to be desired, may, nevertheless, be gathered from the allegations contained in paragraphs 2, 3 and 4 of the complaint when read and considered in relation to each other.

It may well be that if the plaintiff could establish the fact that the county, in the construction and improvement of this road, so widened it as to include in the paved portion of the highway a large tree, and failed thereafter to provide travelers at night with, a reasonable warning of the presence of the tree in that location, the county would be liable, upon the charge of active wrong-doing and positive misfeasance such as comprehended by the exception to the rule exempting municipal corporations from liability. Cochran v. Public Service Electric Co., 97 N. J. L. 480; 117 Atl. Rep. 620; Florio v. Jersey City, 101 N. J. L. 535, 537; 129 Atl. Rep. 470,

In defending the sufficiency of the complaint, counsel for the plaintiff contends that such a factual situation is alleged and that under the complaint it is his intention to offer proof of such circumstances.

The motion to strike out the complaint will be denied.


author: Per Curiam.

text:
    ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, PLAINTIFF-RESPONDENT, v. ESSEX CHAIR COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided June 21, 1933.
    Before Justices Trencbard, Case and Brogan.
    For the appellant, Fast & Fast.

    For the respondent, Joseph O. Paul.

   Per Curiam.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff in the District Court by a trial judge, sitting without a jury, for the sum of $430.18. The pertinent facts are as follows:

The defendant below, who is the appellant here, was insured by the plaintiff company through a firm known as Lippman & Lowy, Incorporated, which firm admittedly is general agent for the plaintiff insurance company. The policies in question covered the insured for compensation and public liability, the amount of the premiums depending upon an audit of the yearly payroll of the insured determined by an auditor of the insurance company from an examination of the books of the assured. The premium for the first year’s policy of insurance was $419.86; the premium for the renewal of the policy for the ensuing year was $422.18.

The first year’s premium was paid by Lippman & Lowy, Incorporated, to the plaintiff insurance company and was not collected from the insured. The second year’s premium was not paid by the defendant to either the plaintiff insurance company or the general agent, and at this juncture of affairs negotiations ensued between the insured and the general agent which resulted in a settlement between these parties of the total claim for the sum of $500. The general agent, Lippman & Lowy, Incorporated, accepted this amount, deducted its share, and sent to the plaintiff insurance company the sum of $74.64 as the amount due and owing to it under the terms of the settlement made. The check was promptly returned by the plaintiff insurance company to its general agent, suit was brought by the insurance company for premium due for the policy of insurance issued for the second year and resulted in b finding favorable to the plaintiff for the full amount of the premium and costs.

Several grounds of appeal are urged which resolve themselves into one question — whether or not the general agent had authority to settle this claim for unpaid insurance premiums. The court decided that the general agent had no such power and this we think was clearly error.

An examination of the proofs discloses that there was no ■evidence that the defendant in making this settlement with the general agent had acted in bad faith or had the slightest knowledge that Lippman & Lowy, Incorporated, did not have .authority to settle or had acted in violation of any limitations upon their authority or of any private instructions as to their right to make settlement. The rule is that a principal will he bound by the acts of a general agent acting within the .scope, or apparent scope, of authority. Millville Mutual Marine and Fire Insurance Co. v. Mechanics and Workingmen’s Building and Loan Association, 43 N. J. L. 652, wherein the rule is stated as follows:

“If a person is in fact, or apparently, a general agent o-f the company, he stands in the place of the company to the assured, and in the absence of any limitation of his power made known to the assured, and any act done by him within the apparent range of his employment, before or after the contract is entered into, is binding upon the principal.”

It becomes apparent, therefore, that even if the general agent was under secret instructions of the principal, restricting such general agent from making a settlement of the kind under discussion, and these instructions were unknown to the defendant assured, they are not binding upon the assured. Under the proof before us the settlement agreement was valid and binding upon the plaintiff insurance company.

Those conclusions on our part dispose of this case and lead to a reversal which is hereby ordered, costs, however, to abide the event.


text:
    FILIPPA SCATURRO AND CALOGGERO SCATURRO, PLAINTIFFS-RESPONDENTS, v. JAMES RENDA, DEFENDANT-APPELLANT, AND NATHAN SCHWERTZER, INCORPORATED, DEFENDANT.
    Argued October term, 1932
    Decided June 21, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the appellant, John F. Ryan.

    For the respondents, Mario Turtur (Harold W. Borden, of counsel).
   Per Curiam.

This is an appeal from a judgment rendered by a jury in favor of the plaintiffs, the sum of $300 being awarded to Filippa Scaturro for personal injuries and the sum of $200 being awarded to Oaloggero Scaturro, her husband, for medical expenses and loss of services. The case arose out of an automobile accident.

It appears that the plaintiff Filippa Scaturro was riding in an auto truck with her brother, James Benda, who was the owner and operator of same, and was proceeding along a street in the city of Elizabeth known as Bay way road. At the intersection of Clarkson avenue and Bayway road a collision occurred between Benda’s truck, in which the plaintiff was riding, and a pleasure car alleged to be the property of Nathan Schwertzer, Incorporated. The plaintiffs, Mr. and Mrs. Scaturro, brought suit for damages against Benda and Schwertzer, Incorporated, and the judgments above mentioned were recovered against Benda alone. A nonsuit was entered in favor of defendant Schwertzer, Incorporated, by consent of plaintiffs’ counsel.

Defendant Benda appeals on several grounds — that the plaintiffs should have been nonsuited and a verdict should have been directed in favor of the defendant and that the trial court committed error in refusing to admit into evidence a certain exhibit which is printed in the state of the case and which had been marked for identification. This exhibit is a statement signed by the plaintiff Mrs. Scaturro, sworn to before a notary public, and which the defendant James Benda certifies as having been translated by him to his sister, Mrs. Scaturro (she allegedly not being able to read, write or understand the English language), signed by her with her mark in lieu of signature, and that she stated to him the statement was true. This statement, properly substantiated, was offered by the defense in evidence and rejected by the trial court on the ground that James Benda, being a defendant, “may or may not have been directly interested in shading that statement.” This was manifest error. Two witnesses in the case testified the statement was made by the plaintiff voluntarily under proper safeguards and shortly after the happening complained of; that the statement was read to her; that she said it was true, swore to it, and signed it as above indicated, whereas the best that can be made out of her testimony was that she was uncertain whether her brother had read it to her or not. The rights of the defendant were injured by the exclusion of this competent testimony. The determination of this point makes it unnecessary to consider the other grounds for reversal.

The judgment will be reversed, a venire de novo awarded, costs to abide the event.


text:
    HASBROUCK HEIGHTS HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ALEXANDER A. S. STUART, DEFENDANT-RESPONDENT.
    Submitted October term, 1932
    Decided June 21, 1933.
    Before Ju «tices Tren guard, Case and Brogan.
    For the appellant, Archie Elkins.

    For the respondent, Joseph H. Qmdielle and James A. Major.

   Per Curiam.

The instant case presents an appeal from a judgment rendered in favor of the defendant and against the plaintiff on these facts.

Plaintiff was the holder and payee of a promissory note made by the defendant on April 13th, 1932, payable seven days after date, in the sum of $500, at the Ridgefield National Bank at Ridgefield, New Jersey. The note was presented on the due date, not paid, and protested, hence this suit. Defendant says that he received no consideration for the note and manifestly he did not because the witness, “president, secretary and superintendent of the Hasbrouck Heights Hospital,” Harris Cohan, admitted the maker of the note received no consideration therefor.

The court,' sitting without a jury, found a verdict in favor of the defendant.

