author: Ziegener, J. C. C.

text:
    IN THE MATTER OF THE ESTATE OF RICHARD SCHLEMM.
    Hudson County Court Probate Division
    Decided January 2, 1951.

      Mr. Peter Bentley, for the beneficiaries.

      Mr. William H. Speer, for the trustee.
   Ziegener, J. C. C.

This matter comes before the court on exceptions by the beneficiaries to the fourth intermediate account filed by the trustee, The Trust Company of New Jersey, on June 6, 1939, and on exceptions to the master’s report by the beneficiaries and the trustee, filed herein on November 1, 1949. It is apparent that the great delay in bringing the matter to a conclusion was due to the extensive hearings and voluminous testimony taken before the master, but the present rules of court will preclude such a lapse of years before a matter is determined. Upon the filing of the exceptions to the account the matter was referred to the master, who commenced hearings on September 17, 1941, and concluded same on August 28, 1948. Subsequent to the filing of the master’s report that trust beneficiaries and the trustee filed exceptions thereto, and final argument was had before me on October 16, 1950.

The trust here involved was created by Dr. Richard Sehlemm, who died on October 3, 1920, leaving a last will and testament which was admitted to probate on October 15, 1920. The residuary clause of said will provided that “All the rest, residue and remainder of my estate, real and persona], and wheresoever situate, I give, devise and bequeath to my executor hereinafter named in trust, for the following uses and purposes — then the purposes were stated. The Trust Company of New Jersey was named executor, and consequently acted as trustee. Said company conducted a general banking business in Jersey City, N. J., and as a component part thereof had a trust department equipped to handle trust estates such as this. The decedent had been affiliated with many banking institutions during his lifetime, and some of these institutions subsequently merged into the Trust Company of New Jersey, the trustee herein, and of which institution decedent was a vice-president and director. The major portion of the trust estate consists of stock in that company. The trust provisions of the will allocated four-fifths of the balance of income to decedent’s wife, and one-fifth to his son, Ridgley, and provided that upon the death of the wife and son, the balance of the assets and income remaining should be paid over to the issue of Ridgley, and Ridgley’s wife was to receive $15,000. Ridgley, the son, died on August 22, 1928, and Dr. Schlemm’s wife died on November 7, 1940. Ridgley left him surviving his wife, Lillian M. Sehlemm, a daughter, Anne Sehlemm (now McEllen), and a son, Richard Sehlemm, all of whom are the beneficiaries herein.

The decedent left two certificates of the Trust Company of New Jersey stock totaling 233 shares, par value $100 each, carried at a value of $340 per share, or a total value of $79,220. The accounts filed by the trustee, prior to the one herein, showed various stock dividends, subscription warrants, and a reduction in par value of the shares and reissue thereof, so that when the third account was filed there were a total of 2,304 shares, par value $25 per share, and carried at $53.15 per share, .or a total value of $122,461.

The three accountings filed in 1922, 1926, and 1930, respectively, were approved by the Orphans’ Court, and the trust beneficiaries subsequently sought to have them reopened by rule to show cause, alleging irregularity, neglect, default, mistake and fraud. This action was taken merely to reopen said accounts and not to surcharge the trustee. The court, on September 30, 1938, dismissed the rule to show cause on the ground that no fraud or mistake was shown to justify setting aside the decrees approving said accounts. On appeal to the Prerogative Court this action was sustained. In re Schlemm, 130 N. J. Eq. 295 (1941). Therefore, I will start with the premise that the value of the 2,304 shares of The Trust Company of New Jersey stock, at the outset, was $122,461, and the total value of 45 shares of Colonial Life Insurance Company stock, also left in the trust estate by decedent, was $13,850, as shown by the third account. On this fourth account the 2,304 shares of The Trust Company of New Jersey stock were listed at a total value of $2,304, at a value of $1 per share, and the stock of the Colonial Life Insurance Company at a total value of $6,750. So, in the ten-year period between the filing of the third and fourth accounts, 1929 to 1939, the Trust Company stock decreased in value by $120,157, and the insurance stock decreased in value by $7,100.

Decedent’s will authorized the trustee “to receive, hold and manage said residuary estate, to invest and re-invest the same, and collect and receive the income therefrom during the life of my wife, Josephine Schlemm,” and to pay out income as hereinabove stated. In addition, he authorized the “executor and trustee, in its discretion, to retain any investments and securities which I may own at my death, notwithstanding they may not be of the class in which by law trust funds may he invested.” The trustee alleges that the provisions of R. 8. 3 :16-12 are applicable in this case. Said statute provides that “when a testator has invested in municipal bonds, or in bonds secured by mortgages, or in bonds or shares of stock of a corporation, and the same comes into the hands of his executor, administrator with the will annexed, or trustee, to be by him administered, such fiduciary may, in the exercise of good faith and reasonable discretion, continue such investments and in such case he shall not be accountable for any loss by reason of such continuance.” (P. L. 1899, p. 236; C. S., p. 2271, § 34.) The trustee contends it complied with said statute and in support thereof argues that its trust department was well managed; that the testator chose the stock himself; that the opinion of the directors and officers was made in good faith; the financial conditions prevalent in the world after 1929; the stock market crash; the national banking holiday and the worldwide economic depression.

The master’s report, filed November 1, 1949, advised and reported that the trustee should be held responsible for the-depreciation of the stock and fixed the liability as to the Trust Company of New Jersey stock as the difference between $32 per share, the high value for the year 1933, and $1 per share, as shown by the fourth account; that the trustee be surcharged with the loss of income on said stock from October 1, 1933, which was the last date any dividend was paid on the stock; that the trustee be charged with simple interest on said stock from October 1, 1933, at the rate of 3% per annum; that the trustee be held for the difference between $13,850 and $7,100, a loss of $6,750, on the Colonial Life Insurance Company stock. (This is evidently a transposition of figures, as the account shows the present value as $6,750, and the third account a value of $13,850, which would be a loss of $7,100.)

The lengthy exceptions by both the trustee and the beneficiaries to the master’s report can be concisely stated as follows: The beneficiaries contend that the trustee should be liable for the difference between $150 per share and $1 per share on the bank stock; that the interest thereon should be 6% per annum from December 31, 1930; that the trustee should be surcharged the difference between $58,500, the alleged value of the insurance stock, and $6,750; that the trustee could and should have applied to the court for advice; that the trustee continued to hold shares of its own stock in the trust with the full knowledge that they were dropping in value and were bound to become valueless, or at most worth $1 per share; that the trustee, without legal right, or notice to the beneficiaries, by illegally voting the estate’s stock of said trustee, reduced the par value of the 2,304 shares, of a par value of $25 each, to a subsequent par value of $2.50 per share, in three steps; that the fact the directors and officers of trustee have continued to hold their own shares of this stock is immaterial in this proceeding; that the trustee ignored the steady depreciation of its stock, attempting to save itself at the expense and loss of the beneficiaries; that the trustee caused great financial loss to the estate; that the trustee fraudulently mismanaged the trust for its own personal aid and gain, and subordinated the cestui’s interest to its own; that trustee permitted ten years to elapse between filing the third account and the one here questioned, and took no steps to protect said stock held by the estate, but did actively, fraudulently, and for its own benefit, separate and apart from any interest in said estate, conjure a plan or scheme whereby all value to said stock would, and did, disappear, solely in an effort to save said trustee. In brief, the beneficiaries allege that as a result of the actions of the trustee they suffered great loss, and the master should have advised that the trustee be surcharged a greater amount as justified by the evidence. The trustee alleges that the master was not justified or warranted in holding the trustee liable for any surcharge, and cites many authorities in various jurisdictions to uphold its contentions that the master erred in concluding that the crisis of 1929 could not rationally be envisioned as of a “temporary character” after about three years, and would transmute an authorized and legally authorized continued holding into an investment; and trustee further contends that these conclusions fly violently in the face of both factual and legal principles; that it was under no duty, or obligation, to appeal to the court for instructions or directions, and not doing so was not, in itself, evidence of negligence.

What was the duty of the trustee in this case ? As a matter of public policy and consistent with the decisions of our courts it is well settled that a trustee is under a duty to the beneficiaries, in administering a trust, to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property; and if the trustee has greater skill than that of a man of ordinary prurience, he is under a duty to exercise such shill as he has. Restatement of Trusts, § 174; Ross v. Savings Inv. & Trust Co., 123 N. J. Eq. 288, at page 291 (E. & A. 1938). A stricter standard of care and skill is applicable to corporate and other professional trustees than that which is applicable to individual non-professional trustees. (See Scott, Trusts, § 174.1.) An in cases wherein the trustee is administering an estate in which the major portion of the assets is stock in his or its own company, the standard of care must be even greater than in any other case. A trustee, in such an instance, cannot manipulate the stock to his own advantage, and to the detriment of the beneficiaries. A trustee cannot serve two masters, and when he does, he is disregarding the welfare of the trust. A trustee cannot look to his own interest as against that of the trust beneficiaries.

Now, the issue becomes fundamental: Did the trustee exercise the degree of care required of it with reasonable discretion and good faith in administering the trust ?

