author: Lawbenoe, S. C. C.

text:
    HELEN KURZ, PLAINTIFF, v. EMINA (ALSO KNOWN AS AMINA) ABBRUZZE, DEFENDANT.
    Decided May 18, 1936.
    For the motion, Julius H. Halprin.

    Opposed, Winfield 8. Angleman.

   Lawbenoe, S. C. C.

This suit sounds in ejectment. Plaintiff claims title to the locus in quo by virtue of a sheriff’s deed dated March 9th, 1932, and recorded in the Somerset County Clerk’s office on March 14th, 1932. It appears to have been duty executed and acknowledged. It states that Elizabeth L. Thomas and Eussell L. Thomas, trading as Nicholas Thomas Lumber Company, obtained a judgment against one Horace Coddington in the District Court of the First Judicial District of the county, which judgment was later docketed in the Court of Common Pleas. An execution issued out of that court on December 19th, 1931, under which the sheriff levied on the land in question (with other lands) and later, as indicated, sold the right, title and interest of Coddington, the judgment debtor, to plaintiff. An examination of the deed delivered discloses that his title, whatever it was, was conveyed to plaintiff thereby and that so far as he and those under him are concerned the right to possession is out of them and in plaintiff. Coddington, it is said, remained in possession after the sheriff’s deed and, notwithstanding his lack of right, leased the premises for the month of March, 1936, to the defendant in the present suit. The answer filed by her admits such possession. Motion is made to strike the answer and for summary judgment on the ground that it is sham, in that she has no right to possession as against plaintiff. On the argument of the motion, plaintiff submitted affidavits in support, together with the sheriff’s deed. ISTo affidavit by defendant was offered, but one made by Coddington, the original judgment debtor, was presented in which he recites that he had remained in possession after the deed was made and recorded, without demand for possession having been made by plaintiff and had let in defendant as a tenant. Other matters set forth in his affidavit are not regarded as material, such as, for example, a reference to the foreclosure proceeding on a mortgage covering the property said to be pending. As between the parties to this suit that circumstance would be of no moment. It majr thus be said that this affidavit cannot avail defendant and in the absence of her own showing a proper defense, those of plaintiff must be taken as controlling. Lembeck, &c., Brewing Co. v. Krause, 94 N. J. L. 219; 109 Atl. Rep. 293, and Schiff v. Alexander, 3 N. J. Mis. R. 817; 130 Atl. Rep. 133.

It was urged, however, in behalf of defendant, that, as plaintiff is to recover possession, if at all, on the strength of her own title and proof of such title as she may have, defendant’s answer cannot be stricken as sham. This appears to be on the theory that the mere filing of the answer necessitates a trial and proof of such title; and that the right to have an answer stricken as sham, under the recognized rules and practice, does not include ejectment suits. But this does not appear to be so. In Milberg v. Keuthe, 98 N. J. L. 779; 121 Atl. Rep. 713, it is said that a summary judgment in an action of ejectment is authorized by sections 15 and 16 of the Practice act of 1912 (Pamph. L., ch. 231, p. 380; Cum. Supp. Comp. Stat. 1911-24, p. 2816, § 163-291, 292), when the answer is frivolous or sham, and has been stricken out, leaving the plaintiff’s claim wholly uncontested. Since defendant’s claim to possession obviously rests on that of Coddington and plaintiff’s right is superior to his, it follows that the answer filed must be regarded as sham. The motion to strike will therefore be granted, with costs.


source: Caselaw Access Project

author: Bbogan, Chief Justice.

license: Public Domain

text:
    BETTIE CAFARO, PLAINTIFF-APPELLANT, v. GUIDO CA-FARO, AN INFANT, BY HIS GUARDIAN, CIRO CAFARO, DEFENDANT-APPELLEE.
    Argued January 22, 1936
    Decided May 16, 1936.
    Before Bbogan, Chief Justice, and Justices Lloyd and Donges.
    Por the plaintiff-appellant, Louis Santorf.

    Por the defendant-appellee, Townsend & Doyle {Marie Townsend and Thomas F. Doyle, of counsel).
   Bbogan, Chief Justice.

The plaintiff appeals from a judgment of nonsuit entered against her. The action arose out of an automobile accident in which plaintiff was seriously injured and for which she seeks compensation.

The defendant is a minor, aged nineteen, and was the driver of the automobile in question at the time the plaintiff was injured. Plaintiff is the mother of the defendant. The motion for nonsuit was advanced on the theory (1) that the defendant was not guilty of negligence; (2) that the defendant is an unemancipated infant and the mother cannot, under those circumstances, maintain an action against such minor child; and (3) that the plaintiff was not an invitee.

The court, in dealing with the proposition of the mother’s right to sue under these circumstances, held, as a matter of law, “that the mother cannot sue the son * * * on the

theory of emancipation.” He further held that the proof in the case convinced him that the child was not emancipated and further held that the evidence was convincing that plaintiff was a licensee. He rested his judgment of nonsuit on both grounds.

Adverting to the last ground advanced, we think- in holding that the mother, as a matter of law, was a licensee the court fell into error. The complaint avers that she was a passenger in the ear. The term “passenger” includes the status of an invitee as well as that of a licensee. Her testimony shows that the car was the property of her husband and that the defendant son said to his mother, before going on the journey, “papa wants to bring you to the feast tomorrow.”

Members of this family, as part of their business, on certain Italian feast days, were accustomed to operate a commercial stand for the sale of Italian foodstuffs at various parts of the metropolitan district.

Since the plaintiff is entitled, on motion for nonsuit, to have the testimony in evidence considered in a light most favorable to the plaintiff, with all its legitimate inferences, we think that a jury might have as legitimately concluded that she was an invitee and that her status as passenger was that of a licensee.

As to the other ground upon which the court rested the judgment of nonsuit, we think he was likewise in error.

The question whether an infant is emancipated is usually one of fact. Goldstein v. Goldstein, 4 N. J. Mis. R. 711; 134 Atl. Rep. 184; Martens v. Martens, 11 N. J. Mis. R. 705; 167 Atl. Rep. 227; Steliga v. Metropolitan Casualty Insurance Company of New York, 113 N. J. L. 101 (at p. 104); 172 Atl. Rep. 793. These cases hold that if there is anjr evidence of emancipation the determination of whether a party possesses that status is for the jury and they affirm the right of an emancipated child to its action against a parent in tort. The necessary corollary of the principles outlined therein that an emancipated child may sue a parent for tort is that a parent may sue an emancipated child for its tort. Crosby v. Crosby, 246 N. Y. Supp. (Appell. Div.) 384. If there was evidence of emancipation, and we think there was, it was error for the court to control the case by nonsuit. Here the infant was nineteen years of age and had started to work for a mill owner in 1932, almost ten months before the accident. The record discloses that he turned over his wages to his mother from which she deducted an amount sufficient to pay for his board and maintenance, returning the balance to him. Two weeks prior to the accident a strike at the mill put the infant defendant out of work, and during that interval he worked for his .parents, receiving, as the plaintiff testified, $12 or $13 a week out of which he actually got $2 or $3, the balance being retained to feed and clothe him.

The fact that a minor works and makes his own contract of employment, as here, is some evidence of emancipation, according to the earlier cases. A parent has the right to the earnings of a minor but those rights may be waived and the infant permitted to contract for his own services and receive the wages of employment. Snedeker v. Everingham, 27 N. J. L. 143; Costello v. Prospect Brewing Co., 52 N. J. Eq. 557; 30 Atl. Rep. 682; Berla v. Meisel, 52 Id. 999.

The evidence of emancipation was, as the trial judge commented, meager, yet, in our judgment, it was sufficient to go to the jury and, if uncontradicted, capable of supporting an affirmative finding on that issue.

Judgment is reversed, and a venire de novo awarded.


author: Per Curiam.

text:
    FISCAL ASSOCIATES, INCORPORATED, PLAINTIFF-APPELLANT, v. GRAY FURNITURE COMPANY, INC., DEFENDANT-RESPONDENT.
    Submitted October term, 1935
    Decided May 15, 1936.
    Before Justices Heher and Perskie.
    For the appellant, Samuel A. Sharff.

    For the respondent, Benneit A. Bobbins (Morris L. Stern, of counsel).
   Per Curiam.

Plaintiff sued upon seven promissory notes, each in the principal sum of $50, made by the defendant to the order of American Neon Sign Company, Inc. It was alleged that the plaintiff is “a holder in due course;” but the notes were concededly non-negotiable. By endorsement thereon, payment of each was made “subject to contract dated October 1st, 1933, between American Neon Sign Company, Inc., and the Gray Furniture Company, Inc., and to conditions of collateral agreement which include guarantee of responsibility for any violation of city ordinance due to erection.” This contract provided for the erection of a neon sign upon defendant’s building; and the notes evidenced payments provided for therein.