The plaintiff below (appellant here) appeals to this court on several grounds. Pirst, that there was an absence of proof of want of consideration. The defendant denied receipt of any consideration. Dr. Cohan, for the plaintiff, admits defendant received no consideration and the determination of the court, sitting also as a jury, that there was in fact no consideration, there being ample evidence to sustain that finding, will not be disturbed on appeal.

The second ground is that there was no proof that respondent here was an accommodation maker. In answer to this we find from the record that the respondent himself testified that he signed the note as an accommodation maker and that evidence is sufficient to sustain the court’s finding and will not be reviewed in this tribunal.

The appellant also complains that it was not permitted to cross-examine the witness, Williams, cashier of the Ridgefield bank, who appeared at the trial. This point also is unavailing to the appellant. This witness testified that no money was advanced on the note; that it was left at the bank for collection and, on cross-examination, counsel for the appellant sought to go far afield from the issue of this case which the court refused to allow, and properly so. The intended cross-examination was not a matter that had been brought out on the direct examination. The court refused to permit it, no exception was taken to the ruling, and this as a ground for appeal will not be considered.

The fourth point made by the appellant is that the court’s decision was erroneous in law. Kb reason is advanced for this challenge to the court’s findings and it will not be considered here. Klein v. Shryer, 106 N. J. L. 433; 150 Atl. Rep. 321; Booth v. Keegan, 108 N. J. L. 538.

Under the next point the appellant argues that there was consideration passing to the defendant for the making of this note. As has been pointed out, this was denied by the maker of the note, while the payee of the note, through its officers, admitted that the maker got nothing of value for the note itself. Appellant urges that Dr. Stuart, the maker of the note, was interested in the hospital project. Contrarywise, Dr. Stuart says he was not. Therefore, the fact issue was for the jury, or, in this instance there being no jury, the court, and that issue having been determined adversely to- the appellant and there being evidence to sustain it, it cannot be disturbed here. We might point out that under this last point the appellant attempts to shift positions to make the plaintiff out to be a holder in due course. Manifestly, from the facts found in the record the appellant was not a holder in due course and the appellant having tried this case in consonance with its manifest position as payee cannot now shift its position in an endeavor to make itself out as a holder in due course. Building Supply Company of Englewood v. Greenberg, 107 N. J. L. 361; 153 Atl. Rep. 581.

The judgment under review is affirmed, with costs.


author: Pee Curiam.

text:
    GEORGE FRANCIS BARLOW, PLAINTIFF-APPELLEE, v. GEORGE E. STERR, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided June 21, 1933.

      Before Justices Bodine and Donges.
    For the defendant-appellant, Mark Townsend, Jr.

    For the plaintiff-appellee, Turner & Stalter (Frank G. Turner).

   Pee Curiam.

The plaintiff was employed at a service station of the Standard Oil Company. The defendant desired to have his ear serviced. To accomplish this purpose, he was directed to drive on the usual type of lift. Plaintiff, directing the defendant, was standing behind the lift in order to see that all four wheels were in proper position. The defendant, when the car was in front of the lift, was told to drive slowly. When the front wheels were two feet from the chucks designed to hold the car in place he was requested to hold the car. Instead he applied the power and the car, with terrific speed, jumped the chucks injuring the plaintiff, who tried and failed to jump to a point of safety.

It would have been improper either to have nonsuited the plaintiff, or to have directed a verdict in favor of the defendant. It was open to the jury to find that the defendant’s lack of care was the proximate cause of the injury. The issue of contributory negligence was properly submitted to the jury.

The court declined to give the following request: “If the plaintiff violated any rule of his employer, the Standard Oil Company of New Jersey, which has been offered in evidence, as to the position he took when the defendant’s car entered upon the lift, and that violation contributed proximately to the happening of the accident, he is guilty of contributory negligence, and your verdict must be cno cause of action.’” The defendant was not prejudiced thereby. While some of the rules of the Standard Oil Company were read into the record without objection, such rules so far as we find, were not applicable. In fact, we think that the plaintiff did obey the injunction, “to stand at the rear of the lift to direct the customer.” The testimony indicates that the plaintiff stood in this very position, and further he testified that it was the only position where he could, with certainty, direct the customer so that the car could be properly placed. The jury could well find that his injuries were not due to the position he had taken, but because of the failure of the defendant to exercise that degree of care which he was under a duty to observe.

The court in the charge given instructed the jury to disregard any statements of law made by counsel and directed them that they must be governed by the law as stated by the court. By so doing any erroneous statement of law which may have been made by counsel was corrected. However, as we read the summation of plaintiff’s counsel, we do not think he transcended the proprieties in asserting what he apprehended might be the legal principles applicable to the case.

The judgment is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SEBASTIAN RUTA, PLAINTIFF IN ERROR.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.
    For the plaintiff in error, Chandless, Weller & Selser (Ralph W. Chandless).

    For the defendant in error, George F. Losche.

   Per Curiam.

The plaintiff in error was convicted of assault and battery, and sentenced to the county jail for a term of four months and was also directed to pay a fine of $200 and costs.

The case was tried before the court without a jury, a waiver having been entered pursuant to the statute (Criminal Procedure act of 1898). No stenographic record having been made, the ease was settled by the court. We have decided to consider the case upon the merits. However, in so doing we are not to be understood as holding that the appeal is properly before us.

The testimony demonstrates that one McQuaid had sold an automobile to the defendant under a conditional sales agreement. Because of an alleged default, a constable had been sent to repossess the car. While the defendant was seated in the automobile in front of McQuaid’s place of business, the constable took the ignition key. According to Mc-Quaid’s testimony while he was standing on the sidewalk the defendant, without provocation, struck him and cut his chin. The defendant, called as a witness, testified that he was willing to pay the moneys due on the conditional sales agreement, but that McQuaid would not give up certain notes secured by the agreement, unless he also paid for some repair work which had been improperly done to. another car. He said that after the ignition key was taken by the constable he got out of the car and started to follow him. Changing his mind, he decided to return to the car and when about to get into the car, McQuaid grabbed him and a struggle ensued. Another witness corroborated the defendant. As between two. conflicting accounts of an occurrence, the trial court could best determine the veracity of the witnesses. There is nothing in the record to indicate to us that the findings of the trial court were against the weight of evidence.

There is testimony that the assault occurred after the constable had possessed the car. However, we do not understand any of the testimony as indicating that the defendant was merely resisting an attempt to take property in his possession. The testimony in behalf of the defendant, at most, indicates that a scuffle ensued after the constable had possessed the ignition key and that the defendant was not the aggressor. The findings of fact were for the trial judge, and we may not reverse merely because there was a conflict of testimony.

It is argued that the trial court improperly permitted the constable to testify as to conclusions of law. Such does not appear to be the fact. The constable did say he had repossessed the ear under the conditional sales agreement, which the defendant admitted was the one under which he had purchased the car. He also went on to say just what he had done. We can see no substantial injury in the court’s rulings with respect to the constable’s testimony, or even technical error in the admission of a copy of the conditional sales agreement in evidence, since by the defendant’s own admission the copy received was a copy of the agreement under which the purchase was made.

There is nothing in the record to suggest to us that the verdict was the result of mistake, passion or prejudice.

The judgment is affirmed.


author: Pee Ctjeiam:.

text:
    THE DIAMOND RUBBER COMPANY, INCORPORATED, A BODY CORPORATE, PLAINTIFF-APPELLANT, v. PHIL FELDSTEIN, DEFENDANT-APPELLEE.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.

      For the plaintiff-appellant, Horton & Till (Randal B. Lewis).

    For the defendant-appellee, Oohn <& Kohlreiter (Peter Cohn).

   Pee Ctjeiam:.