There is no question that the decedent gave wide latitude to the trustee in his will, as previously stated. In addition, decedent had made the investments himself during his lifetime, and expected that the trustee would continue same. However, it was certainly not his intention to have said trastee retain the stock until same was worthless, or almost so. It appears to me that the trustee, at least, should have applied to the court for instructions, or advice, when it found itself in a dilemma concerning the stocks. And even assuming that the trustee felt that the economic crisis of 1929 was only temporary in character, immediate subsequent events did not justify its continuing that conclusion, yet the trustee continued to hold the stock and made no attempt to save the beneficiaries. Can it now be said that this action was justified? To the contrary, the trustee showed an absolute lack of good faith and reasonable discretion. As stated by the court in Shanley v. Fidelity Union Trust Co., 108 N. J. Eq. 564, at page 565 (Ch. 1927), and recently reiterated by our Supreme Court, in Liberty Title and Trust Co. v. Plews, 6 N. J. 28 (1950) :

“They are our trustee and the law demands of trustees the utmost fidelity. It does not tolerate personal dealing with the trust estate nor permit the making of a penny’s profit. The rule is grounded in sound morals and is reflected in the supplicating words of the Lord’s prayer, ‘Lead us not into temptation.’ ”

Certainly the trustee had no right to vote the shares of its own stock, in the trust, for the purpose of obtaining a loan to carry on its banking operations. It is apparent that the trustee bank’s financial structure was in jeopardy at the time this stoek-was voted, but if the trustee had attempted, in good faith, to dispose of this stock prior thereto, that question would never have arisen. The Shanley case, supra, is comparable to the situation herein. In that case the trustee bank threatened to sell stock of another company held in the trust, and some of the directors of the trustee were also directors of that company. On objection by the beneficiaries the court held that “the directors of our trustee are in conscience bound to consider only the welfare of our wards and strive for the best price obtainable.” Said trustee bank was also interested in securing the most favorable terms for the company, due to the directorship situation, when attempting to sell the trust stock, and the court said: “In the dilemma in which it found itself the course open to our trustee was to apply to the court for instructions, not to compel our wards to appeal for protection.” In the present case the trustee herein continued to hold the stock with knowledge that the value was steadily decreasing, and decreasing by the trustee’s own action. When the assets and liabilities of the trustee, as well as its surplus and undivided profits, were dropping from 1933 to 1939 they were further warned that the value of the stock was diminishing, and still they did nothing. The trustee cites the ease of In re Cross, 117 N. J. Eq. 429 (E. & A. 1935), as authority for demolishing the holding of the Shanley case, supra, as to the requirement of a trustee to apply to the court for instructions. The Cross case is not on all fours with the Shanley case (the facts of the latter having already been recited herein) nor is it the same as the present case. In the Cross case the trustee could not sell the corporate securities in the trust (which were not those of the trustee itself) without the approval and designation of decedent’s brother. As to the latter, the court said (at page 433) : “He had nothing personal at stake. He was holding * * * for the better prices that he was sure the stocks would reach.” The converse is true in the Shanley case, where the trustee, a bank, wanted to sell the trust stock and at the same time wanted to buy it at the lowest price to benefit another interest. In other words, they wanted to do right by both sides, without any legal reason for acting against the interest of the trust beneficiaries. The Shanley case was not altered by the decision in the Cross case, and the latter does not have any bearing on the trust here in question. It must be remembered that the major portion of the stock in this trust was that of the trustee itself.

Who knew the day-to-day situation of this stock? Who knew that the stock was consistently declining in value? Who knew that the stock manipulations of the trustee bank would lessen the value of the shares of trust stock? The answer to all these questions is, the trustee. And knowing all these things the trustee still did nothing. When days, weeks, months, and years began to go by and the stock continued downward, the “temporary character” of the financial crisis had become somewhat extended. When the trustee intended to manipulate its stock to benefit its financial structure, and later voted the trust stock for that very purpose, it knew that virtually all of its securities, including those in this trust, were assigned to the federal agency which loaned it money. It is apparent the trustee was only interested in continuing banking operations, which was a logical personal action, but at the same time it decided, evidently, that the trust could remain in statu quo to await the eventual outcome. The conduct of the trustee indicates that it intended to keep the stock in the trust regardless of the outcome. If the trustee had the welfare of the beneficiaries in mind, which it should have, the least it could have done was to apply to the court for advice or instructions. Such actions by a trustee, as evidenced in this case, cannot be condoned, especially where the stock of the trust estate is predominately stock of the trustee itself. In my opinion, the trustee herein did not comply with the duty imposed upon it to act in good faith and with reasonable discretion. The trustee was guilty of self-interest, self-dealing and flagrant mismanagement of this estate. (See Liberty Title & Trust Co. v. Plews, supra.)

I will approve the master’s report in so far as liability is imposed upon the trustee as to the Trust Company of New Jersey stock in the trust, but have come to a different conclusion as to the amount thereof. I am satisfied there was a market for trustee’s stock during the years 1929 through 1940, as indicated by the testimony of Mr. Dwyer of Bailey & Dwyer Co., investment and security brokers. The fact that only 324 shares of this stock were sold in 1929, 289 shares in 1930, 697 in 1931, and 1,239 in 1932, through Bailey & Dwyer Co., does not necessarily indicate that there was a shallow market for this stock. We have no way of knowing whether or not anyone desired to sell any more shares than that number each year, or whether or not they could be sold. However, these sales do indicate that'during 1930 stockholders were retaining the stock, because less shares were sold in that year than in 1929, possibly to await the trend thereof and in an effort to ascertain whether or not the crisis was of a temporary character. And although it is evident that more shares (5,265) were sold by Mr. Dwyer’s firm during 1933 than any other year between 1929 and 1940, the trustee must have known that almost two and one-half times as many shares were sold in 1931 than in 1930, indicating that many more stockholders were concluding that this “temporary crisis” was going to be quite lengthy. And further justification for reaching that conclusion can be found in the sale of twice as many shares in 1932 as in 1931, of which the trustee must have had knowledge; they were its own stocks. The trustee sought to show that an offer to sell 20,000 shares (approx.) of its own stock, held in various trusts, would cause the value thereof to go lower. However, our only concern is the 2,304 shares held in this trust. No one can accurately predict what would have developed had these shares been offered for sale. The fact remains that they were not. I therefore find that the trustee should have disposed of the 2,304 shares of The Trust Company of New Jersey stock, in this trust, during the year 1932, and it will be surcharged the dilference between $53 per share, the high value for that year, and $1 per share, the present value.

I will approve the master’s report as to the interest to be charged on the above stock, i. e., at the rate of 3% per annum, simple interest, from October 1, 1933, the date of the last dividend on the stock. The amount of interest should be one that is equitable under all the circumstances, and should approximate, as closely as possible, the amount the beneficiaries would have received, except for the trustee’s derelictions. In re Ebert, 136 N. J. Eq. 123 (Prerog. 1945); Melosh v. Melosh, 125 N. J. Eq. 486 (Ch. 1945).

I will approve the master’s report as to the shares of Colonial Life Insurance Company stock, in this trust, and the trustee will be surcharged the sum of $7,100, the difference between the value at the third accounting and fourth accounting. The evidence shows that the directors of the insurance company were also directors of the trustee bank; the president of the trustee bank was related to the president of the insurance company. The stock should have been sold for the highest price obtainable within a reasonable time after the decree on the third accounting, for the same reasons as outlined herein as to the Trust Company of New Jersey stock. No interest will be allowed thereon because the income received from this stock would approximate 3% simple interest per annum. .

Therefore, the exceptions to the master’s report filed by the trustee will be dismissed, and the exceptions thereto filed by the beneficiaries will be allowed as indicated herein. The trustee’s fourth account is hereby set aside, and it is ordered that a fourth account be filed embodying the findings herein.


source: Caselaw Access Project

author: Drewen, J. C. C.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, v. TIMOTHY MORRISSEY, DEFENDANT.
    Hudson County Court Law Division
    Decided January 10, 1951.

      Mr. Horace K. Roberson, County Prosecutor (Mr. William A. O’Brien, Assistant County Prosecutor, of counsel), attorney for the State.

      Messrs. Solomon & Miller (Mr. Abraham Miller appearing), attorney for the defendant.
   Drewen, J. C. C.

Defendant moves to quash on the ground that the indictment fails to charge a crime. The indictment is within the purview of R. S. 2:103-1 which enacts the common law of crimes, viz.: “* * * all other offenses of an indictable nature at common law, and not expressly provided for by statute, shall be misdemeanors.” One effect of this provision is to add the crime here in question to those other crimes of unlawful threat that are defined in R. S. 2:127-3 and 4. The components of the charge as pleaded are in substance: (a) defendant did contrive and intend to extort money from one Schmitt; (b) so contriving and intending, he did falsely accuse Schmitt of the crime of receiving stolen goods; (c) so contriving and intending he did also threaten Schmitt that he would prosecute such charge of crime against him unless Schmitt paid to defendant the sum of $100; (d) with the purpose and by the means aforesaid defendant obtained from Schmitt money in the sum of $75; (e) Schmitt was not guilty of the crime of which defendant thus accused him.

It is not disputed and the text-writers appear to leave no doubt that at common law it is a criminal offense to “frighten” money or other property out of one by the threat of criminal prosecution, and this entirely apart from any color of office or influence exerted thereby as in the case of the better known common law crime of extortion in the ordinary sense. “To extort by threats of any prosecution is at common law an indictable offense.” Wharton’s Criminal Law (11th, ed.), vol. 2, p. 1296. See also Russell on Crime (9th ed.), p. 801, quoting the opinion of Lord Ellenborough, 2 Smith K. B., infra. Cited in 62 C. J. 932, Note 13(a), is the statement of Lord Holt in Queen v. Woodward (1707) : “Every extortion is an actual trespass, and an action of trespass will lie against a man for frightening another out of his money. If a man make use of a process of law to terrify another out of his money, it is such a trespass as an indictment will lie for.” The subject is discussed in American and English Encyclopedia of Law (2nd ed.) vol. 28. It is there set forth (p. 141) : “It is well settled that at common law a mere threat in words not written is not an indictable offense * * *. It is, however, an indictable offense at common law to make threat's of the character calculated to overcome a Arm and prudent man, where the purpose is to extort money; and it is immaterial that the purpose be not accomplished.”