The District Court judge, sitting wüthout a jury, found r. failure of consideration for the notes, and awarded judgment to the defendant.

The plaintiff, in contesting the action, pleaded that defendant, by its acts and conduct, was estopped from setting up the defense of failure of consideration as against plaintiff, and was likewise estopped from rescinding the contract in to to. The overruling of these defenses is now assigned for error.

Neither point has substance. Plaintiff was put upon notice, by the endorsement upon the notes, that the obligations were subject to the maker’s contractual rights. No inquiry was made as to the specific rights thus reserved for future assertion; but it is contended that an estoppel arose under a letter forwarded by defendant to the sign company on January 8th, 1934, a copy of which was, at the request of plaintiff’s counsel, sent to him three days later. This claim is untenable. The letter plainly stated that the construction work was faulty, and demanded that the defects be remedied, and that the sign be made to conform to the local ordinance. Moreover, there was evidence, credited by the District Court judge, that the president of the defendant corporation forwarded the letter at the request of the addressee, believing him to be counsel for the sign company, and not for the plaintiff. It was represented to defendant’s president, so he testified, that the letter dispatched to the sign company three days earlier “had probably been misdircted in the mails,” and the sign company desired a duplicate. We also find a factual basis for the finding of the District Court judge that defendant was justified in rescinding the contract.

Judgment affirmed, with costs.


author: Heher, J.

text:
    MANSOUR NASSER, PLAINTIFF-RESPONDENT, v. JACOB R. METSKY, DEFENDANT-APPELLANT.
    Submitted October term, 1935
    Decided May 15, 1936.
    Before Justices Heher and Perskie.
    For the appellant, Cohen & Klein {Philip Klein and Harry Lieb, of counsél).
    For the respondent, Sidney A. Bierman {Nicholas Albano, of counsel).
   The opinion of the court was delivered by

Heher, J.

By deed dated November 30th, 1923, and acknowledged the following day, defendant conveyed to plaintiff certain lands in the city of Newark. It contained a warranty against encumbrances, viz.: that the lands, “at the time of the sealing and delivery of these presents, are not encumbered,” and so forth. Taxes assessed for the year 1923 were then unpaid, and did not become a lien until December 1st, the day the deed was acknowledged; and the question for decision is whether plaintiff is entitled to reimbursement for the moneys paid in satisfaction of that lien. We think that he is.

While the agreed case shows that the “title was closed” on November 30th, it was manifestly the intention of the parties that taxes for the current year should be paid by the vendor. Plaintiff introduced, without objection, evidence that he paid to defendant his proportionate share of the taxes for that year, and that the latter undertook to make payment thereof to the municipality. Moreover, defendant, at the closing of title, executed and delivered to plaintiff an “affidavit of title,” wherein he deposed that the premises “are now free and clear of all taxes, incumbrances or liens by mortgage, decree, judgment, or by statute, * * The District Court judge, sitting without a jury, found as a fact that the vendor undertook to pay the taxes in dispute; and there was evidence to support the finding.

The sole point made by defendant is that there was no breach of the covenant against incumbrances contained in the deed, inasmuch as the lien did not attach to the lands until December 1st. Put the presumption is that the deed was delivered on the day of the date of the acknowledgment. Walkowitz v. Walkowitz, 95 N. J. Eq. 249; 122 Atl. Rep. 835. The agreed case shows that the District Court judge, in reaching his determination, was “guided by the deed and affidavit of title.” We conclude from this that he found the deed was not delivered until December 1st; and there was evidence to support that finding.

The judgment is therefore affirmed, with costs.


author: Oliphant, C. C. J.

text:
    Mercer County Circuit Court.
    ANNA GREVE, PLAINTIFF, v. CENTURY COUNCIL, NO. 100, JR. O. U. A. M., DEFENDANT.
    Decided February 28, 1936.
    For the plaintiff, William, Reich.

    For the defendant, Katzenbach, Gildea & Rudner.

   Oliphant, C. C. J.

The plaintiff sues to recover from the defendant death benefits alleged to be due by reason of the membership at the time of his death of the plaintiff’s son. Max Linka, in the defendant society. The defendant admits that Max Linka was one of its members but denies that death benefits are due, asserting that the dues of the deceased member were not paid in. such a manner as to entitle his mother to death benefits upon his death.

At the trial no question of fact for determination by a jury was presented. The plaintiff moved for a judgment in her favor and the defendant made a similar motion on its behalf. By consent the decision of the case was left with the trial judge.

The position of the defendant is based upon certain provisions in its constitution and by-laws. Sections 4, 5 and 6 of chapter- 6 of the constitution and by-laws provide as follows:

"Sec. 4. Any member of this Council who shall owe the Council thirteen or more weeks’ dues, is debarred from all rights and privileges of the Council and Order, except that of being admitted to a seat in his Council during its sessions. He is automatically suspended from, all sick and funeral benefits without notice.

“See. 5. If a member shall become indebted to his Council for thirteen or more weeks’ dues, he shall stand suspended from sick and funeral benefits for the space of four weeks after he has paid, the entire amount of his indebtedness in full to date. If he should leave a balance unpaid he shall not be entitled to sick or funeral benefits until all his indebtedness has been paid in full to date.

“Sec. 6. If a member should owe, his Council thirteen or more weeks’ dues and makes payment in full, to date, as stated in section 5, and he is sick or disabled at the tim,e said payment is made, he will not be entitled to sick benefits for said sickness or disability. If he should die and the death, directly or indirectly, result from said sickness or disability, his beneficiaries as nam,ed in these laws shall not be entitled to or be paid funeral benefits, nor shall his wife, children, parents, brothers, sisters or any other person or persons have any claim on this Council for funeral benefits. If a member is sick or disabled in any manner at the time he has made the payment of dues, etc., he shall not be in any manner entitled to sick or funeral benefits.”

The uncontradicted evidence shows the following facts: Max Linka died on October 9th, 1934. He had been taken to a hospital on September 26th, 1934, suffering from the illness which caused his death. At the time he was taken to the hospital he was indebted to the defendant society for dues in the sum of $14.57. The dues covered a period of forty-one weeks. On September 28th, two days after he was taken to the hospital and eleven days before he died, his dues were paid up to date. For a long period prior to that time the decedent had been in arrears for more than thirteen weeks’ dues, although payments on account had been made from time to time.

Thus it appears that the conditions covered by all three of the sections of the by-laws set forth above were present in this case. The member became in arrears for thirteen weeks’ dues; his dues were not paid up four weeks before he died, and lie died of the illness from -which he was suffering at the time his arrearage of dues was paid.

But the plaintiff contends that the decedent was beneficial because he had not been suspended from the defendant’s society. Chapter 9 of the constitution and by-laws of the defendant society provides as follows :

“Whenever a member owes the Council thirteen weeks’ dues at the close of the Council on a regular meeting night, the financial secretary shall, within seventy-two (72) hours thereafter, send to said member by mail a notice to last known post office address on form Ho. 49, dating the notice as of the date of the meeting above named. If the said member fails to pay said dues within four weeks from date of notice, at the end of the said four weeks the financial secretary shall report his name to the Council under new business, and the Councilor shall at once declare said member suspended from the Council.”

It appeared from the testimony that, while the decedent had never been suspended from the council, notice “on form Ho. 49” had been sent him on or about March 31st, 1933. It further appeared that, although payments had been made on account of. the dues of the decedent thereafter, at all times until September 28th, 1935, he was more than thirteen weeks in arrears. Form Ho. 49 states to the member that he is indebted for more than thirteen weeks’ dues and that he is suspended from sick and funeral benefits and will not be entitled to sick or funeral benefits until four weeks after the dues have been paid in full to the date of payment, and that if the dues or a part thereof be not paid within four weeks from the date of the notice, the member will be suspended “from all rights and privileges of the Order.”

The case of Eckert v. Star of Elizabeth Council, &c., 95 N. J. L. 248; 116 Atl. Rep. 708, is cited in support of plaintiff’s contention that she is entitled to death benefits because her son was not suspended by the defendant society. But the by-laws before the court in that case differ greatly from those involved in the present case. There the by-laws required official action upon the part of the lodge to make a member non-beneficial. Here the by-laws specifically provide that when a member becomes in arrears Cor thirteen or more weeks’ clues “He is automatically suspended from all sick and funeral benefits without notice.”

It is clear that the suspension from membership provided for in the by-laws of the defendant is something different from suspension from the right to sick and funeral benefits. In fact a member cannot be suspended from membership until after he has ceased to be entitled to benefits. The notice, called “Form 49,” which must be sent a delinquent member four weeks before he can be suspended, states to the member that his right to sick and funeral benefits has already been suspended and cannot be reinstated until four weeks after his dues have been paid in full. In other words, suspension from membership is not necessary to terminate the right to benefits. A non-beneficial member still retains his right “to a seat in his council during its sessions.” (Section 4.)