The plaintiff sued on a book account. The defendant counter-claimed for breach of contract and resulting damages. The jury returned a verdict of no cause of action on the plaintiff’s action and a verdict of $9,326 upon the defendant’s counter-claim. The matter came before the trial judge on rule. The defendant consenting, a judgment was entered for the plaintiff in the sum of $77.15, the balance due on the book account, after conceding certain credits. Judgment in favor of the defendant was reduced to the sum of $2,000 and so entered.

The first ground of appeal is the refusal of the court to nonsuit the defendant on the counter-claim. The weight of evidence having been argued on plaintiff’s rule, we cannot consider on appeal the refusal to nonsuit even though exceptions were reserved. Catterall v. Otis Elevator Co., 103 N. J. L. 381; 135 Atl. Rep. 865.

The second ground is as follows: “The trial court admitted oral testimony to contradict and amend the written contract between the parties when no fraud or imposition was shown in securing its execution.” Obviously this is not a good ground of appeal. It refers to no testimony said to be improperly admitted. On the broad proposition that oral testimony is admissible to establish fraud in the procurement of a written contract, there can be no doubt. Dunstan Litho Co. v. Borgo, 84 N. J. L. 623. We have read the record, and so far as we can discover testimony was not admitted to alter or vary a written instrument, but for the purpose of tending to establish fraud in the procurement of the execution of the contract.

The third ground challenges the receipt in evidence of certain letters purporting to be from one Volz, district sales manager. These letters Volz said were mailed from Akron. Assuming that the ground of appeal is sufficient to challenge the receipt in evidence of undated letters, we see nothing in the point. There is no suggestion that the date was material, but if it were Volz could no doubt have furnished the approximate mailing as the letters appear to be of a circular nature soliciting trade from the defendant’s Passaic county customers for an Essex county dealer.

The fourth ground of appeal challenges an abuse of discretion in reducing defendant’s damages to $2,000. We can find no legal error indicated in the ground of appeal. Shotkin v. Arrow Sanitary Laundry, 9 N. J. Mis. R. 662. Nor is it indicated how the plaintiff was prejudiced by a reduction in the amount of defendant’s verdict.

The judgment is affirmed.


author: Pee Cueiam.

text:
    LOUIS FELDHAMER, PLAINTIFF-APPELLEE, v. LOUIS LIPSKY, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 22, 1933.
    Before Beogan, Chief Justice, and Justices Teenchaed and Case.
    Eor the plaintiff-appellee, Nicholas Martini.

    Por the defendant-appellant, Heller & Boss (Aaron Heller, of counsel).
   Pee Cueiam.

This is the appeal of the defendant below from a judgment entered on the verdict of a jury in favor of the plaintiff in the Passaic District Court.

The suit was to recover for certain work, labor and materials performed and furnished by the plaintiff at the request of the defendant.

Plaintiff was a plumber and was requested by the defendant owner to do the plumbing and heating work, with no. specific mention of price.

The evidence quite justified the verdict of the jury for $280, after giving the defendant credit for items paid on account.

Only one question is argued for reversal and that relates to the admission in evidence of Exhibits P-1 and P-& which turned out to- be carbon copies of papers which the plaintiff testified he served upon the defendant and which papers show the kind and amount of work done and materials furnished and the- charges therefor, and which he further testified he delivered to the defendant who conceded them to be correct and agreed to pay the same.

The state of the case as settled by the trial judge shows that “during the examination [of the plaintiff] the witness was shown a bill and was asked to read from it, item for item, the work done and the charge for the particular work, but before he started to read, counsel asked the witness whether he could testify from memory as to what work was done and he said he could. The witness then testified from memorj', setting forth the work which he had performed and the materials furnished and the amount charged, stating that the total charge was $263.80 for the work and materials furnished at the poultry store. He also testified that he gave the original of the bill to the defendant, Louis Lipsky, that the defendant made no objection to the charges, that the defendant promised to pay the bill, that he paid $55 on account, that the bill was reasonable and necessary and proper and that no objection of any nature whatsoever was made by Mr. Lipsky except to say that he would pay the balance later. He also testified that the bill offered in evidence was a carbon copy of the original, 'which was given to Mr. Lipsky. TJpon conclusion of his testimony, counsel for the plaintiff offered the hill in evidence. Objection was made by counsel for the defendant to the offering of the bill on the ground that it was permissible to be used only to aid the witness in refreshing his recollection and since he testified that he did not need that paper, the same was not admissible in evidence. The court overruled the objection and permitted the paper to be marked in evidence as Exhibit P-1. Exception was duly allowed to the defendant. The plaintiff further testified that he performed other work and he furnished other materials at the home of the defendant on Tennyson Place in Passaic. He testified that he did not need the copy of the bill to refresh his recollection and testified item for item the work and materials furnished by him and that the reasonable value of the same was $69.25. He further testified that the original of the carbon copy held by him was given to Mr. Lipsky at the same time Exhibit P-'l was given to Mr. Lipsky; that he, the defendant, made no objection to the same and promised to pay it and that the bill was reasonable, necessary and proper. Counsel for plaintiff offered this bill in evidence and counsel for defendant again objected for the same reason that he objected to Exhibit P-1. The court admitted the bill and marked the same Exhibit, P-& and allowed an exception.

It will be seen that the only objection to these bills at the trial was “that it was permissible to be used only to aid the witness in refreshing Ms recollection, and since he did not need that paper the same was not admissible in evidence.”

The argument now made for the first time that no notice to produce the originals was given we think cannot serve to reverse the judgment.

Moreover the.proof was ample (as we have said) that the charges — item by item — set out in these bills were proper, necessary and reasonable, and that testimony was given independent of and without any reference to the bills, and we believe that if the introduction of the bills in evidence was technically erroneous, it was not such error as was prejudicial or harmful to the defendant.

The judgment will be affirmed, with costs.


text:
    JOSEPH OKIN AND ISAAC SANDUSKY, PARTNERS, DOING BUSINESS UNDER THE NAME OF OKIN & SANDUSKY, PLAINTIFFS-APPELLEES, v. SAMUEL SHAFMAN, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 22, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the defendant-appellant, Henry P. Brown (Salvatore Mutij of counsel).
    For the plaintiffs-appellees, Marder ■& Olein.

   Per Curiam.

This is an appeal from the Second District Court of the city of Newark, the appeal being taken by the defendant from a judgment rendered by the judge sitting without a jury.

Apparently only one question is raised, namely the propriety of the denial by the judge of an application of the defendant for a jury.

The summons was returnable October 15th, and on November 24th the case was marked ready for trial, hut was not tried on that day and by order of the court it was marked “carried to November 26th.” The defendant filed a demand for a jury on November 24th and paid the fees and on the 26th the case was marked ready for trial but was not reached and the trial was again carried to the next trial day, to wit, December 1st.

It further appears that defendant renewed his demand for a jury by filing in writing another such demand with the clerk on November 28th. When the case was called for trial December 1st the defendant insisted upon a jury, but that insistence was denied by the judge “on the ground that the time fixed for trial was not the day on which the case was tried, but the original time set for trial” and he proceeded to try the case without a jury, and thereupon the counsel for defendant withdrew entirely and offered no defense. A judgment was rendered for the plaintiffs for $300 and costs.

We believe that under section 149 of the District Court act (Comp. Stat., p. 1999), as construed by our cases the judge should have allowed a jury. That section (so far as pertinent to the circumstances of this case) provides for a jury when “a demand for trial by jury shall be made, and notice thereof given to the clerk of the court at least two days, exclusive of Sundays and legal holidays, before the time fixed for trial.”

