text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LOTTIE C. MacINTYRE, PETITIONER, v. PENNSYLVANIA RAILROAD COMPANY, RESPONDENT.
   This is a claim coming on for determination under the provisions of the New Jersey Workmen’s Compensation act, in which there is no dispute as to the employment or accident, but one in which must be determined whether the accident occurred in connection with interstate or intrastate commerce. At the trial of this case in Camden on November 21st, 1928, the following stipulation was made a part of the record:

“It is hereby stipulated and agreed between the parties hereto as follows:

“That James W. MacIntyre, the decedent, was killed while acting as a conductor in the employ of the Pennsylvania Railroad Company, on the nineteenth day of March, nine-, teen hundred and twenty-eight. That the accident occurred while the said James W. MacIntyre was coupling an aii hose between the tool car and the riding car of the wrecking train, and that the wrecking train was being moved in the Camden yard of the Pennsylvania Railroad Company, bv shifting the engine from one end of the train to the other preparatory to moving the said wrecking train from the Camden yard, with its destination the Pavonia yard, all of which movement was entirely within the State of New Jersey.

Waddingtow & Mathews, Attorneys of Petitioner. Bourgeois & Coulomb, Attorneys of Respondent."

A study of railroad litigations shows plainly that it is often difficult to determine whether a situation is interstate in character or intrastate. The courts are continually reversing one another on this question. An exhaustive study of the decisions seems to indicate that no definite rule can be formulated. Railroading is different from most occupations in that in, and of, itself it is not an end, but merely a means to an end. To illustrate, one does not ride on a merry-go-round for any other purpose. The ride itself is the accomplished end. Ordinarily, this is not so with regard to a street car. A ride on a street car is a means to an end, to get somewhere. The operators of a railroad do not move engines and shunt cars about merely for the fun of it, or without some purpose behind the movements. This underlying purpose must of necessity determine the character of the operation. I can conceive of no other way of determining it. An engineer is directed to couple onto a car which has just been left on the main line by a passing freight train, and move it on to the siding of the purchaser of the goods contained in the car. Whether or not that is an interstate or an intrastate movement can be determined only by ascertaining whether the point of shipment was within or without the state. Having this information, it can then be decided whether this particular operation was for the purpose of completing an interstate movement. Without a knowledge of the purpose of an operation, the question cannot be answered.

In the case at bar, it is to be noted that the stipulation introduced into the record gives no indication of the purpose making necessary the preparation of the wrecking train for use, and without a knowledge of this underlying purpose I am unable to see how I can find, as a fact, that this particular activity was intrastate in its character. Under the rule, it is incumbent upon the petitioner to show affirmative] y that the accident occurred in connection with intrastate commerce before an award can be given. The petitioner’s counsel relied on the stipulation quoted above to do this. I am unable to see that it does so, and for this reason it appears that the petition should be dismissed. However, the respondent has presented testimony which may help to clarify the situation.

Briefly stated, this testimony shows that following this unfortunate accident, the wrecking train proceeded to a siding connecting the East Pavonia yard of the respondent company with the Pavonia Ice and Coal Company, where it replaced on the tracks a derailed ear, which was preventing the delivery of a consignment of coal from Pennsylvania, and also the shipment of empty coal cars from the yard of the coal company back to Pennsylvania. There was no direct testimony that the wrecking crew had received orders, tying tip its operations at the exact moment of the accident with the derailed car at Pavonia, but it appears that the wrecking train went directly to Pavonia, and the assumption that the wrecking crew was acting under orders to remove this obstruction to the completion of an interstate movement is reasonable.

According to my understanding of this case, the purpose for which the wrecking train was being prepared for service was the furtherance of interstate commerce, and this underlying purpose determines the character of the employment at the moment of the accident.

* * * * * * *

W. E. Stubbs, Deputy Commissioner.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROY H. BRANT, RESPONDENT, v. SAMUEL S. ASARNOW, APPELLANT.
    Submitted May 17, 1929
    Decided September 19, 1929.
    Before Justices Parker, Black and Bodine.
    For the appellant, William P. Braun.

    For the respondent, Harry Kalisch.

   Per Curiam.

The plaintiff sustained personal injury by reason of the explosion of a range in premises rented by him from the defendant. There was a verdict and judgment for the plaintiff and defendant appeals.