The plaintiff further contends that the defendant cannot refuse to pay the death benefits in question because it accepted dues at times when it claims the plaintiff’s son was not in good standing so far as sick and death benefits were concerned, citing Peterson v. Sovereign Camp, 97 N. J. L. 497. There the subordinate lodge collected dues as agent of the parent society and the latter paid sick and funeral benefits where called for by the by-laws. The subordinate lodge had passed a resolution directing the payment of members’ dues to the parent lodge at the proper time, whether paid by the member or not, and permitted members to pay at their convenience. The court held that the parent association could not refuse to pay benefits in a case where the member’s dues had been actually paid to it. The situation was similar to one where an insurance agent pays premiums to his company by arrangement with the insured, and collects from the insured at a later date. Ho such situation exists in this case. The defendant society did not act as agent for a parent association and it paid all benefits required to be paid by the by-laws. The dues of the deceased member in this case were not paid when due.

Plaintiff says further that the case of Ciccone v. The Colonial Life Insurance Co., 110 N. J. L. 276; 164 Atl. Rep. 444, is applicable and that the defendant is estopped from refusing to pay benefits by reason of the fact that it accepted payment of the dues of the plaintiff’s son eleven days before he died. Of course it is true that ordinarily a life insurance company accepting premiums upon a policy that has lapsed, waives its claim to forfeiture. But the contract between the defendant in this case and the plaintiff’s son, as set forth in the by-laws of the defendant, is very different from the ordinary life insurance policy. Payment of dues at a time when a member is not entitled to benefits is specifically provided for. The defendant could not refuse to accept dues from a member unless he has been suspended from membership, but the member is not entitled to benefits unless he has paid his dues in the manner required.

All the other cases mentioned by the plaintiff have been examined and have been found to deal with facts unlike those before the court.

I find no ambiguity in the by-laws of the defendant. They clearly provide that failure to pay dues for a period of thirteen weeks or more automatically suspends the member from benefits, although he retains his membership in the society. While no notice of any kind was required to deprive a member of his rights to benefits, notice on “Form 49” above mentioned was sent the son of the plaintiff on or about March 31st, 1933. The evidence further showed that notice of the amount of dues owing by the plaintiff’s son was sent him regularly every three months. Payment of his dues eleven days before his death did not entitle the plaintiff to death benefits because, under sections 4 and 5 of the by-laws, where a member becomes thirteen or more weeks in arrears for dues, the right to benefits is automatically suspended until four weeks after the date upon which his dues are paid in full, and under section 6 if at the time his delinquencies are paid in full, he is suffering from an illness which causes his death, no death benefits are payable. These are the facts in this case.

Por the foregoing reasons I find myself obliged to render judgment in favor of the defendant and against the plaintiff.


author: McGeatit, C. P. J.

text:
    Union County Court of Common Pleas.
    THE INHABITANTS OF THE CITY OF PLAINFIELD, RESPONDENT, v. TIMOTHY O’DRISCOLL, APPELLANT.
    Decided May 4, 1936.
    For the respondent, William Newcorn.

    For the appellant, Edmund J. Kiely.

   McGeatit, C. P. J.

Police Officer Timothy O’Driscoll was dismissed from the Plainfield police department after a hearing by the common council of the city of Plainfield. He now appeals to this court under chapter 29 of the laws of 1935, which provides that any person who shall be so removed may appeal such removal to the Court of Common Pleas, which shall proceed to hear the matter de novo. The act applies only in those cities which have not adopted the provisions of the Civil Service act and the city of Plainfield has not adopted such provisions.

The city of Plainfield moves to dismiss the appeal on the ground that chapter 29 of the laws of 1935 is unconstitutional because it invades the constitutional prerogative of the Supreme Court to review by certiorari the action of an inferior tribunal. This point has been disposed of in the eases of Edwards v. Petry, 90 N. J. L. 670; 101 Atl. Rep. 195, and Newark v. Kazinski, 86 N. J. L. 59; 90 Atl. Rep. 1016, which hold that such statutes amount to a mere regu-

lation since the judgment of the Common Pleas is ultimately supervised in the Supreme Court on certiorari. The test is whether the proceeding is statutory and not according to the course of the common law. City Bank of Bayonne v. O’Mara, 88 N. J. L. 499; 97 Atl. Rep. 149. The same principle applies where the appeal or review is by way of trial de novo. State v. Court of Common Pleas of Essex County, 2 N. J. Mis R. 1143; City Bank of Bayonne v. O’Mara, 88 N. J. L. 500.

It is further urged that the statute provides for appeal to the “court” rather than to the judge and that this would result in a jury trial. This, however, does not follow. Upon this appeal the Common Pleas do not exercise common law jurisdiction but only the statutory jurisdiction conferred. The implication is that the case is to be tried in accordance with the statutes governing the removal of police officers in such cases and in accordance with the principles laid down by the Supreme Court in numerous cases as to what constitutes a fair trial. See Valentino v. Bird, 57 N. J. L. 538; 31 Atl. Rep. 606.

The motion to dismiss the appeal on the ground that the statute is unconstitutional will, therefore, be denied.


author: Bbogan, Chibe J usticb.

text:
    WALTER ZULKINSKY, BY HIS NEXT FRIEND, JOHN ZULKINSKY, AND JOHN ZULKINSKY, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. PETER GREENBLAT, DEFENDANT-APPELLANT.
    Submitted January term, 1936
    Decided May 16, 1936.
    Before Bbogan, Chiee Justice, and Justices Lloyd and Donges.
    For the plaintiffs-respondents, Andrew 0. Wittreich and Mathew Slepin (Andrew 0. Witireich, on the brief).
    For the defendant-appellant, Collins & Corbin (Edward A. MarMey and Howard F. McIntyre, of counsel).
   Bbogan, Chibe J usticb.

The infant plaintiff, by his next friend, recovered judgment for personal injuries alleged to have been caused by negligent treatment at the hands of the defendant, a dentist. His father likewise had judgment for loss of the boy’s services and the expense incurred for doctors’ bills and hospitalization in treating his son.

The appellant challenges the judgment on the ground that the court erred in rejecting motion for directed verdict in defendant’s favor. That motion was advanced on the ground that there was no proof of defendant’s negligence or proof of any negligence that was the proximate cause of the plaintiff’s injury.

Briefly, the following are the facts: The infant plaintiff, age nine, suffered from toothache. At the time he was brought by his mother to the defendant’s office, the gum area around the aching tooth was, as she described it, flaming red. The dentist, in preparation for the extraction of the tooth, inserted a needle containing an anesthetic into the gum on both sides of the tooth; instructed the patient to remain in the waiting room for about ten minutes, when he extracted the tooth from the lower jaw; the cavity was packed with cotton and the boy went home. His face became swollen and he suffered great pain. Returning to the dentist the next day the cavity was probed and the dentist suggested that the boy be taken to a medical doctor. The net result was that the boy became seriously ill, remained in one hospital for four weeks and in another for four months before he was discharged.

It is conceded that he suffered from osteomyelitis. It seems likewise to be conceded that an infection was present in the gum area around the tooth at the time the tooth was extracted by the defendant.

It is the plaintiff’s claim that the serious illness of the boy was the result of the negligent treatment given him by the dentist, the evidence in support of that charge being that the dentist used an improper method to produce anesthesia before extracting the tooth. It is charged that the osteomyelitis was brought about by the defendant’s using the infiltration method to cause loss of sensation which, by the injection of a needle into the infected area, and the consequent puncture of the tissues, permits the infection to escape into thp jaw bone region—-this, plaintiff’s witnesses claim is an improper and discarded method—instead of the conductive method which calls for the injection of an anesthetic outside of the infected area.

The question before us narrows down to whether the defendant possessed and used that degree of care, skill and diligence possessed by the average dentist in good standing.

The rule in cases of this kind has been stated in Klitch v. Betts, 89 N. J. L. 348, 353; 98 Atl. Rep. 427, "the dentist is not an insurer of results; he is not answerable for infection or results which follow the extraction of teeth provided he has used due skill and care in the extraction and subsequent treatment. In offering his services to the public he impliedly contracts that he possesses and will use in the treatment of his patients a reasonable degree of skill and learning and that he will exercise reasonable care and exert his best judgment to bring about good results. A failure to perform his duty renders him liable for injuries caused thereby.”

Whether this defendant used that standard of care which the law requires of him was a matter for expert testimony. One medical expert testified the boy had “a very messy infection * * * infection of the muscles outside the jaw and down below the jaw and involving the whole area * * * an acute condition of the bone * * * acute osteomyelitis;” that he threw off dead bone. Another expert witness, a practicing dentist of sixteen years experience, testified, in answer to a hypothetical question, that the method of anesthesia used by the defendant was by infiltration; that the area around the tooth, at the time the boy was presented to the defendant for dental services, was in an infected condition; and that the defendant dentist did not use the kind of anesthetic suitable for the condition in question and did not exercise the skill that is ordinarily used by members of his profession in cases of this character * * * that under the condition described, the proper method would be the conductive or general anesthesia and that good practice * * * required conductive anesthesia to prevent the spread of infection, which is a thing to be avoided; and * * * further, resting on the plaintiff’s description of his sensations in various parts of his mouth at the time the anesthetic was injected, * * * the infiltration method of anesthesia was used, and that this method might reasonabty be expected under the circumstances and the-condition of the gum, at the time, to result in osteomyelitis and cellulitis.