The test of indictability in a given case applies to the nature of the threat, whether in itself or as affected by attendant circumstances it is such as may reasonably be regarded as capable of moving an ordinarily “firm and prudent” person to comply with the offender’s extorsive demand. Upon the question presented by the application, within the indictment’s scope, of the test thus stated, this motion was argued.

“To obtain money under a threat of any kind, or to attempt to do it is no doubt an immoral action; but to make it indictable the threat must be of such a nature as is calculated to overcome a firm and prudent man;” or, as otherwise stated, the threat must be “one that may overcome the ordinary freewill of a firm man and induce him to part with his money.” (Lord Ellenborough, 102 Eng. Reprint K. B. 1235, at 1240, 1241.) It was also judicially declared in the latter case, respecting the degree of coercion carried by the threat, that “one man cannot be indicted because another has been a fool” (supra 1241).

The indictment, it is true, gives no hint of attendant circumstances, but that I take to be no fatal deficiency, for reasons I shall state. The precedents are antique, and with no more in the way of detail than the indictment gives us we may at least approach the problem with the preliminary observation that in our day, when the delivery of goods and the transfer of property therein are not only measureless in extent but vastly complex in method and detail, a charge of receiving stolen goods might readily be attended with enough plausibility to impress one other than a fool and at the same time to serve an extorsive design in the accuser. The gravamen of the offense here attaches. to the fact and motive of the accusation and the threat. Basically that is the charge and I find it adequately pleaded. Cf. State v. Jenkins, 136 N. J. L. 212 (Sup. Ct. 1947); State v. Daly, 3 N. J. Super. 247 (App. Div. 1949). The indictment is strengthened by the allegation that $75 was actually obtained in direct consequence of the offense described. While the gravamen does not involve the identity of the goods which the State means to prove were the subject of defendant’s accusation and the accompanying threat, in the same way that gravamen, for example, involves identity of goods in larceny, nevertheless the nature and relation of this detail is such in the present case that defendant would undoubtedly be entitled to advance notice of it by way of particulars upon proper demand therefor. The same applies to other related details and circumstances, such as may be shown to have sufficient bearing on the element of reasonableness in the coercion charged.

The indictment is not faultless. A number of things are present by indirection, that is, by way of mere reference and conclusion without direct factual allegation. There is, for example, no specific charge that defendant knew the accusation made by him to be false. While it is set forth that the charge was “falsely” made, the averment, for all that appears, relates to the charge itself as being factually untrue, apart from any question of honest knowledge or belief on defendant’s part respecting it. And elsewhere, while the accusation is described as “pretended” and the imputed offense as “supposed,” there is no direct allegation of fact to support either of these impugning terms. But these imperfections I judge not to be fatal, more especially since “it is as much a crime * * * to threaten to accuse a man of what is true or is believed to be true as it is to accuse him of what is known to be false.” (Amer. •& Eng. Encyc., ibid., p. 144, par. b.)

Needless to say, the technicalities that once ruled questions like this are no longer in force. The drafting of indictments has had its share in the release from technical exactitude that has come to pleading in general. This is shown by provisions like those in Rules 2:4-13 and 14. See also, with respect to defects not vitiating an indictment, R. S. 2 :188-5; and with respect to amendments upon objection R. S. 2 :188-6; and with respect to amendment upon terms, for errors in describing the offense, R. S. 2 :188-9. The spirit and intent of these provisions must be recogn ized on a motion of this kind for the bearing they obviously have upon the problem. An indictment will not be invalidated for defect unless it be such as to prejudice defendant in maintaining his defense upon the merits. (Larison v. State, 49 N. J. L. 256, 259). There are, of course, certain canons that abide. The indictment must charge a crime, and basic deficiencies in this regard are not curable by the supplying of particulars. (State v. Daly, supra; Stale v. Jenkins, supra.) It must be framed with such certainty as reasonably to apprise the accused of the charge he is called upon to meet; and he must be afforded every reasonable opportunity to prepare his defense. (State v. Daly, supra, at p. 250.) I think the present indictment violates none of the requirements for validity. The charge it makes is such as by its very nature to apprise defendant with reasonable fullness. Whatever else he may be entitled to have can be obtained by the indicated procedure.

“A motion to quash is addressed to the court’s discretion which ought not to be exercised when injustice may result to the state and where a refusal to exercise it deprives defendant of no substantial rights.” State v. Lehigh Valley R. R. Co., 90 N. J.L. 372 (Sup. Ct. 1917).

The motion is denied.


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

text:
    JULIUS ERDO, PLAINTIFF-RESPONDENT, v. FRANK STAHLIN AND ROBERT STAHLIN, DEFENDANTS-APPELLANTS.
    Superior Court oí New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 10, 1951.

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

      Mr. John Winans argued the cause for appellants (Messrs. Winans, Crane & Crane, attorneys).

      Mr. Matthew F. Melko argued the cause for respondent.
   The opinion of the court was delivered by

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

The judgment in plaintiff’s favor, entered upon a jury verdict after a new trial as to damages only, must be reversed. The trial court erred in granting plaintiff’s motion for a new trial as to damages only as it does not sufficiently appear the error committed as to damages by the first jury was so limited as clearly to make the issue of damages separable from the issue of liability; rather, in the circumstances of the case, the first verdict manifests an improper compromise on the basic issue of liability.

Plaintiff sued defendants in the Middlesex County Court alleging that defendants in May, 1948, blocked the downstream end of a culvert causing the water to back up and overflow on plaintiff’s lands with the result that the foundation walls and footings of a building being constructed by plaintiff were caused to sink, crack and break up and bis lands generally to be flooded. The defendants freely admitted at the trial that they blocked the culvert but justified their action as necessary to abate a nuisance allegedly caused by plaintiff’s suffering large quantities of household sewage, unsanitary and contaminated water and water containing large quantities of deleterious, wholly or partially decayed matter and substances deleterious to the health and well being of defendants and members of their families, to flow out of plaintiff’s property into the culvert and upon defendant’s land. They and their wives counterclaimed for personal injuries allegedly suffered as a consequence of plaintiff’s alleged wrong.

Plaintiff and defendants live on opposite, sides of Oak Tree Road, Raritan Township. The culvert crosses underneath the road. Plaintiff started in the spring or summer of 1947 to build a dwelling, not for his own use, but to rent, at the northwest corner of Dark Lane. He did most of the work himself, aided by members of his family. The building was partially completed when he stopped work in the fall of 1947 because of the onset of winter. Defendants blocked the culvert in May, 1948, and it is at that time, according to plaintiff, the foundation of the partially built house was damaged by the water which he alleged backed up on his lands and entered the cellar through a drain pipe.

Defendants’ proofs sharply controverted plaintiff’s claim that the damage to the foundation was caused by water hacking up from the choked culvert. Defendants’ evidence tended to show that the elevation of plaintiff’s lands above the culvert .made the backing up of the water upon his. land a physical impossibility and that the damage was in fact attributable to the building of the foundation as a “homemade” job by plaintiff and his son in a poor manner upon marshy land unsuited for the purpose, causing it to settle and crack sometime before May, 1948. Defendants’ evidence was that from the time the excavation work began there was water in the excavation constantly or at frequent intervals, that its bottom was muddy and so soft that many months before May, 1948, the bulldozer used in the excavating became mired in the mud in the excavation and at another time became mired so deeply when filling in the earth around the house that it could not be removed by its own power, that the plaintiff sometime in the spring of 1948, before the blocking of the culvert in May, was required to make use of an electric pump to pump out the water in the excavation.

We do not have the benefit in the appellants’ appendix of all the testimony at the first trial. The respective factual contentions of the parties on the question of liability, which we have summarized, can, however, be discerned in the record before us.

The only testimony at the'first trial as to the amount of damages to the foundation was that offered on plaintiff’s behalf by an engineer and surveyor. He described the condition of the foundation as he observed it in September, 1949, and stated his opinion that the cost of removing and replacing the foundation was $1,850, saying that the whole foundation would have to be removed and the house shored up while a new foundation was built. There were no proofs on defendants’ behalf to contradict this expert’s evidence either as to the necessity for complete replacement of the foundation or as to the estimated cost of doing the work.

The jury deliberated for several hours after being given the case at about 11:30 o’clock on the morning of the day the trial ended, and returned to the courtroom about 3:30 o’clock in the afternoon and advised the trial judge they could hot agree. The trial judge directed that they deliberate for another half hour, or until 4:00 o’clock and report again. The jury returned at five minutes after four and announced a verdict in plaintiff’s favor in the amount of $625 and a verdict of no cause for action on the defendants’ counterclaim.

Plaintiff duly noticed a motion for a new trial “as to damages only” on the ground that the verdict “of $625 rendered in favor of the plaintiff and against the defendants is grossly inadequate.” Defendants noticed a counter-motion for a new trial on the ground of newly discovered evidence. The trial judge reserved decision on both motions until December 28, 1949, when he filed an opinion denying defendants’ motion and granting plaintiff’s motion for a new trial as to damages only. The reason given in the trial court’s opinion for granting plaintiff’s motion was that “the jury having found that the plaintiff was entitled to a verdict, it should have been in an amount of $1,850 plus a small allowance for loss of rent, less the difference in value between a first-class foundation and the existing foundation built by the plaintiff, with the aid of his son.” The new trial resulted in a verdict of $960 in plaintiff’s favor, and this appeal from the judgment entered thereon brings up the question whether the new trial for damages only was properly granted.