The situation, as the jury was entitled to find it, was that the defendant rented rooms over a store to the plaintiff at a rental of $25 per month; and in the rooms there was a coal range, but that this was not connected up at the time of rental, and that the range was rented to the plaintiff separately from the rooms for $3 a month. This was disputed, as a matter of fact, by the landlord, but there was evidence which entitled the jury so to find. This range was constructed, as usual in such cases, with a water-back to be connected with a boiler, but there was no boiler. The testimony of the plaintiff’s wife was that at the time of renting the range she asked the defendant if there was “any water in the box,” and he said, “well, there may be a little water in, bnt you will come to no harm;” that her sister asked defendant whether it was a good burner and a good baker, and he said, “the stove is in perfect condition to use.” The evidence further tends to indicate that the defendant agreed to pay, and did pay, the co.st of connecting the range with the chimney, amounting to $2.50, the work being done by the plaintiff. There was a gas range for small cooking, but one morning when it was cold the plaintiff, who usually got his own breakfast, started a fire in the coal range to warm up the room. Presently the range exploded and injured the plaintiff seriously. There was further testimony tending to indicate that the defendant admitted afterwards that he was at fault.

The first point made for reversal is that the court committed error in refusing to nonsuit when the plaintiff rested. The motion to nonsuit was rested on twenty separate grounds which are reprinted and ostensibly relied on in the brief but are not specifically argued. The gravamen of the argument is that, as between landlord and tenant, there is no implied warranty of fitness. This well-recognized rule is sought to be applied to the range as a part of the rented premises. There are two answers; the first is that, on the theory of the case as submitted to the jury, it was not a case of landlord and tenant; and the second is that there was evidence of an express warranty by the landlord. On the plaintiff’s theory of the case, the rental of the stove was a bailment for hire, and we think the established rule in such eases is that the bailor is required to use due care to have the article reasonably fit for the purpose for which it is bailed. A common instance in the old cases is that of hiring out a vicious horse at livery. We conclude that there is no merit in the first point.

The second point is that, upon the same grounds as urged in the motion for nonsuit, there should have been a direction of a verdict for the defendant. As usual in such cases, the evidence for the defendant contradicted but did not explain away that of the plaintiff and, hence, there was no error in refusing to direct a verdict.

The third point is that the court erred in permitting the following question to be asked over objection on cross-examination of the defendant: “Now, Mr. Asarnow, are jrou testifying in your own interest or are you insured against an adverse verdict in this case?” This is attacked as illegal and incompetent; but it seems to be directly in line with the decision in Day v. Donohue, 62 N. J. L. 380, and Kalker v. Hedden, 72 Id. 242. In fact, the question is framed in the precise language considered in Day v. Donohue. Eor the reasons given in the cited case, it was not error to permit the question.

The fourth point is alleged error in charging as follows:

“Now, a bailment is a delivery of personal property to another, for some purpose upon a contract express or implied that such purpose will be carried out. In such a case there is what we call a bailment. If mutually they got the benefit and it was for the benefit of both bailee and bailor, the man turning the article over for use was the bailor, for so much a month or a week, and the other man was the bailee. One had the benefit of the use of it, and the other man had the benefit, by reason of having been paid for the use of it, and it was his duty to turn it over in proper condition to be used by the other party.”

The argument is that this language imposes an absolute duty upon the defendant, irrespective of questions of care or want of care. We deem it unnecessary to discuss the legal propriety of the language because it is inseparably connected with what immediately follows and qualifies, and which reads thus: “The question then to be resolved by you is, if there was a leasing of the premises and a bailment of the article, did he discharge that duty or was he negligent in the discharge of it?” The court then immediately went on to define negligence as applied to the case. Taking this portion of the charge altogether, we are clear that no harmful error was committed.

The fifth and last point is that the court refused to charge the defendant’s third request, and which reads as follows:

“You must also take into consideration the fact that the testimony in the plaintiff’s case admits that the defendant informed them that there was water in the steam box and that therefore even if the water in the steam box were a defect, the defendant disclosed that defect and made it known to the party renting the apartment. In that event, there should be a verdict for the defendant.”

We think this request was properly refused because it did not properly state all the material facts and because it reqxxires absolutely a verdict for the defendant. The request does state that the defendant informed them that there was water in the steam box, but omits to include the further statement that the defendant assured them there was not enough water to do any damage, as appears in the testimony quoted above. Moreover, it does not correctly quote the testimony, even as to the portion that it covers, because that testimony is that defendant said there might be a little water in. Consequently, the request was not justified by the evidence.

We find no injurious error in the case, and the judgment will, therefore, be affirmed.


author: Losche, J.

text:
    Fifth District Court of Bergen County.
    PETER KARANDONTES, PLAINTIFF, v. “FRANK” C. FERRELL (THE FIRST NAME OF THE DEFENDANT BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF) AND JENNIE FERRELL, DEFENDANTS.
    For the plaintiff, Herbert Smith.

    For the defendant, Jennie Ferrell, fro «ve.
   Losche, J.