Other dental experts for the plaintiff corroborated this testimony that the ordinary practitioner should suspect infection when presented with the condition which the boy exhibited ; that it was bad practice, contrary to that of the ordinary skillful dentist, to use the infiltration method of anesthesia by injection into the infected region instead of the conductive method which calls for injection outside of the infected area.

In answer, the defendant himself admitted that an anesthesia by infiltration on the lower jaw, as here, would not have been proper and that in this case he used the approved mandibular (conductive) method. It was further testified by experts that the defendant used and exercised the skill that is required and ordinarily possessed by others in his profession in his treatment of the boy and, further, that even if the infiltration method was used it would be in keeping with proper practice in a great many instances.

There was persuasive proof offered by the defendant and his witnesses that his treatment of the boy was entirely proper and that the methods adopted were up to the ordinary degree of skill and care required by the law of those who administer to the ills of others, but we cannot here consider the quality or the amount of proof. To us there seems to have been, at the time motion was advanced for a direction of verdict for the defendant, a conflict of fact that made for consideration by the jury.

The rule is that "if there is any evidence which, standing alone, or considered apart from opposing evidence, is, if believed by a jury, legally sufficient, or might reasonably tend to support the verdict, though such evidence may not be of an entirely certain and satisfactory nature, it will not be disturbed for, upon the mere weight of evidence, the jury are the judges. Inferences of fact are to be deduced by the jury, and whenever there is evidence from which an existence of fact sufficient to support a verdict might have been inferred, the verdict will not be disturbed. 3 Cyc. 348; Klitch v. Betts, supra (at p. 356).

In our judgment, the trial court was justified in denying the motion for directed verdict.

The judgment will be affirmed, with costs.


author: Perskie, J.

text:
    MARY TITONE AND GIACOMO TITONE, PLAINTIFFS-APPELLEES, v. ECONOMY BOOTERY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 31, 1936
    Decided May 21, 1936.
    Before Justices Heher and Persicie.
    Por the appellant, William J. Baker (Charles Hershenslein, of counsel).
    For the appellees, Sydney Shulman (Benjamin Baron, of counsel).
   The opinion of the court was delivered by

Perskie, J.

Did the trial judge, who sat in this cause without a jury, correctly deny defendant’s motions to nonsuit and to direct a verdict in its favor and against the plaintiffs ? We think he did.

This was a suit by the wife and husband to recover damages from defendant for injuries sustained by the wife as a result of being struck on her head and shoulders with an electric light bulb while walking in front of defendant’s store, and while directly underneath defendant’s electric sign which was some twenty-five or thirty feet above its store. After she was struck she looked up and saw one bulb in the sign missing, and further observed that the remaining bulbs were ol the same character as the one which struck her.

The testimony for the defendant, in substance, was that “it was an enclosed sign, the bulbs were inside [thereof] and all covered up.” In short that the sign was so constructed that it was an utter impossibility for a bulb to fall elsewhere than inside of the frame of the sign. An entirely different character of a'sign was described for the plaintiffs. Their testimony, in substance, was that it was a wooden sign, gold lettered, with a sort of tin canopy, and that the bulbs were “under the top of the sign,” and that they were not enclosed. This sharp divergence of proof gave the trial judge great concern. He so told counsel for the respective parties. He said that he would reserve decision and asked counsel to see what, if anything further, by way of proof, such as the makers of the sign, people in the neighborhood, &c., they could find which would help him determine the truth.

The case was tried on September 12th, 1935. On the very next day the attorney for the defendant addressed the following letter to the attorney for the plaintiffs:

“William J. Baker,

26 Journal Square,

Jersey City, H. J.

September 13, 1935.

Harry Melnick, Esq.,

473 Broadway,

Bayonne, N. J.

Be: Titone v. Economy Bootery.

Dear Mr. Melnick:

You will recall that in the trial of the above case before Judge Melniker yesterday there was a direct conflict in testimony as to the type of electric sign which the defendant had in front of his premises. My client, Mr. Fishman, who testified in his behalf, called me on the telephone this morning and advised me that at the time of the alleged accident there was in front of his premises a sign containing exposed electric bulbs. He desires that I call the court’s attention to this fact and I accordingly am writing you at this time in order that you may communicate same to the court.

The situation is an unusual one but you will agree with me that Mr. Fishman is entitled to commendation for so frankly conceding that he was mistaken in his testimony.

Yours very truly,

William J. Baker."

The trial judge entered a judgment in favor of the plaintiffs and against the defendant in the sum of $200.

When the motions to nonsuit and to direct a verdict were made defendant necessarily admitted the truth of plaintiffs’ testimony and the inferences that could legitimately be drawn therefrom. And such motions were properly denied when, as here, the testimony and the inferences to be drawn therefrom will support a verdict for the plaintiff. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L: 487; 170 Atl. Rep. 22; Repasky v. Novich, 113 N. J. L. 126; 172 Atl. Rep. 374. Circumstantial or presumptive evidence in determination of civil causes is “a mere preponderance of probabilities, and, therefore, a sufficient basis of decision.” Jackson v. Delaware, Lackawanna and Western Railroad Co., supra.

Moreover, we think that the doctrine of res ipsa loquitur finds perfect application in this cause. But, even if the proof, such as it was, offered for defendant can be considered as a “going forward,” or “explanatory evidence,” still a jury question was presented. Gordon v. Weinreb, 13 N. J. Mis. R. 835; 181 Atl. Rep. 435.

Judgment is affirmed, with costs.


author: Porter, C. C. J.

text:
    Essex County Circuit Court.
    DAISY COLLINS, PLAINTIFF, v. EAGLE INDEMNITY COMPANY, DEFENDANT.
    Decided May 8, 1936.
    For the plaintiff, Frank G. Turner.

    For the defendant, Charles Stockdell Gray and McCarter & English (Gerald M. F. McLaughlin and Herbert B. Baer, of counsel).
   Porter, C. C. J.

This case was tried by the court without a jury by consent of the parties. It appears that Daisy Collins, the plaintiff, was struck and injured on November 9th, 1932, by an automobile owned by Louis Stavitsky, which was being operated by Harry Galowitz, an employe of the Galowitz Garage, Incorporated. Galowitz Garage, Incorporated, conducted a public garage in which the automobile in question was kept. Suit was instituted in the Essex County Court of Common Pleas by Daisy Collins against Louis Stavitsky, Harry Galowitz and Galowitz Garage, Incorporated, to recover damages for injuries sustained by her, charging negligence by the respective defendants. The trial of that suit resulted in a verdict-for the plaintiff of $2,500 against Harry Galowitz and Galowitz Garage, Incorporated, and in favor of the defendant Stavitsky.

The Eagle Indemnity Company, defendant herein, issued a policy of insurance to Stavitsky indemnifying him against liability in the operation of his automobile, subject to certain conditions therein expressed. The policy was in effect at the time of the accident and covered the automobile involved therein. Execution on the judgment recovered in the Common Pleas Court has been returned unsatisfied. The suit at bar is to recover the amount oí the verdict against the defendant insurance company.

Condition 3, subdivision D of the policy provides that there was no coverage where damage resulted while the automobile was being operated by an employe of a public garage. The question presented here for decision is whether there is any liability of the defendant under its policy. The insurance contract was to indemnify Stavitsky. If he was responsible to the plaintiff for her injuries, there could be no question of the liability of the insurance company under its said policy. That question has been decided by the jury in the Common Pleas suit. There the issue of fact was as to the status of Galowitz while driving the car. The question there presented was whether he was the agent of Stavitsky or of the Galowitz Garage, Incorporated. The finding of the jury was that he was the agent for the garage company and not of Stavitsky. Consequently, the verdict was against Galowitz and the garage company only. Those questions having been judicially determined between the parties hereto or their privies, the doctrine of res adjudícala or estoppel applies and is a bar to recovery.

The recent case of Peterson v. Preferred Accident Insurance Co., 114 N. J. L. 180; 176 Atl. Rep. 897, is in point and is controlling. As was said in that opinion, the doctrine of estoppel “in similitude of, if not entirely upon the.doctrine of res adjudícala” is the correct principle of law. This court followed that decision in striking the complaint where the same question as the case at bar was presented in Berry v. Travelers Insurance Co., 14 N. J. Mis. R. 222; 183 Atl. Rep. 824. The fact that the defendant insurance company was not a party to the Common Pleas suit and did not defend the action for its assured does not, in my opinion, change the application of the principles of the Peterson case, supra, from the instant case.