Plaintiff’s motion was addressed to a discretionary power of the trial judge, Rule 3 :59-l, which was to be exercised, however, not according to whim or caprice, but by sound application of rules of law controlling the determination of the motion, and when it appears, as here, that judicial discretion was not properly exercised because the trial judge failed correctly to apply such rules, and it further appears his error injuriously affected the substantial rights of the defendants, we are empowered on appeal to reverse his action. Cf. Cortese v. Cortese, 10 N. J. Super. 152 (App. Div. 1950); Rule 3 :59-5, as amended. The granting of a new trial limited to damages is proper only when it plainly appears that the issue of damages is separable, that is, that the case is one “where it is certain that the error which resulted in * * * inadequate damages did not affect the other issues.” Robinson v. Payne, 99 N. J. L. 135 (E. & A. 1923); Esposito v. Lazar, 2 N. J. 257 (1949); Rempfer v. Deerfield Packing Corp., 4 N. J. 135 (1950); Juliano v. Abeles, 114 N. J. L. 510 (Sup. Ct. 1935); Stalter v. Schuyler, 135 N. J. L. 228 (Sup. Ct. 1947). The controlling principle as stated in Juliano v. Abeles, supra, has been reaffirmed by the Supreme Court in Esposito v. Lazar, supra (2 N. J., at 260) :

“The new trial cannot be narrowed to the quantum of damages unless it is plain that the error committed at the trial ‘was so limited in character as with justice to both parties to be separable from the other issues determined by the first verdict.’ * * * It is a corollary of the foregoing that if the case under consideration exhibits a compromise verdict on the fundamental issue of liability, the error taints the whole verdict, and a new trial of the entire issue is required. The law contemplates that juries shall, by discussion, harmonize their views, if possible, but not that they shall ‘compromise, divide and yield for the mere purpose of an agreement;’ * * *. Such conduct in the jury room is subversive of the basic principles of trial by jury; a verdict resulting from a compromise of this nature is wholly invalid. Granting a new trial as to damages in such circumstances would work grave injustice to the defendant; for it would deprive him of his constitutional right to a determination of the issue of liability by a jury in accordance with established principles.'

The question whether defendants’ blocking of the culvert in fact caused the water condition which damaged the foundation was sharply contested. We are persuaded that the jurors’ verdict in an amount having no relation to the plaintiff’s uncontradicted proofs of the amount of damages, particularly when laid in the setting of their initial disagreement on the question of liability followed by a verdict brought back five minutes after the time limited by the court for their further deliberations, shows that here, too, “the jury resolved this question (of liability) against (defendants) by the expediency of offsetting the doubt by awarding inadequate damages,” Esposito v. Lazar, supra. The facts clearly did not supply a rational basis for a finding of certainty by the trial court that the jury’s error which resulted in the inadequate damages did not affect the issue of liability, but on the contrary the facts supply a plain inference that the verdict for $625 was a compromise verdict on the question of defendants’ liability. The jury cannot be considered to have settled the question of liability fairly so that the finding of liability may with justice to the defendants be deemed separable from the issue of the quantum of damages, and “disassociated from other questions, it ought to stand.” Robinson v. Payne, supra. The verdict was therefore invalid, and the trial court erred in granting plaintiff’s motion limiting the new trial to damages only.

Our conclusion makes it unnecessary to decide the other points argued in the defendants’ brief. We record our view, however, that the trial court fell into error by unduly restricting defendants’ proofs at the second trial. Both sides tried the ease as to damages on the theory that in the circumstances shown the measure of plaintiff’s damages was the difference in the value of the foundation before and after the damages alleged to have proximately resulted from defendants’ act in blocking the culvert. An essential element of proof on this theory of damages was the condition of the foundation before defendants’ act. This question of prior condition was in dispute and defendants were improperly denied the opportunity to adduce proofs supporting their position that the foundation was already substantially damaged from other causes before they blocked the culvert.

Eeversed and remanded for a new trial on all issues.


author: Per Curiam.

text:
    JOHN WARREN, PLAINTIFF-APPELLANT, v. FRANK HAGUE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 16, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Theodore D. Parsons argued the cause for the appellant (Messrs. Parsons, Labrecque, Canzona & Combs, attorneys) .

      Mr. John Milton argued the cause for the respondent (Messrs. Milton, McNulty cG Augelli, attorneys).
   The opinion of the court was delivered

Per Curiam.

The plaintiff’s complaint alleges that the defendant maliciously and willfully libeled him and seeks compensatory and punitive damages. The defendant’s amended answer denies the libel and asserts separate defenses. After extended intervening proceedings (Hague v. Warren, 142 N. J. Eq. 257 (E. & A. 1948)), the plaintiff in April, 1949, served notice that he would take the testimony of the defendant before trial. Rule 3:26-l. At the same time the defendant was served with a subpoena ad testificandum in regular form, and a lengthy subpoena duces tecum which directed that he produce numerous documents bearing upon his financial resources. Rule 3:45. Thereafter the defendant served notice that he would apply for an order that the proposed deposition be not taken (Buie 3:30 — 2), the actual wealth of the defendant be not inquired into, and the scope of the examination be limited, on the ground that the taking of the defendant’s deposition and inquiry into his actual wealth, “in the absence of prima facie proof of malicious defamation” would be an unlawful search and seizure of his property. The notice further stated that application would be made to quash the subpoenas on the ground that they were unreasonable and oppressive. Buie 3 :45-2.

The defendant’s motion was duly argued, briefs were submitted, and on July 6, 1949, formal opinion was filed. In this opinion Judge Giordano expressed his views that before the plaintiff could recover on his claim for punitive damages he would be required to establish express malice and since the defendant’s actual wealth would only be material thereunder, his examination on that subject should not be permitted without advance prima facie showing of such malice. But cf. 4 Moore’s Federal Practice (2d ed. 1950), pp. 2025, 2031. Thereupon, on August 12, 1949, an order was entered directing “that the deposition of defendant, proposed to be taken by plaintiff, be not taken, and that the subpoena commanding defendant to testify be quashed.” We gather from the colloquy preceding the entry of this order that the court contemplated that it would simply prevent the taking of testimony pursuant to the particular subpoenas theretofore issued. At the argument on appeal counsel for the defendant conceded that although there has been determination by the lower court denying any right in the plaintiff to compel the defendant’s testimony as to his actual wealth without advance prima facie showing of express malice, the plaintiff nevertheless remains at liberty to subpoena, if necessary, and examine the defendant on other matters pursuant to Rule 3 :26.

On August 12, 1949, the plaintiff applied for an order fixing a time and place for the taking of the defendant’s deposition and prescribing the matters which may not be inquired into. At that time the application was denied but formal order of denial was not signed until March 29, 1950. On April 18, 1950, the plaintiff filed notice of appeal to this court from the orders of August 12, 1949, and March 29, 1950. The defendant moves to dismiss the appeal on the ground that the orders appealed from are interlocutory in nature and do not fall within any of the four classes of interlocutory orders, immediately appealable as such, under Rule 4:2-2. In so far as the order of August 12, 1949, is concerned, the additional ground is urged that the appeal therefrom was not taken within time. Rules 1:2-5, 4:2-5.

Under our former practice interlocutory appeals were permitted in Chancery but not at law. R. 8. 2:29-117, 2:27-349. With the unification of our courts and the promulgation of the new Rules, the Supreme Court accepted the prevailing philosophy that partial and successive appeals should be discouraged (Morgantown v. Royal Insurance Co., 337 U. S. 254, 93 L. Ed. 1347 (1949)) and prohibited the taking of interlocutory appeals to this.court, as of right, except in the four classes enumerated in Rule 4:2-2. The first class relates to injunctions and the second to receiverships; they are counterparts of the interlocutory appeals long available in the federal courts. 28 U. S. C. A., § 1292. The third class relates to appeals from determinations that the court has jurisdiction over the subject matter or the person and the fourth relates to instances where it is necessary to preserve the res or status quo and prevent irreparable injury. In the instant matter it is clear that the orders appealed from are interlocutory in nature and that no questions of jurisdiction or preservation of the res or status quo within Rule 4:2-2 are presented. Cf. Behrman v. Egan, 9 N. J. Super. 171, 176 (App. Div. 1950); State v. Cicenia, 9 N. J. Super. 135, 139 (App. Div. 1950). The plaintiff urges, however, that, in effect, the orders restrained the plaintiff from proceeding with his examination of the defendant and may be deemed to be appealable injunctive orders within Buie 4:2-2.

In Enelow v. New York Life Ins. Co., 293 U. S. 379, 381, 79 L. Ed. 440, 442 (1935), Chief Justice Hughes, in construing the federal provision permitting interlocutory appeals from injunctive orders, pointed out that it relates to orders which “constitute an exercise of equitable jurisdiction in granting or refusing an injunction” as distinguished from a mere stay which a court “may grant in a cause pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice.” See Morgankoivn v. Royal Insurance Co., supra. Most interlocutory orders, including the granting of continuances, the striking of separate defenses, and the limitation of examination, have some restraining effect, yet it has never been suggested that they constitute injunctions within the accepted use of that term. The appellant seeks to place reliance upon Rinaldi v. Mongiello, 4 N. J. Super. 7 (App. Div. 1949). There the court held that an order of the Law Division in a proceeding in lieu of prerogative writ {Rule 3 :81) restraining an independent administrative proceeding before a municipal director of revenue and finance, constituted an injunction within Rule 4:2-2; nothing in its opinion suggests applicability to orders of the nature entered below. Cf. In re Url, 5 N. J. 507, 512 (1950); Beckhardt v. National Power & Light Co., 164 F. 2d 199 (2d Cir. 1947).

The order of March 29, 1950, has no restraining effect and is not injunctive in substance or form. Similarly, the order of August 12, 1949, is not an injunction within the meaning of Rule 4:2 — 2 although it quashes the particular subpoenas issued and prohibits the proposed examination thereunder. The orders do not fall within any of the classes enumerated in Rule 4:2 — 2 and are not presently appealable; furthermore, the notice of appeal from the order of August 12, 1949, was filed well beyond the maximum time permitted by the Kules. See Rules 1:2 — 5, 4:2 — 5; Semenya v. Metals Disintegrating Co., 5 N. J. Super. 363 (App. Div. 1949).