In Consolidated Gas Co. v. Blanda, 89 N. J. L. 104; 97 Atl. Rep. 769; affirmed, 90 N. J. L. 135, it was said that “the phrase “’day fixed for trial’ means the return day of the summons if trial be then had, or any later day to which the trial may be adjourned and on which day it is actually held.” See, also, Stuppiello v. Waldron, 6 N. J. Mis. R. 152; 140 Atl. Rep. 436.

The judgment will be reversed and a new trial awarded, costs to abide the event.


author: Neutze, J.

text:
    Camden City District Court.
    J. B. VAN SCIVER COMPANY, PLAINTIFF, v. GLADYS F. FLURER, DEFENDANT.
    Submitted June 15, 1933
    Decided June 23, 1933.
    For the plaintiff, Carr & Carroll (Millard Taylor).

    For the defendant, Edward Fischer (of the Philadelphia bar).
   Neutze, J.

It appears in this case that in the fall of 1928 and spring of 1929 defendant purchased from the plaintiff certain articles of furniture and had repairs made to certain property totaling $765.35. Payments were made on account of said claim to the extent of $700.08, leaving an unpaid balance of $65.27. No payments have been made on account of said claim since February 10th, 1931.

On May 3d, 1933, a writ of attachment was issued out of this court and the rugs in question were duly attached. It appears by affidavit filed in the cause that notice of attachment and a copy of the state of demand and order for hearing in the attachment proceedings were duly served on the defendant personally in Philadelphia on May 20th, 1933. The matter came on for trial on May 26th, 1933, and upon proof in open court judgment was entered against the defendant. No appearance was entered for the defendant at the said trial. On June 2d, 1933, defendant, through her Philadelphia counsel, mailed to the attorneys for the plaintiff claim of exemption. On June 6th, 1933, this court allowed a rule to show cause why the claim of exemption should not be dismissed. The present matter arises on the application to dismiss the claim of exemption.

According to the testimony of the defendant, she and her family live in the city of Philadelphia. The purchases and dealings with J. B. Van Sciver Company were made in the store of the plaintiff at Camden. Prom time to time articles have been cleaned and stored by the plaintiff for the defendant. On such occasions defendant called J. B. Van Sciver Company on the telephone of a Philadelphia Exchange, Lombard 6200. The Philadelphia telephone directory lists J. B. Van Sciver Company as follows: “J. B. VanSciver Co., furniture, carpets, draperies & interior decorations, Market St. Perry, Camden, N. J. *LOMbrd 6200.” Following the above is the note, “From o :30 p. m. to 8 :30 p. m. weekdays, Sundays and holidays call as follows.” Then follows some seven numbers with the exchange “Lombard.” The main warehouse and warehouse No. 2 are listed as Front and Arch. It is interesting to note that the Camden telephone directory, after listing similarly to the above, contains the statement, “when calling from Philadelphia — LOMbard 6200.”

Defendant contends that when she called J. B. Van Sciver Company on the telephone the rugs were stored at the Yellow Van Storage Company in Philadelphia; that she did not know where the rugs in question were to be taken; that she never asked where the rugs were to be taken; and that it made no difference to her whether J. B. Van Sciver Company cleaned and stored the rugs in Philadelphia or in Camden.

It is a fact that J. B. Van Sciver Company is a corporation of the State of New Jersey, was incorporated on June 27th, 1898, and since that time has conducted its business in the city and county of Camden, State of New Jersey. It maintains no warehouse, factory, general offices or other place of business outside the State of New Jersey, except that it does maintain a show window on Chestnut street in the city of Philadelphia. No business is carried on at this place, but all matters are referred to the Camden office. It is a further fact that all calls on the Lombard exchange are taken through the general offices of the company in the city of Camden, the company being listed in the Philadelphia directory solely for the convenience of Philadelphia customers in rendering it unnecessary for them to pay a toll charge in communicating with the offices at Camden. It appears as a fact that included in the articles attached is a certain nine by twelve rug, which was purchased from J. B. Van Sciver Company, and it further appears that a portion of the items are made up of repairs, storage and insurance. It also appears as a fact that in making payments on account of the claim the defendant gave no directions as to what articles the payments were to be applied upon.

Defendant contends, first, that the New Jersey Attachment .act relating to exemption is not applicable in the present instance ; second, that the Execution act relating to exemption is not applicable in the present instance; third, that where the property of a debtor is received in the state of the residence of the debtor for the purpose of being cleaned, and it is to be returned to the debtor at his residence in that state, the creditor cannot, without the knowledge or consent of the debtor, remove the property to a state which affords no exemption to the debtor and prevent him from obtaining the exemption allowed by the state of his residence.

With reference to the first point, the Attachment act provides for the exemption of $200 to a debtor having a family residing in this state, and further provides that no exemption is allowed for a debt incurred in the purchase of the specific goods attached. See section 36 of the Attachment act, 1 Comp. Stat., p. 148. There'is no dispute that J. B. Van Sciver Company is incorporated under the laws of the State ■of New Jersey. There is no dispute that the defendant is neither a resident of this state nor has any family residing in this state. It, therefore, appears that the Attachment act controls the present situation.

A similar provision is set forth in the Execution act. See section 10 of the Execution act (2 Comp. Stat., p. 2445), which allows an exemption of $200 to a debtor having a family resident in this state. Defendant’s second point is, therefore, not well founded.

With reference to the third point, plaintiff admits that the rugs were called for by its truck and brought to Camden in the usual course of its business, its warehouse in Camden being the place wherein all cleaning and storage of rugs was done. It denied that it had any place of business in the city of Philadelphia and claimed that the telephone directory recites no Philadelphia place of business. There can be no doubt but that the defendant knew that the J. B. Yan Server Company maintained its store in Camden and operated its general business from Camden. She testified that she did not know, never asked and it made no difference to her where the rugs were taken and stored, so long as J. B. Van Sciver Company took care of the same.

The doctrine applicable to the present case is set forth clearly in 25 Corp. Jur. 12:

“The rule that the law of the forum controls applies when a debtor endeavors to claim the benefit of the exemption laws of a jurisdiction other than that of the forum, and if there is no right of exemption under the statutes of the state in which the proceedings are brought the debtor cannot set up the exemption laws of another state of which he is a resident, unless there is something in the rule of comity between the states to require recognition of such laws.”

Defendant has not made any proof whatsoever of any principle of comity requiring the exemption laws of the State of Pennsylvania to be recognized in the instant case. At page 13 of Corp. Jur. aforesaid, the doctrine is set forth as follows:

“There is no rule of comity which demands a recognition of a foreign exemption law, particularly where proceedings are instituted by a resident creditor against a nomresident debtor.” (Italics mine.)

The citations referred to by the defendant refer to situations in which a non-resident, who is unable to secure redress in his own state, seeks to avail himself of another jurisdiction and seeks such jurisdiction with the particular purpose of evading an exemption right conferred by the state of debtor’s residence. Such would not be true in the present instance.

In the present case there is no serious contention that the claim is not an absolutely just claim and that the plaintiff, being a resident of this state, is entitled to rest upon the laws of this state in bringing the present proceeding to effect collection of its claim.

Therefore, defendant’s claim for exemption will be denied and leave given to plaintiff to proceed with the sale of the chattels to effect collection of the judgment previously entered.


author: Porter, S. C. C.

text:
    SWAN-FINCH OIL CORPORATION AND STANDARD OIL COMPANY, CORPORATIONS, PLAINTIFFS, v. WARNERQUINLAN COMPANY, DEFENDANT.
    Decided June 23, 1933.
    Por the plaintiffs, Arthur T. Vanderbilt.

    Por the defendant, John Milton.

   Porter, S. C. C.

This case was submitted to mo without a jury, by stipulation of the parties, to try the issues relating to the defendant’s legal liability.