Asnis v. Bankers Indemnity Insurance Co., 110 N. J. L. 134; 164 Atl. Rep. 307, relied upon by the plaintiff, is not in point for the reason that the driver there was not shown to have been the agent of the garage man at the time of the accident; whereas here, the fact has been judicially established that the driver was the agent of the garage company.

Por those reasons, the verdict will be for the defendant.


author: Perskte, J.

text:
    BRAWER BROTHERS, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLEE, v. DeGISE SILK DYEING COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 31, 1936
    Decided May 21, 1930.
    .Before Justices Hewer and Pbrskie.
    For the appellant, Archibald Krieger.

    For the appellee, Abraham Brenman.

   The opinion of the court was delivered by

Perskte, J.

This cause comes to us on defendant’s appeal from a judgment entered by the trial judge, sitting without a jury, in favor of the plaintiff below in the sum of $29.1 and costs.

Plaintiff’s suit against the defendant was for damages (cost of repairs) to its freight elevator caused by the alleged negligent, careless and reckless manner in which defendant’s servant operated the elevator; the manner in which he placed the goods on the elevator, and the position which he himself assumed while on the elevator. (Answer to second interrogatory.)

The state of case, as settled by the court, discloses, substantially, that the elevator was located in a building owned by the plaintiff, in Paterson, New Jersey. This elevator is used by all tenants in the building, and by those who have business with the tenants. It is operated with a single hoisting cable, controlled by the person using it, which lifts the elevator up and down, upon proper manipulation of the control cable located on the side of the car next to the front gate. The cable is adjusted so that the car automatically stops at the bottom floor. It has a capacity of four thousand pounds and is equipped with scissor extension or collapsible gates at the front and rear. Each gate is fixed into a guide track by means of iron pins and the gate opens and closes when propelled along this guide track. The shaft in which the elevator is located has a door on the front side for entrance into each floor of the building. In the shaftway are located several windows, one above the other. On the day of the accident, and before it was used by defendant’s servant, it was inspected by plaintiff’s superintendent and found to be “in proper working condition.”

On August 1st, 1934, Mosca, defendant’s servant, called to take one hundred and forty-four pieces of silk, weighing one thousand and seventy pounds, from one of the plaintiff’s tenants located on the fourth floor. On the trip to the fourth floor he experienced no difficulty and found the elevator operating properly. This load was an unusually large one for the elevator; it contained fifty pieces more of silk than had ever been carried on one elevator trip. Mosca packed the silk on the elevator in such a manner as to force the rear collapsible gate to bend to such an extent that the gate scraped on the walls of the shaft. Mosca was not standing at the control cable but was sitting on the pile of silk when the elevator in its descent reached a window opening; the protruding gate caught on the window sill and the elevator was held suspended there for a short time. The control cable was not operated by Mosca with the result that the machinery was kept in motion and the hoisting cable continued to unwind causing it to accumulate slack. During this time the elevator was sustained in its suspended position solely by the contact of the elevator'gate to the shaft. The door soon gave way and with this contact removed the elevator dropped to the basement, where it automatically came to a stop and was damaged. Since the door was open, Mosca came sliding out on the silk after which the extension gate, which had broken off, fell through the shaft.

Mosca, the only witness for the defendant, testified that he was employed by the defendant and that on the day in question he went to the premises for the purpose of obtaining this silk. He stated that he entered the elevator and that it worked properly on the trip to the fourth floor. He placed the one hundred and forty-four pieces of silk twenty on each side and the balance between these pieces. The car descended for a short distance and then stopped altogether; that he pulled on the operating rope but with no effect. After a short interval the elevator dropped and he got out of the car. He stated that he did not know the cause of the accident and that he did not push the gate against the wall of the elevator shaft and that he was not sitting on the goods when the elevator descended.

Under this posture of the proofs it was open to the trial judge, as the trier of the facts, to find, as he did find, that the failure of the elevator and the damages caused to it were brought about by the gate being loosened from the guide track and being precipitated against the elevator shaft wall; that while this obstacle remained the elevator cable unwound itself and after the obstacle against the wall was removed no force remained to permit the elevator to proceed in its normal course and it dropped to the bottom. In other words, that the defendant’s servant was guilty of negligence as charged in the state of demand. Accordingly defendant’s motion at the close of the trial for a nonsuit was denied.

"Was this error? Ho. It has been said time and again by this court that, under such circumstances, a finding of fact supported by legal evidence, such as here presented, will be sustained unless other legal error appears. Miko v. Feldman, 13 N. J. Mis. R. 839; 181 Atl. Rep. 632.

Does other legal error appear? Ho.

The president of the plaintiff corporation testified that about half a minute after lie heard the crash of the accident he was on the scene. He saw defendant’s servant standing in the yard with his hand slightly bleeding. He engaged in conversation with him and asked him what happened. Mosca told him that “the door was pushed out and the elevator crashed.” It is argued that it was error to admit this testimony. We do not think so. It was part of the res gestee. Hennaford v. Central Railroad Company of New Jersey, 115 N. J. L. 573; 181 Atl. Rep. 306; affirmed, case No. 51, February term, 1936.

There is no merit to the other points argued.

Judgment is affirmed, with costs.


author: La whence, C. C. J.

text:
    EDWARD ACKERMANN, EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF BERTHA ACKERMANN, DECEASED, AND INDIVIDUALLY, PLAINTIFFS, v. INTER CITY TRANSPORTATION COMPANY, INCORPORATED, AND ANTHONY GUSTUS, DEFENDANTS.
    Decided April 13, 1936.
    For the rule, Charles A. Rooney.

    Opposed, Isadore Rabinowitz and Samuel C. Meyerson.

   La whence, C. C. J.

The accident giving rise to this suit involved a collision between an automobile owned and driven by Edward Ackermann and a bus owned by defendant transportation company and operated at the time by its employe, G-nstus. In the Ackermann car were his wife, Bertha, and Mr. and Mrs. Charles Severo, as passengers. The vehicles came together at the intersection of Madison and Tenth avenues, in Paterson, at an early hour in the morning, when the traffic generally was light. The roadways were wet, due to rain earlier in the evening and a continuing drizzle thereafter. Mrs. Ackermann received an injury of which she died. The other passengers were injured, but not seriously. Dr. Ackermann was also injured and brought the present suit to recover therefor and for the damage to his automobile. He added to the complaint a count resting on the Death act (2 Comp. Stat., pp. 1907, 1908, §§ 7, 8) for the financial loss resulting to him from the death of his wife as the surviving husband, since there were no children. Mrs. Ackermann died testate. In her will she appointed the husband as executor. At the time of her death she was fifty-three years of age and her husband fifty-nine. He for many years had been practicing as a physician at Dover and she had assisted him in his office and elsewhere as a practical nurse. To enable her to do so the household duties were performed by a housekeeper employed for that purpose.

At the trial, the jury returned a verdict in favor of plaintiff and against defendants, awarding Dr. Ackermann individually $1,500 and as executor of his wife’s estate $10,000. Under defendants’ rule, it was urged that the verdict on the issue of negligence and the contributory negligence of plaintiff was contrary to the weight of the evidence, due to what was said to be a sympathetic attitude on the part of the jury, and that the amount of the awards is excessive.

When the accident happened, the bus was approaching the intersection on Madison avenue and on the right of the Ackermann car which entered the intersection from Tenth avenue on the left of the bus. In ordinary circumstances the bus had the right of way, and the evidence as to the manner in which the two vehicles were driven into the intersection required scrutiny on the part of the jury as to the speed and the degree of care exercised by the respective drivers to discover the other approaching. Negligence and contributory negligence were pleaded. Neither vehicle was stopped before it was driven into the intersection, and there was evidence indicating that both had been driven into it at an excessive rate of speed.

A sharp issue arose at the trial as to whether either driver had made proper observation for the approach of the other. Dr. Ackermann testified that when he reached the nearest corner of the intersection in the direction from which he had come, he looked to his right and could see a distance of one hundred and twenty-five feet on Madison avenue, but did not see the bus approaching, or any vehicle in fact, and proceeded without slackening his speed which was approximately twenty-five miles an hour. The driver of the bus stated that when he was about eight feet from the crosswalk on Madison avenue, he looked to his left and saw a car coming one hundred or more feet away. He had blown his horn forty or fifty feet back from the intersection. He said he had reduced the speed of his bus to about fifteen miles an hour as he drove into the intersection, although there was some contradiction in this regard in other testimony at the trial. The collision occurred at about the center of the intersection and there was evidence which sufficiently disclosed that the Ackermann car struck the bus on the left side back of the driver’s seat. That both drivers were mistaken as to the distance separating the vehicles as they were driven into the intersection is clear. No horns were blown at a time when they would be effective; that on the Ackermann car not having been blown at all, because of the failure of the driver to make proper observation to discover the approaching bus. There was evidence that the lights on both were burning. When a driver involved in an accident declares he did not see that which he should have seen, if he had been exercising due care, and drives into an intersection at a rate of speed not reasonable in the immediate circumstances and conditions confronting him, he may not complain if such negligence is found to be the producing or concurring cause of the collision that ensues. Here there was ample evidence to support the defense alleging the con-tributary negligence of Dr. Ackermann, and it appears clear that the jury did not give sufficient consideration to this defense. To exonerate him entirely from responsibility, therefore, was not justified, and indicates, under the evidence, a mistake in the finding of no negligence on the part of plaintiff. There should for that reason be a new trial as to him individually.