The plaintiff apparently contends that the orders constitute such serious curb on his important right of discovery that, in the interests of justice (Scott v. Stewart, 2 N. J. 508, 511 (1949)) their validity should now be determined, notwithstanding their interlocutory nature. That contention seems inappropriately addressed to this court in view of the express and continued governing limitations in the Rules of our Supreme Court; a comparable contention was rejected in Morgantown v. Royal Insurance Co., supra, where the United States Supreme Court stressed the overriding policy against encouraging “piecemeal appeals.” Furthermore, the existence of the serious curb suggested by the plaintiff may be questioned. As counsel for the defendant has conceded, there is nothing outstanding which prevents the plaintiff from proceeding expeditiously with the issuance of a new subpoena, if necessary, and examination of the ' defendant before trial on matters other than his actual wealth. See Rules 3:26-l, 3:45. Thereafter if'the plaintiff is in position to establish, prima facie, the express malice required by the views expressed by Judge Giordano, upon which we do not in any wise pass, he may still be permitted by the lower court, upon appropriate showing, to inquire in advance of jury trial as to the defendant’s actual wealth. Cf. Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U. S. 689, 694, 77 L. Ed. 1449, 1454 (1933); Moore, supra, p 2041.

The appeal is dismissed, with costs.


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

text:
    LILLIAN BAYUK AND EDWARD BAYUK, PLAINTIFFS-APPELLANTS, v. ROBERT FELDMAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1951 —
    Decided January 22, 1951.

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

      Miss Lillian Clawans argued the cause for plaintiffs-appellants.

      Mr. Joseph N. Braff argued the cause for defendant-respondent (Mr. Arthur A. Sullivan, attorney).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

In the complaint filed in the Essex County District Court the plaintiff Lillian Bayuk alleged that she was struck by defendant’s automobile and she demanded damages for the injuries she sustained; plaintiff Edward Bayuk, her husband, sued for consequential expenses and loss of consortium. After a trial before the District Court judge, sitting without a jury, judgment against the plaintiffs and in favor of the defendant was entered, and the plaintiffs appeal.

There was no stenographic record of the evidence or proceedings below. Pursuant to Rule 1:2-23 the plaintiffs prepared and served on the defendant a statement of the evidence; the defendant served objections thereto and proposed amendments thereof; and the plaintiffs’ statement, together with the objections and proposed amendments of the defendant, were submitted to the court below for settlement. The appeal is before us on the statement of the evidence as settled and approved by the court below and its findings of fact and conclusions of law.

On March 2. 1948. the plaintiff Lillian Bayuk was injured while crossing Broad Street in Newark after 7 p. m. in drizzly weather. As she started to cross on the crosswalk, the traffic light was in her favor. At the time, the defendant’s ear, among others, was stopped awaiting change of the traffic light. She had reached a point a few feet from the far curb when defendant’s car and she collided. The crucial question was whether the plaintiff ran into the defendant’s car while the car was still stationary, or whether the car moved forward and struck her.

While the plaintiffs present all their argument under one point, we gather that they seek (1) new or amended findings of fact by this court under Rules 1:2-20 and 4:3-6, (2) the reversal of the judgment below as against the weight of the evidence, and (3) the entry of judgment in favor of plaintiffs on the issue of liability and remand to the trial court for trial as to damages only.

While the plaintiffs state their argument to be that this court should make new or amended findings of fact, their real argument is that we should disregard a part of the statement of the evidence as settled and approved by the court below, namely, the part setting forth that the defendant testified that the umbrella of the plaintiff Lillian Bayuk struck the car and the handle of the umbrella struck her in the mouth. Plaintiffs point out that no such testimony was included in their statement of the evidence, but admit that it was included in the defendant’s proposed amendments. They have printed in their appendix a copy of some abbreviated notes said to be an exact copy of the judge’s notes of the testimony taken at the trial, and point out that the questioned testimony is not set forth in these notes. Also included in their appendix is an affidavit of the plaintiffs’ attorney who tried the case below, stating that “there was no testimony that the umbrella struck the car and the handle struck her in the mouth.”

Rule 1:2-26 sets forth the proper procedure for correcting or modifying the record on appeal, if a party claims that such record does not truly disclose what occurred in the court below. This procedure should be completed before the filing of briefs on appeal. Plaintiffs did not proceed under Rule 1:2-26. While we might well refuse to consider the plaintiffs’ argument on this ground, we think that some comment should be made.

One of the most important reasons for the requirement of Rule 1:2-23 that in eases in which no stenographic record of the evidence or proceedings at the trial was made, the statement of the evidence or proceedings shall be settled and approved by the trial judge, is to provide a method for the settling of disputes betweeen the parties as to whether any particular testimony set forth by any party, for inclusion in the record, truthfully states what occurred. It is a commendable practice for a trial judge to make notes of the testimony during a trial, particularly in cases where no stenographic transcript is made, but there is no requirement in any case that a judge must make complete notes of all testimony. When a dispute arises as to whether any particular testimony was given at the trial, the trial judge is not prevented from including such testimony in the settled and approved statement of the evidence merely because it does not appear in his trial notes.

The inclusion in the plaintiffs’ appendix oE the affidavit of the plaintiffs’ attorney, mentioned above, is highly irregular.

In the circumstances of this case, we consider only the statement of the evidence as settled and approved. Examination of this statement discloses that there was sufficient evidence to support the finding of the court below, and we see no justification for disturbing it. DeMoors v. Atlantic Casualty Insurance Company, 1 N. J. Super. 1 {App. Div. 1948).

The judgment is affirmed.


author: Proctor, J. A. D.

text:
    CHARLES HEADWEAR, INC., PLAINTIFF-APPELLANT, v. BOARD OF REVIEW AND LOUIS B. CORTEZ, DEFENDANTS-RESPONDENTS. CHARLES HEADWEAR, INC., PLAINTIFF-APPELLANT, v. BOARD OF REVIEW AND GEORGE H. FERRIS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 3950 —
    Decided January 18, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Edward Sachar, attorney for and of counsel with plaintiff-appellant, argued the cause.

      Mr. Clarence F. McGovern, attorney for and of counsel with defendants-respondents, argued the cause.
   The opinion of the court was delivered by

Proctor, J. A. D.

These two cases, consolidated by order of this court, involve benefit disputes under the Unemployment Compensation Law. They are here upon the employer’s appeal from decisions of the Board of Eeview of the Division of Employment Security in the Department of Labor and Industry.

The claimants, Cortez and Perris, employees of appellant, were discharged following what the employer characterized as a deliberate slowdown of their work in the plant. Cortez was discharged on November 17, 1949, and Perris was discharged on the next day. Both Cortez and Perris applied for unemployment benefits.

A determination in each case was made by the deputy that the claimant was ineligible for benefits for the period November 17 to December 10, 1949, 'because he had been engaged in a deliberate slowdown, constituting misconduct connected with his work and justifying his discharge. On appeals from these determinations the appeal tribunal, on February 9, 1950, received evidence relating to the conditions pertaining to the discharge of the claimants. During the pendency of the claims before the appeal tribunal a further period of unemployment ensued, and it appeared that claimants during a part of such period had been devoting their full time to picketing. On March 1, 1950, the appeal tribunal determined that the claimants were ineligible for benefits because, during the initial period, they had been unemployed as a result of a discharge for misconduct and, during the later period, they had been devoting their full time to picketing. On March 8, 1950, Oortez gave notice of appeal to the Board of Eeview. His notice of appeal contained a statement that he was appealing only from that portion of the decision which held him to be ineligible for benefits during and after the time he was engaged in picketing. Ferris did not appeal, but the Board of Review, on its own motion, on March 15, 1950, removed to itself the claim from the appeal tribunal.

On March 30, 1950, the Board of Review conducted a hearing on both claims. Evidence was presented relating to the availability for employment of the claimants, as to Cortez after February 8, 1950, and as to Ferris after February 5, 1950. Other evidence vras also presented.' The claimants testified to their respective availability for work after the specified dates as their time had not been devoted fully to picketing. They also testified as to their unsuccessful efforts to obtain employment. Their employer, the appellant, presented additional evidence relating to the slowdown preceding claimants’ discharge. The employer also introduced production records into evidence for the purpose of showing that claimants’ production had declined and that less experienced men, hired in their stead, had produced as much or more than claimants.

The Board of Review found and decided that claimants had not been guilty of misconduct in connection -with their work and?that their discharge was not justified. The Board further found that Cortez as of February 9, 1950, and Ferris as of February 5, 1950, were available for employment and that, therefore, they were entitled to unemployment benefits from and after those dates.

The appellant, in seeking to set aside the decisions of the Board of Review, contends: (1) the Board had no jurisdiction to review the decisions of the appeal tribunal since said decisions had become final; (2) the Board could not determine as an initial matter claimants’ rights to benefits after February 9, 1950; (3) the discharge of the claimants was for misconduct within the meaning of R. S. 43 :21-5 (b).

The applicable statute is R. S. 43:21-6, as amended by P. L. 1945, c. 308, p. 893. (The later amendment by P. L. 1950, c. 167 is inapplicable to the present case.) Subsection (c) relating to a decision of the appeal tribunal provides:

“Such tribunal’s decision * * * shall be deemed to be the final decision of the board of review, unless within ten days after the date of notification or mailing of such decision, further appeal is initiated pursuant to subsection (e) of this section.”