The plaintiffs’ property was damaged or destroyed by fire which they claim was occasioned by the wrongful acts of the defendant, for which damages are sought.

The pertinent facts, briefly, are as follows:

On September 14th, 1929, the defendant had moored to its dock on the west side of Staten Island Sound in the city of Linden the wooden barge, James Horan, together with other boats. The barge had on board a cargo of about six thousand barrels of crude fuel oil. About six-thirty in the morning lightning struck the barge and ignited the oil. The fire made rapid headway. Within a few minutes flames extended from the bow to amidships and arose thirty to thirty-five feet in the air. The fire was discovered immediately, and alarms were sent both to the Linden fire department and to the New York fire department.

There was available on the defendant’s property a crew of about ten men under the charge of the night superintendent, Mr. Gifford. There were also available on the dock firefighting facilities including a quantity of foamite powder which is generally used in fighting oil fires. Preparations were made immediately to fight the fire by the men under Mr. Gifford’s direction.

About ten minutes after the fire started Mr. Gifford cast the barge adrift by cutting the hawsers which tied it to the dock. With the assistance of his men he pushed the barge out into the stream. There was an offshore wind. At the time the barge was cast adrift, the fire was still confined to the oil in the barge. No fire was afterwards communicated to the other boats or to the dock of the defendant.

Before the casting adrift of the barge, preparations were made to fight the fire. A fire hose was put into use and a stream of water was directed onto the dock. The foamite powder was not used, nor was any other effort made to fight the fire itself. Within about twenty minutes of the start of the fire, the flames spread throughout the entire length of the barge.

Almost immediately after the barge was cut adrift, a passing tug came to the dock, removed one or more of the boats, and then pushed the blazing barge across the stream to Prall’s Island some eight hundred feet distant from the dock where it had been. Later, a city of New York fire boat arrived on the scene and made unsuccessful efforts to quench the fire.

About two-thirty in the afternoon the barge, still aflame, floated with the tide away from the island. It was pursued by a city of New York fire boat, and every effort was made to keep the fire from spreading to other boats and property, and also to beach the burning barge. The barge was beached on Buckwheat Island some distance from Prall’s Island, where it remained about a half hour before it again floated away.

Finally, at about four-forty-five in the afternoon, the barge came into collision with the docks of the plaintiffs, which collision caused the blazing oil to escape from the hull and to set fire to the plaintiffs’ property. This fire spread very rapidly, and was not under control for some six hours. The location of the property of the plaintiffs is also on the westerly side of Staten Island sound, in Linden, and about two and a half miles north of the defendant’s property.

The plaintiffs charge, first, that the defendant was guilty of an actionable wrong under the circumstances in casting adrift this blazing barge; second, that the defendant was guilty of negligence in transporting inflammable crude oil in a wooden hull and mooring the boat to its dock without adequate and proper fire protection facilities; and, third, that the consequent damage was the proximate result of these wrongful acts.

The defendant argues, first, that there is no proof of negligence on its part; second, that the casting adrift of the barge was justified by reason of the inevitable necessity that existed; third, that even if such act was an actionable wrong the damage to the plaintiffs’ property was not the proximate result thereof; and, fourth, that the plaintiffs were guilty of negligence which contributed to the occurrence.

It is my opinion that the plaintiffs have established, by the clear weight of the testimony, their right to recover. The defendant’s act in casting adrift this burning cargo of oil, in order to save its own property from destruction, was a violation of a legal duty owing to the plaintiffs and others whose property was thus put in jeopardy. While it cannot be said that it was intended by the casting adrift of this barge to set on fire the property of the plaintiffs or anyone else, nevertheless it is clear that the intent of the defendant was to save its own property irrespective of any danger or consequence to the property of others. The law cannot allow one deliberately to cast upon another any dangerous instrumentality, even in self-defense, without being answerable for the natural consequences which follow. Whalley v. Lancashire and Yorkshire Railway, 53 L. J. Q. B. 285; Sherman v. Mott, 21 F. C. 1277; Vincent v. Lake Erie Transportation Co., 109 Minn. 456; 124 N. W. Rep. 221; Latta v. New Orleans and N. W. Railway, 59 So. Rep. 250. There appears to be no New Jersey decision in support of this principle of law.

If the principle be sound, as I believe it to be, then the act complained of cannot be excused because of the emergency or the necessity. Nor can it be excused on the ground that an act of God was the immediate cause of the catastrophe. It makes no difference, it seems to me, what the primary cause of the fire was. The act of casting the boat adrift was dissociated from the act of God. It was a new and different act, creating a new hazard. New Brunswick Steamship and Coach Transportation Co. v. Tiers, 24 N. J. L. 697.

I am also of the opinion that there was established, as a matter of fact, by the clear weight of the testimony, negligence on the part of the defendant. The act of using a wooden barge for the transportation of inflammable fuel oil in such a large quantity, and mooring the barge to the dock in close proximity to other shipping, without greater fire protection, and then casting the blazing barge adrift, was not the exercise of the care which ordinary prudence required under the circumstances.

There remains the question of proximate cause. I cannot agree with the defendant that the damage to the plaintiffs’ property was not the proximate and efficient result of the casting adrift of the barge. On the contrary, there was no intervening, culpable and efficient agency which broke the chain of causation, no negligence by any other actor in the premises, no elements except natural and casual ones such as wind and tide which intervened between the starting of the wrongful act and its conclusion.

I find no facts which support the charge on the defendant that there were acts of negligence on the part of the plaintiffs which contributed to the occurrence.

The verdict will be for the plaintiffs, in such amounts as may be assessed by a jury to be impaneled for that purpose.


text:
    ALBERT F. EWART, PLAINTIFF-RESPONDENT, v. DANIEL JOHNSON ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1932
    Decided June 21, 1933.

      Before Justices Tbenchaed, Case and Bbogan.
    For the appellant Evelyn Liss, Modes & Modes (Morris J. Oppenheim, of counsel).
    For the respondent, Marry B. Cooper.

   Per Curiam.

The instant case reveals judgment entered against the defendant below, only one of whom, Evelyn Liss, appeals because against her a special judgment on a mechanics’ lien claim in the sum of $375.10 was entered.

Mrs. Liss contracted in writing with Johnson, co-defendant, to have him build a house and garage on property owned by her at Bradley Beach, New Jersey. The contract, dated March 30th, 1931, was filed the same day. The consideration to be paid for the construction was $10,000, with the usual provisions that the contractor was to be paid for any extra work not provided for in the contract.

On May 25th, 1931, a supplemental contract, providing for the building of a garage, was made between the same parties. Apparently the garage originally provided for was not suitable and for this change in the contract concerning the garage an additional payment of $1,000 was to be made. This contract was filed on May 27th, 1931.

Ewart, the plaintiff below, was a painter and was hired by Johnson to do the paint work on the premises. On June 25th, he filed a mechanics’ notice of intention to make claim for work done, &c., and on October 8th, filed a lien claim within the time designated by the statute. The suit on this claim resulted in a verdict in favor of the mechanic, Ewart, and against all the defendants generally, and, as has been said, especially attaching a mechanics’ lien judgment against the property of Mrs. Liss, the appellant here.

Prior to the trial a motion was made to discharge the mechanics’ lien filed against the property, which was denied, and at the end of the case the court found, or most have found in order to justify its judgment, that the contract in question between Mrs. Liss and the builder, Johnson, was tainted with fraud.

There are six grounds of appeal urged by the appellants for a reversal of this judgment. We will only concern ourselves with one of them since that disposes of this appeal.