It does not follow, however, that the same result should be reached as to the claim under the Death act. It was conceded on the argument of the rule that the concurring negligence of both drivers would not prevent plaintiff as executor of his wife’s estate from recovering. While the primary negligence of the driver of the bus was found and appears to be supported by the evidence as a whole, the failure to find the contributory negligence of Dr. Ackermann, as it could have been, does not justify disturbing the verdict as to defendants’ liability. But it was further urged that the sum awarded on this count in the complaint was excessive. This appears to be so. Considering the respective ages and the expectancy of the husband and wife, together with the evidence of the assistance rendered by her to him as a practical nurse in his profession, and examining such cases as were cited on the argument of the rule, which appear applicable, it would seem that $8,000 would have been adequate. If plaintiff as executor consents, consequently, to reduce the verdict to that amount, the rule will be discharged in this respect, otherwise it will be made absolute not only as to plaintiff’s individual claim as indicated above but as to damages only on the count under the Death act.


author: Davidson, C. P. J.

text:
    Passaic County Court of Common Pleas.
    DORA FLAMM AND FREDA FLAMM, PETITIONERS-APPELLEES, v. CITY OF PASSAIC, RESPONDENT-APPELLANT.
    Decided May 6, 1936.
    Por the petitioners-appellees, Bernard Feinberg.

    Por the respondent-appellant, Skeffington c§ Walker.

   Davidson, C. P. J.

This is an appeal from the findings of the workmen’s compensation bureau in a cause wherein the facts are undisputed and but a single question is presented for determination.

The decedent, a member of the fire department of the city of Passaic, came to his death on Pebruary 9th, 1934, through accident arising out of and in the course of his employment. Under a salary-fixing ordinance, which, after a referendum vote, became effective on January 1st, 1934, decedent’s salary was $2,500 per annum and he had been receiving his full salary in accordance with the provisions of said ordinance from the time of his appointment until September, 1932, when, prompted by prevailing financial conditions, a resolution was adopted by the board of commissioners of the city of Passaic requesting the members of the police and fire departments to contribute to the city an amount equal to ten per cent, of their salaries commencing September 1st, 1932, and continuing until August 31st, 1933. The members of the two departments consented in writing to make the contribution and expressly authorized the city treasurer to withhold the said percentage from their salary checks, both resolution and consent definitely stipulating that the making of the contribution was not to be considered as abridging or affecting in any way any rights, privileges or benefits belonging or accruing to the members of said departments under any law or laws of New Jersey with reference to retirements and/or pensions. Decedent, pursuant to this resolution received as salary for the 3rear terminating August 31st, 1933, the sum of $2,250 and in September, 1932, without the passage of ordinance, resolution or other proceeding save oral agreement, an additional contribution of ten per cent, was authorized, so that at the time of decedent’s death, he was actually receiving the annual sum of $2,000.

The sole question to be determined is whether the compensation awarded should bo based upon the annual salary of $2,500 as fixed by the ordinance, or upon said amount less the annual contribution of $500. The issue turns upon the wages of decedent at the time of the accident which resulted in his death.

Dor all practical purposes, the terms “wages” and “salary” are synonymous and both mean “a sum of money periodically paid for services rendered,” although in general good usage the term “wages” indicates pay received for a somewhat lesser degree of employment than that denoted by the word “salary,” which is suggestive of a larger compensation paid for more important services. The Workmen’s Compensation act [Pamph. L. 1911, ch. 95, p. 144, as amended, Pamph. L. 1913, ch. 114, p. 311 ; Pamph,. L. 1919, ch. 93, p. 211; Gum. Supp. Comp. Stal., p. 3885, § **236-32 (g) construes “wages” to mean “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.”

Section 1 of “An ordinance to fix and determine the salaries of the members of the fire department of the city of Passaic, N. J.,” passed at a regular meeting of the board of commissioners held on September 25th, 1923, and which took effect after its adoption by a referendum held on November 6th, 1923, definitely fixed decedent’s salary during “the fifth year and each year thereafter” at $2,500 per year. This ordinance still appears to be in full force and effect, never having been repealed or modified and there is no paper-writing in existence nor agreement of any kind reducing the salary schedule as therein definitely fixed. While it may well be that by reason of lack of municipal funds due to insufficient tax receipts the firemen in their own best interests practically felt obliged to consent to remit or contribute twenty per cent, of their base salary, there was nothing compulsory about the arrangement on the part of the municipality. Each member of the department individually, in accordance with the request of the resolution adopted by the board of commissioners, consented in writing to make the initial contribution of ten per cent, from September 1st, 1932, until August 31st, 1933.

Although no further or other written consent to the continuation of the remission or contribution appears to have been requested by the board of commissioners or given by members of the fire department, an additional contribution of ten per cent, was, in September, 1933, orally agreed upon, so that decedent at the time of his death was actually receiving the actual sum of $2,000.

Certainly the mere fact that the contribution was consented to and made in unison by all members of the department, cannot cause it to assume any other character solely because it did not meet with objection on the part of one or several of those affected. There was nothing to prevent any individual from refusing to consent to the remission or contribution and if it was in fact a temporary contribution by one and not a reduction it was so for all. The concerted nature of the action did not make it other than individual in its application.

Some municipalities during the past several years have confronted a financial situation so severe that their employes received only a percentage of their contract wages, or in many instances, nothing at all for extended periods. Certainly it can hardly be said they had no compensable wage if they met with an accident during one of the “payless pay day” intervals.

Appellants contend that the contribution or deduction was a definite reduction or change in salary and not merely a temporary arrangement. While it is conceded that the contributions continued for practically a year and a half prior to decedent’s death, it does not appear that there was any intention that the arrangement was to be a permanent one. “Temporary” is the opposite of “permanent” and means “for a limited time only,” and the resolution of September 1st, 1932, indicates that it was primarily considered because of the financial condition of the city. There is nothing to indicate that the fixed salary schedule would not be followed when financial conditions permit and it would seem that the fact no action of any kind would be required of anyone to make such enforcement effective is a true indication that the arrangement was a temporary one and so considered and intended by both the city and members of the departments.

It is further contended that Pamph. L. 1933, chapters 17 and 446, and chapter 3 of the laws of 1915 give municipalities power to reduce the salary or wages of employes by resolution. This contention is, of course, correct, but inapplicable to the case under consideration for the reason that the municipality did not take advantage of the act, and while it did request each member of the fire department to sign a written consent to a contribution, it never adopted a resolution authorizing any deduction.

My conclusion is that the determination of the deputy commissioner of the workmen’s compensation bureau should be affirmed, and the appeal, therefore, is dismissed.


author: G-oldberger, D. C. J.

text:
    Perth Amboy District Court.
    CONSOLIDATED PLAN OF NEW JERSEY, INCORPORATED, PLAINTIFF, v. JOHN D. GILLIS, DEFENDANT.
    Decided May 28, 1936.
    For the plaintiff, Harry J. Oultler.

    For the defendant, Fleming & Pottler.

   G-oldberger, D. C. J.

This suit arises out of a promissory note dated February 8th, 1929, and due one month later. The defendant was a surety upon said npte, the maker not having been joined because of his non-residence or lack of whereabouts.

From records filed in this case, it appears that the summons was received by the clerk of'the court on February 5th, 1936, and on the same date signed and sealed by him and returnable February 14th, 1936. The sergeant-at-arms received said summons and unable to make service within the time fixed by the same, undertook to change the date of issuance and the return date to February 21st, 1936. Again being unable to serve the defendant within the required time, he once more changed the return date to March 6th, 1936, as well .as changed the date'of issuance and finally made service.

The defendant now moves for the dismissal of the summons and state of demand on the ground that suit was not started in the six-year period and is barred because of the statute of limitations. In opposition to the motion, the plaintiff cites the case of Whitaker v. Turnbull, 18 N. J. L. 172, where the rule is stated as follows:

“A suit is actually commenced as soon as the writ is sealed and issued out of the office, in good faith, for the purpose of being served or proceeded on, and that purpose is not afterwards abandoned.”