Subsection (e) provides:

"The board of review may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. * * * The board of review may remove to itself or transfer to another appeal tribunal the proceedings of any claim pending before an appeal tribunal. * *

Decisions of an appeal tribunal, which are not appealed under B. S. 43 :21 — 6(c), or removed under subsection (e) of the same section, become decisions of the Board of Eeview. The Board is expressly empowered on its own motion to affirm, modify or set aside the decisions of an appeal tribunal. This procedure is clearly designed to expedite the final determination of disputed benefit claims and to obtain uniformity of disposition. Under subsection (d) of B. S. 43:21 — 10 the Board of Eeview acts as a final appeals board in cases of benefit disputes and supervises the work of local appeal tribunals. There is but a single Board of Eeview whereas the statute provides that there may be several appeal tribunals.

(1)

The Board had jurisdiction to review the decisions of the appeal tribunal. In each case the appeal tribunal decision was dated March 1, 1950, but the notification to the parties was mailed on March 6, 1950. The Perris claim was removed to the Board on its own motion pursuant to the authority expressly conferred by the statute. The order of removal to the Board was made on March 15, 1950, within the statutory ten-day period from the date of such mailing. The Cortez claim was appealed to the Board by the claimant within the same period.

The Board’s jurisdiction was complete and it had the power to consider and determine each claim in all its aspects. The Board was authorized to and did take additional evidence. The appellant presented additional evidence relating to the discharge of Cortez and it was afforded a full opportunity to be heard upon the claims. The attempted limitation of the scope of the- appeal in the Cortez claim by the statement contained in the notice of appeal in nowise restricted the jurisdiction of the board. The statute does not limit the scope of the review, nor does it expressly or impliedly authorize a partial appeal or the appeal from part of the decision of an appeal tribunal. The appeal removes the claim in its entirety. Any other holding would be inconsistent with the statutory scheme for the disposition of disputed benefit claims.

(2)

The Board of Review does not exist solely for the purpose of reviewing the initial determinations of the deputy and subsequent decisions of the appeal tribunal.

It is recognized that unemployment compensation laws are essentially administrative in their character. “The unemployment compensation acts are administered by administrative agencies which must be given wide discretion and freedom in their activities.” Sutherland, Statutory Construction (3rd ed.), % 7211.

The Board had the power under B. S. 43 :21-6(e), which it exercised in the present case, to assume jurisdiction of any claim pending 'before the appeal tribunal and to hold a hearing thereon. The intent of the statute is that a claim shall go forward in its entirety in each successive step in its consideration. There is no statutory compulsion to remand a claim at any stage of its progress toward final determination. The deputy and the appeal tribunal are, in effect, merely representatives or agents of the Board which is the ultimate fact-finding body. Neither the statute nor procedural due process requires a hearing at any particular stage as long as a hearing is accorded before the final order becomes effective. Of course, as to matters arising subsequent to the filing of the original claim, all of the parties must be afforded notice and opportunity to be heard and to present evidence relating to such new matters. Due process and fair play demand this. Cf. McFeely v. Board of Pension Commissioners of City of Hoboken, 1 N. J. 212, 216 (1948). However, no such problem is presented here, as appellant not only had notice and opportunity to be heard but actually participated in the hearing without objection.

(3)

On the question of claimants’ discharge for misconduct, the evidence was somewhat conflicting. Testimony was offered by the claimants and the appellant. The Board had the record and the advantage of personally observing appellant’s witness, Spagnon. We have carefully reviewed the record and are satisfied that there was sufficient competent evidence to support the determinations of the Board of Review. See Curtis v. Liberty Restaurant, 4 N. J. Super. 13 (App. Div. 1949).

The decisions of the Board of Review are affirmed.


text:
    HARDON, INC., PLAINTIFF-RESPONDENT, v. THE BERGEN-FIELD NATIONAL BANK AND TRUST COMPANY, SUBSTITUTED ADMINISTRATOR OF THE ESTATE OF JULIA SLATER, DECEASED, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 24, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. James A. Major argued the cause for the appellant (Mr. Clyde Christie, attorney).

      Mr. Horace F. Santa argued the cause for the respondent (Mr. Louis Liebowitz, attorney).
   The opinion of the court was delivered by

Proctor, J. A. D.

This is an action to quiet title to certain premises in the Borough of Bergenfield, Bergen County.

Plaintiff’s title depends on the foreclosure of a tax lien by a predecessor in title. Defendant asserts it is the holder of a mortgage on the property as substituted administrator of Julia Slater, the original owner of the mortgage, who (lied on November 5, 1931. On May 4, 1934, Lillian Brant was appointed administratrix of the estate of Julia Slater. The bill to foreclose the tax lien, in which Lillian Brant as administratrix of the estate of Julia Slater was made a party defendant, was filed on April 6, 1936. Though served with process, she failed to answer, and a final decree was entered against her June 24, 1936. As a result of several mesne conveyances, plaintiff became seized of the property in December, 1939. It appears that an order, removing Lillian Brant as administratrix and directing the appointment of the Bergenfield National Bank and Trust Company as substituted administrator, had been signed by a judge of the Orphans’ Court on December 4, 1935, but, because of non-payment of fees, this order, together with a petition and bond, had been held in the office of the surrogate without being recorded, filed or indexed. On January 13, 1939, the fees were paid, whereupon the documents were duly recorded, filed and indexed, and letters were issued to defendant. The pretrial order provides:

“At the time of the tax foreclosure the indices of records of the Bergen County Surrogate failed to disclose the petition and order for the removal of Lillian Brant as administratrix, or the bond given by The Bergenfield National Bank and Trust Company.”

The trial court held the tax lien foreclosure decree against Lillian Brant as administratrix of the estate of Julia Slater extinguished any Interest which the estate as holder of the mortgage had in the property. (8 N. J. Super. 486 (Ch. Div. 1950)).

Appellant contends that a valid decree cannot be entered in a tax lien foreclosure suit against an estate where process is served on a party who has been removed as administratrix, even though the order of removal was not recorded or indexed.

At the time of the tax lien foreclosure, the records in the surrogate’s office disclosed that Lillian Brant was the administratrix of the estate of Julia Slater. Though the order of removal should have been recorded (R. S. 2:31-20), the surrogate was under no duty to record it until the recording fees were.paid. B. S. 22:4r-17; B. S. 22:4-19. One may rely on the record title to property, in the absence of actual knowledge of title in fact, or of facts sufficient to put him on inquiry in respect thereto. “This protection extends to all persons who rely, and are justified in relying, on the record in dealing with real property. If this were not so, no one would be safe in purchasing real estate. * * * He who acts in reliance on the record has behind him not only the natural equities of his position, but also the special equity arising from the protection afforded everyone who trusts the record.” 45 Amer. Juris., Becords-and Becording Laws, § 82.

The order of removal of Lillian Brant as administratrix, no matter how binding it might be on the parties immediately involved in the proceeding from which it resulted, not having been recorded, was ineffective as to the plaintiff’s predecessors in title and, of course, as to the plaintiff. In Lyczak v. Margulies, 8 N. J. Misc. 549 (Sup. Ct. 1930); affirmed, 109 N. J. L. 352 (E. & A. 1932), the applicable principle was stated:

“* * * the adjudications of our courts can only be known through the records thereof, perpetuated in the minutes of such tribunals and other established places of record. Generally, if not universally, rules, orders and judgments are not effective unless and until properly and publicly enrolled.”

Compare Hillyer v. Schenck, 15 N. J. Eq. 398 (Prerog. 1862); Young v. Young, 32 N. J. Eq. 275 (Prerog. 1880); Mount v. Van Ness, 34 N. J. Eq. 523 (Prerog. 1881); Mount v. Slack, 39 N. J. Eq. 230 (Prerog. 1884).

. The foreclosure decree against Lillian Brant as administratrix extinguished any interest which the estate, as holder of the mortgage, had in the premises.

Judgment affirmed with costs.


text:
    CLAIRE K. SPINNING, PLAINTIFF-RESPONDENT, v. HUDSON & MANHATTAN RAILROAD COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 16, 1951.

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

      Mr. Theodore C. Baer argued the cause for respondent (Mr. Theodore C. Provost, attorney).

      Mr. Charles W. Broadhurst argued the cause for appellant (Messrs. Markley & Broadhurst, attorneys; Mr. Edward A. Markley and Mr. Patrick F. McDevitt, on the brief).
   The opinion of the court was delivered by

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

Defendant appeals from a judgment in the amount of $4,500 entered in Hudson County Court in plaintiff’s favor upon a jury verdict originally for $6,500 but reduced, and as reduced accepted by plaintiff, when the trial court, on defendant’s motion for a new trial sought on all issues on the grounds the verdict was against the weight of the evidence and excessive, ordered a new trial as to damages only unless plaintiff accepted the reduced amount.

The single ground urged by defendant for reversal of the judgment is that the trial court erred in “failing to instruct the jury that the plaintiff was not entitled to recover for pain and suffering resulting from the osteoarthritic condition that was neither caused nor aggravated by the trauma.”

Plaintiff suffered an injury to the left side of her lower back. The pain persisted from the date of the accident, November 29, 1948, to the time of the trial in May, 1950. It caused her extreme discomfort, particularly after sitting for any length of time, and considerably restricted her activities. On her doctor’s advice she wears a special support to give her some measure of relief.

The defendant offered no medical testimony. The only doctor who testified was plaintiff’s family physician. lie testified he had attended plaintiff long prior to the accident. Her evidence was she had never had back pain before the mishap, and the doctor stated she had never complained to him of such pains on the occasions she consulted him before the accident. She consulted him the night of the accident and was treated for the injury to her lower back. About a month after the accident he advised X-rays and learned at that time from the report of the doctor who took the X-rays that his paiient had “early osteoarthritic changes involving the sacroiliac articulations.” In the following April he recommended that she consult an orthopedic specialist because the pain persisted, but no bone involvement was discovered and he concluded that she should “wear a firm corset, because that’s all that could be done for her for the time being; that she had a lumbrosaeral sprain that would take a number of months for it actually to clear up,” “chronic lumbrosaeral sprain.”