There was evidence pro and con that the house and garage in question would cost to build, the sum of $16,000; another witness estimated the cost at $14,000, while there was testimony presented on behalf of Mrs. Liss that the actual contract price of $11,000 was reasonable and profitable to the builder. All this, however, seems to us to be beside the question. The different estimates of the witnesses do not make out fraud. The filed contract contained information for the benefit of the subcontractors and materialmen as to the cost of the work and there is no evidence whatever to indicate, much less prove, that there was any fraud or collusion between Mrs. Liss and the builder, Johnson, which would inure to the detriment of materialmen or subcontractors.

While the building of the structure was going on, the interests of Mrs. Liss, the owner, apparently were being looked after by her husband, Dr. Liss. Now two witnesses testified that Johnson, the general contractor, had told them that Dr. Liss had offered to pay him (Johnson) an additional $1,500 if Johnson would aid Dr. Liss in defeating the claim of materialmen and subcontractors. This testimony was received by the trial court over the objection of counsel for Mrs. Liss. It is apparent from the direct and cross-examination of these witnesses that these conversations had taken place when neither Mrs. Liss nor her husband were present. It was hearsay therefore and not admissible. Our courts will not brand a transaction as fraudulent on hearsay testimony and in the absence of definite proof to sustain such a conclusion. Assuming that the testimony were proper, neither witness fixes the time as to when this alleged conversation took place with Dr. Liss in his attempt to corrupt Johnson for the defrauding of subcontractors and materialmen and again if the conversation took place after the contract were filed it could have no effect whatever upon the good faith of that contract previously made and filed. Our eases hold that the contract itself must be tainted with fraud and the record before us is devoid of testimony to prove that the filed contract between Mrs. Liss and Johnson was in fact dishonest. Coles & Son Co. v. Lothridge, 81 N. J. L. 406; 80 Atl. Rep. 484; Kosobucki v. McGarry, 104 N. J. L. 65; 139 Atl. Rep. 31.

As to the other point that the contract filed was superseded by a new and different agreement, it will suffice to say there is no proof in the record that will support this conclusion.

For these reasons, therefore, the judgment against Evelyn Liss will be reversed and a venire do novo may issue, costs to abide the event.


text:
    ELEANOR CHAPMAN, PLAINTIFF-APPELLEE, v. HARRY BURNS, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.
    For the defendant-appellant, Samuel H. Nelson.

    For the plaintiff-appellee, David Weinick.

   Per Curiam.

The only errors argued in the appeal from a judgment in favor of the plaintiff in an action growing out of a cross road accident is the failure to charge the following requests: “7. If the highway upon which plaintiff’s automobile was approaching the intersection was a ‘stop street’ at the intersection in question, then the driver of plaintiff’s vehicle was under obligation to use great care in crossing the intersection, 9. If you should decide against the plaintiff in this case, that does not mean that the plaintiff is without further relief, as she may still recover against the driver of the automobile wherein she was a passenger, if said driver was negligent.”

As to request No. 7, the argument seems to be that the defendant could use less care because the driver of plaintiff’s car must use great care. It is said, the quantum of care required of the operator of the vehicle wherein the plaintiff was a passenger determined relatively the quantum or degree of care that the defendant was under obligation to use. The defendant’s obligation was to use that degree of care as was commensurate with the risk of danger. Senofsky v. Frecker, Atl. Rep. 797. On the issues as framed the negligence of the driver of the car in which plaintiff was riding would not bar her recovery if her injuries were the natural and proximate result of defendant’s negligence. It, therefore, seems that any charge as to the care required from the driver of the car in which plaintiff was riding would have been improper. The trial court made it perfectly clear that liabilty must rest upon proof that the defendant failed to exercise a degree of care commensurate with the risk of danger. Beyond that he was not obliged to go.

As to the ninth request, we need only say it was properly refused. A trial court is concerned only with the law of the case before it, and has no knowledge as to what may occur in another action to be thereafter commenced.

The judgment is affirmed.


text:
    ANNA B. HUMPHREYS, INDIVIDUALLY AND AS EXECUTRIX, ETC., PLAINTIFF-RESPONDENT, v. HUMPHREYS & RYAN, INCORPORATED, A CORPORATION, AND DENNIS J. RYAN, DEFENDANTS-APPELLANTS.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.
    Bor the defendants-appellants, David T. Wilentz.

    Bor the plaintiff-respondent, John O. Stochel.

   Per Curiam.

The defendant appeals from an order striking its answer and entering judgment for the plaintiff. The action was brought for the reasonable value of the use and occupation •of premises known as No. 74 Main street, Woodbridge, New Jersey. The complaint alleges that the reasonable value was $320 a month. Judgment was entered for rent at the rate of $333.34 a month. Affidavits of realtors indicated $175, $190, $280 and $290 a month as a reasonable rental. The answer denied the allegation that $320 was the reasonable value of the use and occupation. Such denial seems neither sham or frivolous. The issue was clearly for the jury and not for the court.

The judgment is reversed.


text:
    HARRY AUDINO, BY HIS NEXT FRIEND, ETC., PLAINTIFFS-APPELLANTS, v. HAROLD HANTMAN ET AL., DEFENDANTS-APPELLEES.
    Submitted January term, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.
    For the plaintiffs-appellants, Gelizeiler & Honigfeld (Isidor Kalisch).

    For Harold and Baymond Hantman, William P. Braun.

    For Carmine Haturale, Reginald V. Spell.

   Per Curiam.

The plaintiffs appeal from a judgment of no cause of action. The case was tried before a jury. Dr. Hantman loaned his car to his brother, who was to drive it to school and after school take it to a garage for some minor adjustments. He was then to bring it home. Young Hantman invited the plaintiff Audino, a school friend, to go with him to the garage, and after the adjustments were made was driving to Audino?s home when the accident occurred at cross streets. Hantman was coming out of a stop street when the car he was driving was struck by a car owned and operated by the defendant Waturale. There was a nonsuit as to Dr. Hantman.

The defendants Hantman and Maturate attribute the accident to the negligence of the other. Further, Maturale, in his answer, and by. his proofs, tried to show that the accident was due to the contributory negligence of the plaintiff. Audino had relatives living in the vicinity of the accident. He was familiar with the intersection of the cross streets and knew that there was a stop sign which, on the day of the accident, was obstructed by a parked truck. He was not-a motorist, but he did know that Hantman was not familiar with the place where he lived and paid no attention to the manner in which the car was being driven and gave no warning of the stop sign.

Error is alleged in the following portion of the court’s charge: “If he [the passenger plaintiff] did see the truck standing there and he did know that the stop sign was there, and if he did observe that the driver was passing the stop sign, then he was under a duty to call the driver’s attention to the fact the stop sign existed at that point.”

A charge must be looked at and construed as a whole. The court charged that the defendant had the burden of establishing contributory negligence and went on to say: “It is claimed by the defendants that this young man, if negligence existed, was himself guilty of contributory negligence, and, as 1 said, if he is shown to be in such posture he cannot recover. Mow, let us see on what that claim is based. It appears that there was a truck standing at this corner and there was also a stop sign, and it appears that the truck obstructed the view of the stop sign. It also appears that this young man, infant, Harry Audino, was familiar with that location. Of course, in approaching that location, the presence of a stop sign in a position to be seen would place upon the driver an obligation to stop. This young man was a passenger. The infant says that he saw the truck standing there. If he did see the truck standing there and he did know that the stop sign was there and if he did observe that the driver was passing the stop sign, then he was under a duty to call the driver’s attention to the fact that the stop sign existed at that point. Whether any of those things existed is a question of fact. That is for you gentlemen to determine and not for the court. That is the claim, that he saw the truck, that he knew it obstructed this stop sign and that the driver did not stop and that he was under a duty to call it to his attention. Whether that constitutes negligence or not, assuming those to be the facts, and assuming that you so find them, is a question for the jury, taken into consideration with all the other facts and circumstances in the case, and, us I said before, if you find upon all the facts that this young man, this infant, was guilty of contributory negligence, there ■can be no recovery.”