The Practice act provides that every process shall bear date on the day on which the same shall be issued. 3 Comp. Stat. 1910, p. 4065, § 47. However, we are not concerned with the Practice act. We must follow the procedure established by the District Court act which specifically provides summons shall be tested the date on which it is signed by the clerk. The distinction in various courts is obvious. It is true that the original summons in this case was properly issued and signed by the clerk in the name of the judge on the 5th day of February, 1936, but upon the failure of the sergeant-at-arms or constable to make proper service within the time required by the act, it was his duty to return the same to the clerk of the court and have the clerk issue a new summons and sign and seal the same in accordance with the District Court act.

The action of the sergeant-at-arms in changing the date of issuance and changing the return date is a nullity. These duties are to be performed by the clerk of the court and by him only.

Inasmuch as the District Court act provides that the summons shall be tested on the date it is signed by the clerk, the service of the summons as changed by the sergeant-at-arms from time to time was absolutely void, and being without the six-year period results in a nonsuit, and it is so ordered.


author: Boduste, J.

text:
    LEONARD SONENTHAL, BY HIS NEXT FRIEND, SIGMUND SOSENTHAL, PLAINTIFF-APPELLEE, v. HARRY WEINSTEIN & SON, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Bodine and Heher.
    Dor the defendant-appellant, Zucher & Goldberg.

    Dor the plaintiff-appellee, Abraham, Manlcowitz.

   Boduste, J.

By stipulation these five cases were tried together in the District Court of the city of Orange. Plaintiffs all suffered from ptomaine poisoning, the proofs indicating that it resulted from smoked white fish, which had been purchased from Louis Pretiks, a retail dealer in groceries and delicatessen products. The smoked white fish he had purchased from the defendant company. The case was tried before the court without a jury.

The fish that was sold was procured on May 12th, 1934, the day of resale. The fish, when received, was placed upon a porcelain platter on the counter in Pretiks’ store, and as purchases were made the fish was cut with a stainless steel knife. It appears that the defendant’s course of business is to purchase fish, caught in the far north, from a cold storage concern in New York. It thaws them in cold water and after they are scaled and cleaned they are placed in brine for a time, when they are hung on rods and placed in a smoker. When cured they are kept in a refrigerator until required for delivery to local dealers. The box in which the fish is delivered is not sealed. Defendant’s plant is inspected weekly, and the proofs indicate that a satisfactory degree of cleanliness was maintained about the premises at all times. The brine solution is sufficiently strong to destroy any germ other than anthrax, and there was no proof that the plaintiffs suffered therefrom.

The case is not similar to one where deleterious substances have been found in a sealed package, or packages have been improperly sealed causing fermentation. Dish, if improperly cared for, deteriorates rapidly. There is nothing in the record to indicate that the defendant, in any respect, failed to exercise due care before the product was placed in the hands of the retailer for sale. While exposed on the open counter in Pretiks’ store, the contamination causing the injury to the plaintiffs may have very well occurred. The case is, therefore, barren of evidence that any lack of care upon the part of the defendant company was the proximate cause of the injury suffered.

Motion for a nonsuit should have been granted. The j udgments, therefore, are reversed, with costs.


text:
    BENJAMIN MONES, LOUIS J. MONES, MICHAEL MEISEL, MEYER MONES AND JACOB B. MONES, CO-PARTNERS, TRADING AS PHILADELPHIA MAGNESIA COMPANY, PLAINTIFFS-APPELLEES, v. IMPERIAL BOTTLING WORKS, INCORPORATED, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided June 4, 1936.

      Before Justices Bodine and Heher.
    For the defendant-appellant, David M. Litwin.

    For the plaintiffs-appellees, Albert B. Melnik.

   Per Curiam.

Plaintiff sued and had judgment for the price of a quantity of magnesia sold to the defendant for resale. The Uniform Sales act of this state (4 Comp. Stat., p. 4651, § 2, ¶ 15), provides that: “Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality.” The law of Pennsylvania is identical. 55 Corp. Jur. 45, note 24.

The proofs indicate that the magnesia in question was sold by description and not by trade name and did not comply with the formula required by the United States pharmacopoeia, since the standard therein stated was fifty-six per cent., whereas the magnesia in question was but approximately forty per cent.

Defendant was convicted of the violation of the Food and Drugs act of this state, by reason of the sale of part of the drugs for which the plaintiff had recovery. It seems, therefore, that the goods did not comply with the implied warranty of merchantability. Certainly, a dealer who purchases for resale cannot be said to be without warranty, if the goods which he purchases cannot be resold without violating the law of this state. It seems equally clear that a drug of less strength than required by law was adulterated even though not harmful.

The judgment must be reversed, with costs.


author: Pee Ctjbiam.

text:
    RISING & THORNE, A CORPORATION, PLAINTIFF-APPELLEE, v. FRANK M. KENNEDY PAINT AND COLOR COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Bodine and Hehek.
    Por the defendant-appellant, Joesph C. Glavin.

    Por the plaintiff-appellee, Wincurd & Winard (Samuel 1V incurd).

   Pee Ctjbiam.

Plaintiff had judgment for $271.15. Defendant appeals. The plaintiff is a retail dealer in paint. The defendant, a manufacturer, being anxious to introduce its line of paint into the plaintiff’s store, represented that it would select the color and size of containers deemed most easily salable; further, agreeing that if the plaintiff should find any of the paint selected unsalable it would exchange the same for paint of other colors and containers to be selected by the plaintiff. The plaintiff finding some of the paint unsalable informed the defendant that it desired to effect an exchange. This defendant refused to do. The plaintiff then packed and returned the paint and sued for breach of the contract.

Defendant made a motion for nonsuit on two grounds: "1. That plaintiff’s remedy was specific performance in chancery. 2. ISFo damages were proven because the agreement as alleged in the state of demand was to the effect goods would be exchanged, and did not allege that the price of the goods would be returned.”

Answering the second contention first, it was stipulated by counsel that the cost of the paint returned was $271.15. The proofs clearly establish an agreement whereby if the goods sold were incapable of-ready resale other goods would be substituted therefor. Such an executory agreement may be the basis of an action. Smith v. York Manufacturing Co., 58 N. J. L. 242; 33 Atl. Rep. 244. The measure of damages, in the absence of other proof, would seem to be the price paid for the goods returned. As to'the first ground, it need only be noted that an action to recover damages for breach of contract is alone cognizable in the law courts.

Judgment is affirmed, with costs.


text:
    G. EDWARD MYERS, PLAINTIFF-APPELLEE, v. COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Bodine and Heher.
    For the defendant-appellant, Edmund A. Rayes.

    For the plaintiff-appellee, Frederick F. Richardson, Morris Roth and Stephen V. R. Strong.

   Per Curiam.

Plaintiff had judgment against the county of Middlesex for the storage of a snow plow and services rendered in assembling tractors and plows for clearing snow. The case is entirely devoid of any evidence that a contract was made by an authorized agent of the municipal corporation or had ever been ratified by it. Potter v. Borough of Metuchen, 108 N. J. L. 447; 155 Atl. Rep. 369; Ratajczak v. Board of Education of Perth Amboy, 114 N. J. L. 577; 177 Atl. Rep. 880.

The judgment, therefore, must be reversed.


author: Pee Ctjeiam.

text:
    ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LIMITED, A CORPORATION OF THE REPUBLIC OF SWITZERLAND, PLAINTIFF, v. RUTH KING, AN INFANT, JOSEPH KING, AS NEXT FRIEND OF SAID RUTH KING, AND OZER ARBITBILT, AND JOSEPH KING, INDIVIDUALLY, DEFENDANTS.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Boduste aud Hehee.
    For the defendants, Benjamin Baron.

    For the plaintiff, Schneider <fs Schneider.

   Pee Ctjeiam.

Defendants, residents of Hudson county, moved to change the venue from Essex county where the plaintiff, a foreign corporation, maintains its principal office in this state, to Hudson county where not only the defendants reside but the cause of action arose. The motion should be granted. Delaware, Lackawanna and Western Railroad Co. v. North Jersey and P. M. Ice Co., 65 N. J. L. 524; 47 Atl. Rep. 471; Starke Advertising Agency v. Adams, 74 N. J. L. 143; 64 Atl. Rep. 990.

The attorneys for the plaintiff Sled no brief.


author: Pee Cukiam.

text:
    GUSSIE GROSS, PLAINTIFF-RESPONDENT, v. HUDSON AND MANHATTAN RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Bodine and Hehee.
    For the defendant-appellant, Collins & Corbin, Edward A. Marldey and Patrick F. McDevitt.

    For the plaintiff-respondent, Feinberg <& Feinberg.

   Pee Cukiam.