He expressed the opinion that, while the injury suffered in the accident did not cause the arthritic condition, and he could not say “accurately” whether the injury aggravated that condition, nevertheless, that the condition was “probably a dormant” one and that the injury to the ligaments caused by the accident “would tend to aggravate a condition of osteoarthritis. * * * because the joint is abnormal to begin with, and any force or strain that is actually put on would make it that much worse.”

Counsel for the defendant at the close of the charge and in response to a question by the trial judge whether there were any exceptions to the charge, stated:

“The only objection I have to the charge is this, if the Court please: The Court stated that the plaintiff was entitled to be compensated for the injuries sustained by her as well as for the pain that she might suffer in the future. That, I know, is a general rule. In this particular case, I feel that the evidence is such that the jury should be instructed to find as a fact whether or not any pain she has might come from-the osteoarthritic condition which is concededly not aggravated by the injury.”
“The Court: I told them to find their verdict from the testimony.”

We do not fully understand from the form of the objection precisely to what part or parts of the charge it was addressed, and have no doubt the trial judge experienced the same difficulty. It plainly does not conform to the requirements of Buie 3 :51. J. B. Wolfe, Inc., v. Salkind, 3 N. J. 312 (1949); and see Levenson v. Erxleben, 135 N. J. L. 127 (E. & A. 1946); Tornaquindici v. Bocchicchio, 11 N. J. Super. 179 (App. Div. 1951). Assuming, however, the objection was proper, we find no merit in defendant’s argument that the trial court improperly disregarded it.

Appellant’s brief directs our attention to two excerpts from the charge. The first is that in which the court said to the jury that the plaintiff alleged in her complaint, among other infirmities said to be due to the accident, “that the injuries received by her also aggravated a pre-existing arthritic condition of the spine and that such injuries are permanent the second is that in which the court charged that if the jury found plaintiff was entitled to a verdict “she will be entitled to recover such sum as you find from the testimony that will reasonably compensaté her for her inability to go about and enjoy the use of her person as she otherwise would have been permitted to do, for any pain and suffering that she has heretolore endured and which she is presently enduring and which she may reasonably endure in the future * *

Appellant, however, omits mention of equally pertinent portions of the charge in which the jury was instructed to consider, — “And was or was not such failure to discharge its proper duty to plaintiff the proximate cause of the injuries which she suffered?”; and “Was the negligence of the defendant in the discharge of its duty to plaintiff, as may have been found, the proximate cause of plaintiff’s injuries?” (Italics supplied.)

Defendant’s argument is based on the proposition “the proof established there was no aggravation,” on which premise it is contended the court erred in reading to the jury the excerpt from the complaint alleging aggravation, and also erred in failing when discussing damages expressly to instruct the jury that they were not to consider the question of aggravation as an element of plaintiff’s damages, which latter failure, it is urged, was an omission from the charge of a fundamental rule of law, and requires reversal, notwithstanding defendant’s failure to submit a written request in advance of the delivery of the charge, citing Lambert v. Trenton & Mercer County Traction Co., 103 N. J. L. 23 (Sup. Ct. 1926) ; affirmed, 104 N. J. L. 175 (E. & A. 1927); Kappel v. Public Service Ry. Co., 105 N. J. L. 264 (Sup. Ct. 1929).

The argument fails because the premise is not correct. The statement to the trial court, made in counsel’s objection, that the osteoarthritic condition “is concededly not aggravated by the injury” had no foundation in fact. There was no such concession by plaintiff or her counsel; the contrary is the case. There were proofs in the doctor’s evidence, when considered with plaintiff’s testimony, from which the jury could reasonably find that the explanation for plaintiff’s persistent pain was that her pre-existing osteoarthritic condition had been aggravated, and the rule is that where one injured has pain and suffering from a pre-existing infirmity which she wmuld not have been subjected to except for the negligent conduct of the defendant, an element is clearly present to be considered by the jury in ascertaining damages. Hahn v. D., L. & W. R. R. Co., 92 N. J. L. 277 (Sup. Ct. 1918); Haufler v. Public Service Railway Company, 79 N. J. L. 404 (Sup. Ct. 1910).

We note in addition that defendant’s brief concedes that the court correctly charged the general rule of law relative to damages in a personal injury suit. Since there was proof of aggravation, the most favorable light, to defendant, in which the objection may be viewed, is that the court was asked to amplify the charge with instructions delimiting the precise bounds within which plaintiff was entitled to have the jury consider the question of aggravation as part of the entire damage shown to have resulted from the accident. See Hahn v. D., L. & W. R. R. Co., supra, and Haufler v. Public Service Railway Company, supra. But the failure to amplify the charge in this respect was not an omission of a charge upon a fundamental rule of law but, at best, an omission of which defendant cannot be heard to complain in the absence of the submission of a request for specific instructions on the subject desired to be covered. Cf. Jones v. Lahn, 1 N. J. 358 (1949).

Affirmed.


author: Eastwood, J. A. D.

text:
    ESSIE GINTER, PLAINTIFF-RESPONDENT, v. WESTINGHOUSE ELECTRIC & MANUFACTURING CORP., LAMP DIVISION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 17, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Harry Cohn argued the cause for the plaintiff-respondent.

      Mr. Michael N. Chanalis argued the cause for the defendant-appellant (Messrs. Haines, Chanalis, Lynch & Maloney, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The defendant appeals from the judgment of the Essex County Court affirming a 100% permanent disability award by the Workmen’s Compensation Division for increased disability suffered by plaintiff as the result of an accident previously found to he compensable.

Plaintiff’s injuries were suffered in an accident that occurred on July 31, 1944. At an informal hearing before the Division, an award of 20% partial permanent disability to hex right leg was awarded on November 13, 1944. In February, 1946, this award was increased to 40% partial permanent disability to her right leg. On November 18, 1949, following hearings of the plaintiff’s claim for increased permanent disability, the Division determined that she had suffered a total permanent disability as the result of injuries to her leg and back causally related to the accident in question. The Essex County Court, on appeal, reached a similar conclusion.

The defendant contends that the plaintiff did not sustain the burden of proving that the leg disability found to have existed at the prior determination had increased; that there was no proof that plaintiff’s hack condition was related to her leg disability; and that the petitioner, in her original claim having failed to allege a back injury, the court was without jurisdiction to make an award, in view of the fact that the statutory limitation period had expired; that her incapacity is the result of her obesity or some cause other than the said accident.

The Division and the County Court found that the employee’s injury to her back was an enlargement of the. disability resulting from the compensable accident sustained by the employee. Our examination of the record satisfies us that there was sufficient evidence to support the factual findings of the Division and the County Court. When, as hero, two independent tribunals separately arrive at the same factual determination upon sufficient evidence, this court will not exercise its discretionary power under Rule 3:83 — 13 (cf. Rules 1:2-20 and 4:2-6) to review the facts and make indopendent findings thereon. Giresi v. E. I. duPont deNemours & Co., Inc., 7 N. J. Super. 41 (App. Div. 1950); Coronalo v. Public Service Coordinated Transport, 4 N. J. Super. 1 (App. Div. 1949); Ali v. Star Restaurant, N. J. Super. (App. Div. 1950).

The sole question for our determination is whether, plaintiff having failed to specifically allege a back injury in her original claim petition, she is now precluded from prosecuting her claim for increased disability7-, in view of the fact that her petition was not filed within two years of the occurrence of the accident. The finding here that plaintiff was partially incapacitated by injuries to her leg, does not bar a later finding that injuries which manifested themselves at the time of the accident and increased in their incapacitating effect at a subsequent date, were compensable. Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72 (Sup. Ct. 1936); affirmed, 118 N. J. L. 301 (E. & A. 1937); Torbyn v. South River Sand Co., 6 N. J. Super. 1 (App. Div. 1949). There is an abundance of authority for the proposition that under the authority of R. S. 34:15-37 the Division has continuing jurisdiction to modify an award to accord with a change in the degree of incapacity arising from such an injury. Drake v. C. V. Hill & Co., 117 N. J. L. 290 (E. & A. 1936); DeSantis v. Turner Construction Co., 120 N. J. L. 590 (Sup. Ct. 1938); Ducasse v. Walworth Manufacturing Co., 1 N. J. Super. 77 (App. Div. 1948). The employer argues that since there was no prior claim made by7 the employee or any award in the earlier adjudication for any permanent disability referable to the petitioner’s back, she is thereby barred from now asserting a claim for the enlargement of her disability involving the area of her back as well as her right leg. In support of its contention, defendant relies heavily upon the case of Herbert v. Newark Hardware, &c., Co., 107 N. J. L. 24 (Sup. Ct. 1930); affirmed, 109 N. J. L. 266 (E. & A. 1932). An examination of the Herbert case convinces us that it is not analogous. The Herbert case, which was decided prior to the amendment of R. S. 34:15-37 in 1.931, dealt, with the issue as to whether the claim petition for an additional disability had been filed within the statutory period of one year from the date of the last payment. Here, there is no such dispute. The record reveals that from the very inception plaintiff made known to the employer’s doctor the complaints of her back injury and was examined and cross-examined with respect thereto at the earlier hearing. From a time shortly after the award of 40% of total permanent disability, the employee’s back condition deteriorated, necessitating finally an operation which revealed that there was an irregularity of the points in the lumbosacral region. A fusion of the spine was performed. The medical proofs established that her back condition was causally related to the accident in question.