From our reading of the charge, it is perfectly apparent that the negligence which can be the basis of recovery and the contributory negligence which will bar recovery, must be the proximate cause of that which occurred. Audino was under a duty to exercise ordinary care for his own safety. Mittelsdorfer v. West Jersey and Seashore Railroad Co., 77 N. J. L. 698; 73 Atl. Rep. 538. It was a question of fact for the jury whether he negligently disregarded this duty. Baus v. Trenton and Mercer County Transportation Corp., 102 N. J. L. 1; 131 Atl. Rep. 92. There certainly was no error in leaving this question to the jury in the manner adopted by the trial judge.

There is no merit in the assertion, in view of the foregoing, that the trial judge improperly charged as follows: “This young man riding in this car as an invitee is not liable for the negligence of the driver of that car unless in the connection of contributory negligence, which I have indicated to you, but in the absence of such circumstances, he is not responsible for the negligence of the driver of the ear he is in.”

The proofs indicate to us that the nonsuit as to Dr. Hantman was proper, because by the undisputed testimony, his brother was not engaged in any work for him at the time of the accident but was on an errand of his own.

We find no merit whatever in the assertion that the trial ■court erred in not charging plaintiffs’ second request.

The judgment is affirmed.


author: Pek CtTBIAM.

text:
    BERT TRUSSELL, BY HIS NEXT FRIEND, HELEN TRUSSELL, AND HELEN TRUSSELL, PLAINTIFFS-RESPONDENTS, v. JOHN GIBSON, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodine and Donges.
    For the defendant-appellant, Arthur T. Vanderbilt.

    For the plaintiffs-respondents, David Gohn.

   Pek CtTBIAM.

The plaintiffs sued to recover damages suffered by reason of injuries sustained by the minor plaintiff by reason of being struck on the highway by defendant’s car. The proofs examined indicate that the issues of negligence and contributory negligence were properly for the jury. The accident occurred on a foggy, stormy night. The defendant could hardly see above the headlights and struck the minor plaintiff, who was crossing the highway making the best observation he could for his own safety. He heard no sound or warning and saw no lights. The case was properly submitted to the jury. Brotman v. Doan, 105 N. J. L. 132; 143 Atl. Rep. 328.

The court charged the following request: “Automobiles although not generally held to be dangerous instrumentalities per se have dangerous characteristics and when not properly and carefully handled by competent persons become, under certain conditions, highly dangerous instruments and a public nuisance.” As a legal proposition this is so. Wilson v. Brauer, 97 N. J. L. 482; 117 Atl. Rep. 694; Sheridan v. Arrow Laundry Co., 106 N. J. L. 608; 146 Atl. Rep. 191. Perhaps this proposition of law did not apply to the facts as developed in this case, but as we view the entire charge the jury could not have been misled by the statement complained of. Lenz v. Public Service Railway Co., 98 N. J. L. 849; 121 Atl. Rep. 741.

The judgment is affirmed.


text:
    BEATRICE JOURNEY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EDWARD WIERBICKI, DECEASED, PLAINTIFF-APPELLEE, v. DANIEL ZAWISH, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided June 21, 1933.
    Before Justices Bodies and Donges.
    Eor the defendant-appellant, Holmwood <& Creighton (William E. Holmwood).

    Eor the plaintiff-appellee, Kessler ■& Kessler (Samuel I. Kessler).

   Per Curiam.

The sole ground of appeal in this case is that the court erred in charging the plaintiff’s request respecting the doctrine of res ipsa loquitur. It is conceded that the request was flawless as a statement of law, but it is said that the doctrine was inapplicable to the facts proved and, therefore, the defendant was prejudiced.

The plaintiff’s intestate, with the defendant and another friend, had been to a rabbit dinner. On their return, the defendant’s ear, in which the three young men were riding, was wrecked and the plaintiff’s intestate killed. The plaintiff’s proofs indicated that the defendant once said he had lost consciousness and control of the wheel. Of course, as a witness, he testified he was struck by another motorist and had never made the admission testified to. The issue of negligence was obviously for the jury. The circumstance that plaintiff’s intestate was riding with the defendant, when the defendant’s car overturned might result in a presumption of negligent operation. Mackenzie v. Oakley, 94 N. J. L. 66.

The trial court properly charged that the burden of proof never shifted and that the plaintiff must establish his case by the fair preponderance of evidence. Obviously there was no prejudicial error in charging the doctrine of. res ipsa loquitur. The charge, as a whole, was a well balanced exposition of the law.

The judgment will be affirmed, with costs.


text:
    SYLVIA COHEN, BY HER NEXT FRIEND, WILLIAM COHEN, WILLIAM COHEN, INDIVIDUALLY, AND WILLIAM COHEN AND IDA COHEN, HIS WIFE, JOINTLY, PLAINTIFFS, v. NEW JERSEY AND NEW YORK RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Argued January 17, 1933
    Decided June 22, 1933.
    Before Bkogan, Chief Justice, and Justices Teenchakd and Case.

      For the motion, Hobart & Minard (George S. Hobart and Ralph E. Cooper, of counsel).

      Contra, Ward & McGinnis (Peter J. McGinnis and Louis Santorf, of counsel).
   Per Curiam.

To this case the defendant moves for final judgment. The files of this court and the record exhibit this situation: The ease was a Supreme Court issue and was referred for trial to the judge of the Passaic Common Pleas Court as acting Circuit Court judge pursuant to the statute. At the first trial before him there was a verdict for'the plaintiffs and the defendant applied for and obtained a rule to show cause why it should not be set aside, returnable before the trial judge, and after argument that rule was made absolute and a new trial granted. At the second trial before the same judge, to whom the matter had been regularly referred, the plaintiffs again recovered a verdict and themselves obtained a rule to show cause why it should not be set aside as inadequate, returnable before the trial judge (and that rule has not as yet been argued). Thereupon the defendant obtained and entered a postea and entered thereon a judgment nisi. Defendant then gave notice of this motion before this court for the entry of final judgment.

The only basis of defendant’s motion is its contention that chapter 356 of Pamph. L. 1931, pursuant to which the trial judge made the rule returnable before himself, is unconstitutional.

In opposition to the motion the plaintiffs argue that defendant has no right under the rules and practice to insist that a final judment be entered in favor of plaintiffs and against itself, and cite Van Houten v. Campbell, 153 Atl. Rep. 391. Again in opposition the plaintiffs argue that the defendant, having itself obtained a rule under and pursuant to the act of 1931, it cannot now come in and say that such act is unconstitutional; that by having obtained the first rule, and having argued and obtained thereunder a new trial, and having participated in the new trial, it waived whatever right it may have had to claim that the statute was unconstitutional; and plaintiffs cite Venghis v. Commonwealth Casualty Co., 101 N. J. L. 151; 127 Atl. Rep. 158.

But these questions, in the view we take of the case, we think need not now be answered. We think that so far as the Supreme Court is concerned, it has more than once in effect determined that the power vested by the act of 1931 in the Circuit Court judge to make a rule to show cause why the verdict should not be set aside, returnable before himself, was properly exercised, even against the objection that the act is unconstitutional. An instance of such decisions is to be found in the case of O’Donnell, Admr., &c., v. Laggren Bros. Co., where, after the Circuit Court judge had made a rule returnable before the Supreme Court, the Supreme Court by order of June 27th, 1932, ordered that the rule to show cause be modified, making it returnable before the judge of the Circuit Court who tried the case, in accordance with the statute; and that case is now pending in the Court of Errors and Appeals as No. 75 of the February term, 1933, where the validity of such action is challenged.