The defendant appeals from a judgment in favor of the plaintiff. The case was properly submitted to the jurjr, and the issues of negligence and contributory negligence were for them. McPherson v. Hudson and Manhattan Railroad Co., 100 N. J. L. 262; 127 Atl. Rep. 23; affirmed, 101 N. J. L. 410; 128 Atl. Rep. 231. Suffice it to say, that it clearly appears from the proofs that after the plaintiff had boarded the defendant’s train the door was suddenly closed before she could reach a place of safety. The door caught her left hand causing the injuries of which she complained. She was carrying a large bundle which made it necessary to enter sideways.

Judgment is affirmed, with costs.


text:
    CORNERSTONE BUILDING AND LOAN ASSOCIATION OF NEWARK, NEW JERSEY, A CORPORATION, PLAINTIFF-APPELLANT, v. BERNARD TALLMAN, DEFENDANT-APPELLEE.
    Submitted May 15, 1936
    Decided June 4, 1936.
    Before Justices Bodine and Heher.
    For the plaintiff-appellant, Hannoch & Dosser.
    For the defendant-appellee, G. Tapley Taylor and D. Stanley Ford.

   Per Curiam.

The plaintiff sued for rent. The lease covered a one-family dwelling at 282 Briarcliff road, Teaneck, and one-half of the garage on the adjoining premises known as 276 Briarcliff road. During the defendant’s term, the landlord leased the premises situate at 276 Briarcliff road, together with the entire garage to one Lent. Thereafter the defendant was prevented from using that part of the garage which had been previously leased to him. Defendant ceased paying rent and on his set-off was awarded the amount of money which he had expended for the rent of a garage. The fact question for the District Court was whether there had been an eviction. Certainly, the leasing of part of the demised premises to a stranger constitutes an eviction. Morris v. Kettle, 57 N. J. L. 218; 30 Atl. Rep. 879; Dolton v. Sickel, 66 N. J. L. 492; 49 Atl. Rep. 679. The penalty for such act by the landlord is that he cannot collect rent from his tenant.

In the case of Gribbie v. Toms, 70 N. J. L. 522; 57 Atl. Rep. 144, it appeared as a fact that there was no eviction by act of the landlord; hence the rents were apportioned. But it clearly appears from the state of the case before us that the eviction occurred by the act of the landlord in leasing a portion of the demised premises to another during defendant’s term. Hence, the plaintiff was not entitled to rent. The defendant was entitled to recovery on his set-off for any damage sustained. Since not obliged to pay rent no damage appears from the mere circumstance that a garage leased by him cost much less than the rent he would have been obliged to pay but for the eviction.

The judgment is affirmed, except as to the damages awarded on the set-off. which is reversed.


author: John C. Wegner, Deputy Oommissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH STRETKOWICZ, PETITIONER, v. WILLIAM SPENCER & SON CORPORATION, RESPONDENT.
    Decided May 19, 1936.
    For the petitioner, Hobermcm S Hoberman.

    For the respondent, Charles Landmesser.

   SjS i]i iji # JÍJ í¡í

Respondent filed an answer setting forth that the New Jersey Compensation Court was without jurisdiction in this matter; and that the petitioner had already been compensated, pursuant to an award by the United States Employes Compensation Commission.

The petitioner was called to the stand in his own behalf and testified that he was employed by the respondent and that his duties consisted of loading and unloading boats, lighters and barges, and that while engaged in wheeling a hand truck onto a boat, which was on the Hudson river along the Jersey City shore, on the day in question, and still on the gangplank leading to said boat, his speed was increased because of the downgrade of the gangplank, and he was caused to lose control of said hand truck, with the result that same fell from his hands forcing him into a stanchion on said boat, and that the hand truck fell against his left leg causing his injury. He further testified that he was treated for his injuries by Dr. Joseph F. Londrigan and also at the Medical Center Hospital of Jersey City. The only other evidence introduced on behalf of the petitioner was a clinical medical chart of the Medical Center Hospital, which showed that the petitioner had appeared there for treatment on several occasions.

The respondent introduced the testimony of John A. Willard, referee of the United States Employes Compensation Commission, who testified that the said United States Employes Compensation Commission had previously taken jurisdiction of this claim and had duly made an award in favor of the petitioner, which had been paid in full by the respondent. The testimony of John Mizourczylc and John Hrno, co-employes with the petitioner, was also introduced, and they testified that while the petitioner was on the boat and engaged in wheeling the hand truck, another employe caused the petitioner to alter his course, as a result of which he lost control of his vehicle and was forced into a stanchion on the boat. Dr. Joseph E. Londrigan also testified in behalf of the respondent to the effect that he treated the petitioner following the accident, for a bruised left leg, and that the extent of his disability was only of a temporary nature and did not extend beyond a period of two or three weeks.

It was stipulated by counsel that the Hudson river, upon which the boat was docked, was a navigable waterway.

Eollowing this a motion was made in behalf of the respondent, urging a dismissal of the petition for the reason that the court was without jurisdiction in that the boat at the time of the aforesaid accident was docked in navigable water on.the Hudson' river along the shore of Jersey City, New Jersey, and that this claim was duly disposed of by the United States Employes Compensation Commission, upon the theory that the petitioner was engaged in a maritime occupation.

It was urged on petitioner’s behalf, that opinion Ho. 5 of the United States employes compensation commission would govern in this case.

Opinion Ho. 5 states:

“Employes engaged in maritime employment on a vessel are covered by the Longshoremen’s and Harbor Workers’ Compensation act when leaving the vessel until they are entirely free from a gangplank extending from the vessel to the pier. Employes going aboard the vessel by means of a gangplank to engage in maritime employment are covered by the act only after they reach the vessel.”

Opinion No. 5 was based in part upon the decision in the case of the Atna, 297 Fed. Rep. 673, a decision of the United States District Court for the Western District of Washington, Southern Division, rendered March 31st, 1924. In that case the court said, in part, “if he [the injured stevedore] is passing from the shore to the ship, the admiralty has not jurisdiction until he has reached the ship, and is entirely separated from the shore.”

In a subsequent case, namely, the Brand, decided October 8th, 1928, 29 Fed. Rep. (2d) 792, a similar question was considered by the United States District Court for the District of Oregon, involving an injury sustained by a longshoreman going across a gangplank to a vessel. In that case the court made the following statement, citing the Atna, supra:

“The ‘gangplank’ is a connecting link between the dock and ship. It should be considered as an extension to the land in passage from the dock to the ship, and in passage from the ship to the dock as an extension to the ship. The status of the libelant as a dock workman had not changed at the time of his injury.”

Attention, however, is invited to the case of Nogueira v. New York, New Haven and Hartford Railroad Co., 281 U. S. 128. In that case the employe was engaged in loading freight upon freight cars located upon a float. Pie was using a hand truck in carrying a bale of paper, and as the float was several feet lower than the dock from whence he was moving the freight, it was necessary to move the bale over a plank which ran from the dock to the middle of the float at a steep incline. While moving down the plank, the truck used for this purpose got out of control and skidded down the plank, throwing the employe on the floor of the float, resulting in his injury. The United States Supreme Court in that case held that the Longshoremen’s act applied. The importance of this case lies in the fact that at the time of injury the employe was approaching the float or vessel from the dock by means of a plank, and had not reached the float or vessel when the accident occurred.

Cases of Minnie v. Port Huron Terminal Co. 55 S. C. R. 884, and Kenward v. The Admiral Peoples, 55 Id. 885. Both cases were decided on June 3d, 1935. In the Kenward case the petitioner was injured while leaving the vessel by way of the gangplank. The court in this case made the following statement:

“The basic fact in the instant case is that the gangplank was a part of the vessel. It was a part of the vessel's equipment which was placed in position to enable its passengers to reach the shore. It was no less a part of the vessel because in its extension to the dock it projected over the land. Thus, while libelant was on gangplank, he had not yet left the vessel. This was still true as he proceeded., to the shore end of the plank. If while on that part of the vessel he had been hit by a swinging crane and had been precipitated upon the dock, the admiralty would have had jurisdiction of his claim.”

Upon consideration of the decisions of the Supreme Court in the Kogueira and Kenward cases, cited above, the view expressed in opinion Ho. 5, to the effect that employes going aboard the vessel by means of a gangplank to engage in maritime employment, are covered by the act only after they reach the vessel, may no longer be tenable. It would appear from the latter case that a gangplank is considered as a part of the vessel or a part of the vessel's equipment extending to the dock even where it projected over the land. This conception of the gangplank would apparently require consideration of the injuries occurring thereon, in so far as employes otherwise coming within the purview of the Longshoremen’s act are concerned, as occurring upon the navigable waters of the United States.

Considering all the circumstances surrounding the case sub judice and in view of the later rulings of the Supreme Court, I am of the opinion that the bureau does not have jurisdiction.

I therefore find and order that the petitioner, at the time of the accident, as a result of which he was injured, was engaged in a maritime occupation, and that the state forum is without jurisdiction, and the petition herein filed be and it hereby is dismissed.

John C. Wegner, Deputy Oommissioner.