The employer further argues that the employee’s claim is based upon two independent injuries allegedly arising out of the same compensable accident, and having failed to assert and prove the back injury within the statutory period, she is now precluded from obtaining an award of compensation therefor. The case of Granaban v. Celanese Corp. of America, Plastics Div., 3 N. J. 187 (Sup. Ct. 1949), is dispositive of the employer’s contention. There, the court held that the same trauma is alleged in the original claim petition and the amendment proffered after the statute had tolled; that the only change created by the amendment is the effect of the trauma; that the claim petition alleged a permanent disability and the objective of the hearing was to determine the extent of such disability; that the effect of the proposed amendment was to amplify the nature of the injuries so that the extent of the disability might be fully explored and determined. The “gist” of the subsequent complaint under review here remains the same; it is an allegation of damage resulting from the same trauma, the same wrong which occurred July 31, 1944. Granaban v. Celanese Corp. of America, Plastics Div., supra.

With respect to defendant’s contention that the plaintiff’s incapacity is the result of her obesity or some cause unrelated to the accident, our courts have held that where the defendant asserts this defense, the burden of establishing it is upon the one who alleges it. Calicchio v. Standard Brands, 1 N. J. Super. 276, 279 (App. Div. 1949), and cases cited therein. The defendant failed to successfully bear that burden.

We are of the opinion that the Essex County Court correctly determined that the employee’s increased disability is the natural and probable consequence of the accident of July 31, 1944. See Sunkimat v. Senger Coal & Ice Corp., 137 N. J. L. 103 (Sup. Ct. 1948).

The judgment of the Essex County Court is affirmed, with costs.


author: Bigelow, J. A. D.

text:
    ELIZABETH MITCHELL AND ANOTHER, PLAINTIFFS-RESPONDENTS, v. JULIUS FRIEDMAN AND ANOTHER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 24, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Murray Greiman argued the cause for the respondents.

      Mr. Patrick A. Dwyer argued the cause for the appellants (Messrs. Carpenter, Gilmour & Dwyer, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This action, a negligence case, was before the Appellate Division at an earlier stage. Mitchell v. Friedman, 7 N. J. Super. 251 (App. Div. 1950). Since that decision, the case has been tried. The defendants now appeal from the final judgment awarding damages to their opponent.

The plaintiff dwelt in an apartment house owned by the defendants. A fire occurred in the building that damaged the plumbing system so that the water pressure became insufficient to flush automatically the toilet in plaintiff’s apartment. Plaintiff was compelled to draw water in pails and carry it to the toilet in order to flush it, as the only method by which to maintain sanitary conditions in the apartment. This was still the situation 12 days after the fire, when she suffered a back injury while lifting a pail of water from the bath tub. At the conclusion of the plaintiff’s case, the defendants moved to dismiss the complaint on the ground that their negligence was not the natural and proximate cause of the injury and on the ground of contributory negligence and assumption of risk. It is the denial of this motion that is presented as the reason for reversing the judgment. The duty of the defendants to repair the water system after the fire and their negligence in failing to do so before the day on which plaintiff was injured, are admitted on the appeal.

Appellants argue that the answer to the question of natural and proximate cause depends upon whether or not the defendants should have foreseen that, as a result of an insufficient water pressure, the plaintiff would be injured in the manner charged. Many decisions more or less supporting this view of the law might be cited, beginning perhaps with the expression of a doubt, in Greenland v. Chaplin, 5 Ex. 243; 155 Eng. Rep. 104 (1850). But there has been a strong trend through the years to discard foreseeability as a test of proximate cause and to use it instead in defining negligence. Annotation in 155 A. L. R. 157; Pease v. Sinclair Refining Co., 104 F. 2d 183; 123 A. L. R. 933 (1939). And see the dissent as well as the majority opinion on the basis of liability in Palsgraf v. Long Island R. R. Co., 162 N. E. 99 (N. Y. 1928). “If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen, the extent of the harm or the manner in which it occurred, does not prevent him from being liable.” Restatement, Torts, § 435; see also § 901 et seq., and especially 905. In England, the foreseeability of injury does not appear as an element in the consideration of proximate cause in negligence cases. The Argentino (1888), 13 Pro. Div. 191; affirmed (1889), 14 A. C. 519; Cobb v. Great Western Ry. (1893), 1 Q. B. 459; affirmed (1894), A. C. 419.

Our New Jersey cases disclose a development similar to that observable in other states. In Crater v. Binninger, 33 N. J. L. 513 (E. & A. 1869), an action for deceit, Chief Justice Beasley, after mentioning the difficulty of determining what results are proximate and what remote in a legal sense, said that “those results are proximate which the wrongdoer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract.” This concept, somewhat modified, was applied a few years later to a negligence case, D., L. &. W. R. R. Co. v. Salmon, 39 N. J. L. 299 (E. & A. 1877). But in Hammill v. Penn. R. R., 56 N. J. L. 370 (Sup. Ct. 1894), where may be found one of onr best discussions of proximate cause, it is said that the person guilty of negligence “is equally liable for the consequences whether he could have foreseen them or not.” An attempt to reconcile the conflict appears in Newark R. R. Co. v. McCann, 58 N. J. L. 642 (E. & A. 1896). After stating that the term “natural” imports that the injury is such as might reasonably have been foreseen, the court continues, “Of course, it is not necessary that the wrongdoer should be able to anticipate the very occurrences which resulted from his laches; it is enough if, after they have happened, they are seen to have followed from his misconduct in the natural course of things and within the range of reasonable probability ; and it must generally be left to the jury to determine according to the circumstances whether the facts fit the standard of naturalness.” Our more recent eases hold it to be sufficient “If it might have been foreseen or anticipated that some injury might result” from the failure to exercise due care. DeMott v. Knowlton, 100 N. J. L. 296 (E. & A. 1924); Millman v. U. S. Mortgage, etc., Co., 121 N. J. L. 28, 36 (Sup. Ct. 1938); Bacak v. Hogya, 4 N. J. 417 (1950).

Under our law relating to negligence as we understand the cases cited above, the tort-feasor is generally answerable for an injury that, in the ordinary course of events, results from his wrongful act. The act of the defendant need not be the only factor in bringing about the injury, but it must be a substantial factor. The ordinary course of events often includes the unexpected; sometimes it presents what, in advance, would seem most unlikely to happen, as in Ham-mill v. Penn. B. B., supra. And on the other hand, the outcome may be so extraordinarjr. that the. wrongdoer is not considered liable. Bestatement, Torts, § 433. Whether the injury received by plaintiff was the “natural” result of defendants’ negligence, was a question for the jury. Batton v. Public Service Corp., 75 N. J. L. 857 (E. & A. 1908). The circumstance that plaintiff’s back was weak before the accident, did not preclude a finding in her favor. Mourison v. Hansen, 20 A. 2d 84; 136 A. L. R. 413 (Conn. 1941).

Defendants further argue that plaintiff’s own negligence contributed to the happening in which she was injured, or else that she assumed the risk of injury. Instead of putting her pail in the washtub, under the faucet, as plaintiff did, she might have used a short piece of hose to run the water from the faucet into the pail. Or instead of getting water from the bathtub, plaintiff might have drawn it from the kitchen sink; but this would have been somewhat difficult since the spigot in the sink was so placed that plaintiff would have had to tip the pail in order to get it under the spigot. And the sink was considerably further from the toilet than was the bathtub. On the other hand, in order to get water from the tub, plaintiff had to lean to one side in an awkward manner, because of a wash basin at the side of the tub. One other circumstance has already been mentioned, namely, plaintiff had a weak back and was aware of the fact. The question whether, in the situation which defendants’ negligence permitted to exist, the plaintiff conducted herself as would a reasonably prudent person, or whether she failed to meet that standard, was properly submitted to the jury. Button v. Public Service Gorp., supra.

There was no error in the denial of the defendants’ motion to direct the verdict. Judgment affirmed.


author: Rogers, J. A. D.

text:
    JOSEPH RUSKIN, PLAINTIFF-APPELLEE, v. ARTHUR J. CALE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey. Appellate Division
    Argued January 8, 1951 —
    Decided January 24, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Leslie S. Kohn argued the cause for the appellant (Mr. Harry Potter, attorney).
   The opinion of the court was delivered by

Rogers, J. A. D.

Plaintiff recovered a judgment for wages in the Wage Collection Division of the New Jersey Department of Labor and Industry and defendant appealed to the County Court. Defendant now appeals from the judgment of that court dismissing the appeal for lack of prosecution on plaintiff’s motion and denying defendant’s motion to fix a date for hearing his appeal. Plaintiff did not respond to the appeal.

The proceeding was in pursuance of B. 8. 34:11-57 et seq. The appeal was perfected in January, 1950, and the motions for dismissal and for a hearing date were made and disposed of in June. The only provision of the statute relating to timely prosecution of appeals is contained in section 63 and reads:

“Either party may bring on the hearing of the appeal at term time or in vacation upon ten days’ notice to the other party or his attorney.”

This appeal presents the narrow question of the propriety of the dismissal over objection of an appeal .in a statutory proceeding for lack of prosecution for about five months where the statute affords either party the right to move for hearing upon short notice to the other. The statutory method for moving an appeal appears to be apt, fair and expeditious, and there is no other prescribed requirement for prosecution. Unless there are special meritorious circumstances to the contrary the court should require the parties’ compliance with the statutory procedure; and certainly this is so in an instance where, as here, a counter-motion to fix a date for hearing was before the court. The statute authorized the defendant to move for a hearing date and the court was required to fix it. That motion clearly countered any inference of defendant’s intention to abandon the appeal deducible from the delay of five months, and there was no evidence that in fact the appeal had been abandoned.

The judgment is reversed.