In view thereof we think the motion for the entry of final judgment now before this court should be denied, and it is denied accordingly.


text:
    HERMAN A. GROSS, PROSECUTOR, v. NEW JERSEY STATE BOARD OF OPTOMETRISTS, RESPONDENT.
    Submitted January 27, 1933
    Decided June 29, 1933.

      Before Justices Parker, Lloyd and Heher.
    Por the prosecutor, Jerome G. Eisenberg.

   Per Curiam.

This writ brings up an order made by the respondent board, revoking the certificate of the prosecutor as an optometrist, after charges and a hearing pursuant to the statute. Pamph. L. 1914, p. 448. The revocation is attacked as illegal, on the ground that the charge on which it was based was preferred by the secretary of the board, and that said secretary sat on the hearing and participated in the decision. It is claimed that he was disqualified from sitting, and that his participation vitiated the result.

To this we do not agree. The complaint was one in which the secretary had no personal interest, and was formally made by him qua secretary. The statute expressly provides that charges may be preferred by any person or corporation or the board may on its own motion, direct its secretary to prefer said charges, section 11. Counsel for the prosecutor brought out the fact that the secretary had brought the complaint as a result of conference with the members of the board, and on behalf of the board. The complaint was thus as much theirs as his, and in that aspect expressly countenanced by the act. Moreover, it was based on matter of public record, viz., conviction on an indictment for a criminal offense, as expressly contemplated in section 11. The secretary further testified in response to a question by prosecutor’s counsel, that he had absolutely no personal interest in the matter. He was a member of the board as well as secretary. The act does not intimate that when he prefers charges he should not hear them; in fact, a certificate is revoked only by unanimous vote of the board sustaining the charges (section 13). We are clear that the secretary properly participated in the hearing.

The writ will be dismissed.


text:
    HARRY ASHENDORF, PLAINTIFF-RESPONDENT, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 29, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the appellant, Frederic B. Scott.

    For the respondent, Harry R. Rinshy (James M. Reilly, of counsel).
   Per Curiam.

This is defendant’s appeal from a judgment for the plaintiff entered by the District Court judge in an action brought by the plaintiff, who was injured while on a ferry boat of the defendant operating between Hoboken and New York City.

It appears that the plaintiff entered the ferry boat in an automobile which he parked in one of the runways of the boat. While the automobile was so parked, under the necessity of finding a toilet, plaintiff left the automobile and went to the forward part of the boat, thirty or forty feet from the car. When the boat approached the New York slip, he started to return to his car and fell down an open coal hole and was injured.

The case was tried before a- jury and decision was reserved by the judge, and later decided in an opinion in writing. The record was silent as to any consent to a dismissal of the jury. The plaintiff alleged a diminution of the record and obtained an order for the trial judge to certify, and the judge certified the fact to be this: “At the close of the testimony for both plaintiff and defendant, their respective attorneys consented to the dismissal of the jury, and the jury was thereupon dismissed by me.” That proceeding was in accordance with the practice. Pamph. L. 1902, p. 566.

Upon that certificate coming in from the trial judge, the defendant obtained an order for the purpose of taking depositions to contradict the certificate of the trial judge in that respect. But those depositions are not properly before the court. “On rule [to certify] his [the trial judge’s] return will be conclusive, and cannot be contradicted by affidavits.” Benedict v. Howell, 39 N. J. L. 221, 225. The reason for the rule was stated by Mr. Justice Lloyd in Grossman v. Brick, 5 N. J. Mis. R. 1016; 139 Atl. Rep. 490, to be “that such a practice would result in amending the record without giving the judge upon whose certificate the record is verified an opportunity to be heard, and would be wholly subversive of the administration of justice.”

We come then to the record as certified by the trial judge.

The defense was based upon the theory that the law of the State of New York controlled, and that under the laws of New York the plaintiff was guilty of contributory negligence which defeated plaintiff’s recovery.

In pursuance of such theory the defendant called a witness to prove the New York law. That witness testified to this and only this (we quote his testimony exactly) :

“Section 872 of the Penal Law, Motor Yehicles and Perry Boats, is, that a chauffeur or operator in charge of a motor vehicle who leaves it unattended at any time when being carried on any ferry boat operating in New York State or between this state or another state of from two to five hundred thousand inhabitants or over, is guilty of a misdemeanor. Within the meaning of this section a motor vehicle left unattended, unless such chauffeur or operator in charge is on or immediately near such motor vehicle and at a place which affords free and immediate access of the operating, guiding and braking appliances.”

We think that at best for the defendant the question whether or not the plaintiff was guilty of contributory negligence was a jury question.

It will be observed that the statute as proved provided that the “operator in charge of a motor vehicle who leaves it unattended is guilty of a misdemeanor.” We think it was open to the judge, sitting without a jury, to conclude that the mere fact that the plaintiff left the automobile unattended did not contribute to nor was it the proximate cause of the accident. Muller v. West Jersey and Seashore Railroad, 99 N. J. L. 186; 122 Atl. Rep. 695; Wiley v. West Jersey Railroad,, 44 N. J. L. 247; Powers v. Standard Oil Co., 98 Id. 730; 119 Atl. Rep. 473.

The judgment will be affirmed, with costs.


text:
    ANTHONY W. MAFFEY, PLAINTIFF, v. TONY FASCEON, ALSO KNOWN AS TONY FASGINO, DEFENDANT. JOHN WAGNER, PLAINTIFF, v. TONY FASCEON, ALSO KNOWN AS TONY FASGINO, DEFENDANT.
    Submitted January 30, 1933
    Decided June 29, 1933.

      Before Brogan, Chief Justice, and Justices Trenchard and Case.
    Bor the plaintiffs, Maurice Grossman (Sara V. Dunn, of counsel).
    Bor the defendant, no appearance.
   Per Curiam.

The actions with which we are now concerned were each begun in the Supreme Court by plaintiffs who claimed that they were passengers in the defendant’s automobile and were injured through the negligence of the defendant.

These two motions, argued together, are in precisely the same posture both with respect to the facts and as to the legal situation, and are not resisted, although due notice thereof was given to the defendant.

It appears that through the default and neglect of plaintiffs’ attorney (not plaintiffs’ present attorneys) who was in charge of these suits, the cases were never in a situation to be legally noticed for trial by reason of the absence of papers from the files and other reasons not necessary to be detailed. They were, however, noticed for trial at the Hudson Circuit by the former attorney, and, after being carried on the list from term to term with no appearance, the judge at Circuit nonsuited the plaintiffs. Upon the plaintiffs’ learning of that fact, and after an investigation which demonstrated the neglect, failure and default of the former attorney, plaintiffs undertook to secure, and did secure, a substitution of attorney, and the present counsel, immediately upon such substitution, applied to Chief Justice Gummere for and was granted a rule to show cause why the judgments should not be set aside, and that rule was served upon the defendant. Thereunder depositions were taken by the plaintiffs, without any appearance of the defendant, and those depositions seem to demonstrate the fact of the default, failure and neglect of the former attorney, the fact that the case was improperly noticed for trial, the fact that both plaintiffs have a cause of action against the defendant and the fact that if plaintiffs cannot succeed in setting aside these judgments of non-suit their respectiye causes of action will be barred by the statute of limitations.

In such circumstances we think that pursuant to the powers conferred upon us by section 112 of the Practice act {Comp. Stat., p. 4087), as construed by our cases, the judgments of nonsuit in both cases should be set aside and the plaintiffs permitted to proceed further in accordance with the rules; and it is so ordered, but without costs on this motion.