This is an action brought Ln two counts: first, to recover on a book account and, second, for the value of labor and materials furnished by the plaintiff at defendant’s request. The plaintiff did not sustain the first count because the shop book produced did not show certain credits for payments admittedly made.

Plaintiff is, however, entitled to judgment against the defendant Jennie Ferrell in the second count for the sum demanded.

As to the other defendant, who did not appear either in person or by attorney, plaintiff may not recover in either count. Section 42 of an act concerning District Courts, provides as follows:

“When the plaintiff is ignorant of the name or part of the name of a defendant, he may designate such defendant in the summons and in other process or proceedings in the action by a fictitious name, or by as much of the name as is known, adding a description identifying or tending to identify such defendant, and the person intended shall be thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, including service of the summons and such summons shall be served in the wny and manner as other writs of summons in said court, and when the name or the remainder of the name of the person becomes known an order shall be made by the court upon notice and terms as the court shall prescribe that the proceedings already taken be amended by the insertion of the true name in place of the fictitious name or part of a name and that all subsequent proceedings be taken under the true name. (Italics mine.)

The general practice in the district courts, and, I dare say, in the upper courts, too, has been to designate a defendant whose first name was unknown as he is designated in this cause. However, where the statute is clear, as it is in this instance, no length of custom is sufficient to destroy its mandate if that custom be in derogation of its direction. Therefore, notwithstanding such practice, the real consideration should be: Is such designation, without “adding a description identifying or tending to identify such defendant,” sufficient .to authorize the entry of a judgment against such person so designated ?

There can be no question that the words of the statute require more than a mere statement that the first name of the defendant is fictitious and unknown to the plaintiff. The specific words of the statute cannot be held for naught. The legislature intended that the “description identifying or tending to identify such defendant” should serve the quite obvious purpose of identifying the defendant so that any reasonably intelligent person might know who was intended. No one would seriously contend that the words used in this cause identify or tend to identify the defendant. The same words might with like effect be used concerning anyone.

The wisdom of this provision of the statute becomes more apparent in the case of a common name such as Brown or Jones. A judgment against Brown or Jones, described as in this cause would, if valid, render every Brown or Jones in the county of Bergen subject to such judgment. Such a result was not intended and will not be countenanced.

Of course, if the defendant appeared generally, the insufficiency of the description would be immaterial because the court is empowered by section 42 to amend the proceedings by adding or supplying the true name. It should be noted in passing that the “description identifying or tending to identify such defendant” must be included in the summons.

I have dwelt somewhat at length on this obvious requirement of the statute because lawyers generally seem to have ignored it. See Simon v. Underwood, 61 N. Y. Mis. Rep. 369, for an exhaustive discussion under a similar statute.


author: Habby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN BABIAK, PETITIONER, v. SECURITY STORAGE WAREHOUSE, RESPONDENT.
    For the petitioner, Max Kunvmel.

   Petitioner sustained an accident arising out of and in the course of his employment with respondent oh July 19th, 1927, at which time his wages per week amounted to $34. Petitioner was employed by respondent as a laborer, and on the said date, while unloading a truck, an iron wheel fell off the truck, striking him on the legs. Petitioner says that he was thrown to the ground by this and struck his head and was rendered unconscious. It is undisputed and petitioner admits that his temporary disability arising out of this accident did not amount to more than two weeks, and respondent has already paid him compensation for two weeks’ temporary disability which covers in full any and all temporary disability which this petitioner sustained arising in any way out of this accident. Petitioner alleges he received injuries to his right foot, left leg, chest and head arising out of the accident. He admits that he has no permanent injury to his body, arms and legs arising directly or indirectly by way of aggravation or otherwise from this accident. He has a partial atrophy of the right optic nerve which has caused the vision in his right eye to be reduced at this time to about one-third below normal. This atrophy may become greater as time goes on and thereby canse an even greater and far more serious loss of vision to his said right eye. Petitioner claims his eye condition is a result of the above-mentioned accident. He alleges he has headaches all the time and claims that these are a result of said accident. He is of a neurotic type and feels that he was badly injured in said accident. This neurotic condition may grow worse as time goes on.

Eespondent denies that petitioner has any permanent disability arising directly or indirectly from the above-mentioned accident and specifically denies that the right optic nerve, atrophy, right eye loss of vision, headaches, any head condition whatsoever, and any neurotic condition are directly or indirectly the result of said accident. But respondent, taking all injuries, diseases and any and all other conditions of plaintiff into consideration, including any and all ultimate results of any and all the various diseases, injuries and conditions of petitioner and basing this settlement not only on petitioner’s present condition but on any and all developments in his condition which may be by him or by doctors, alleged to be the results of his said accident, either directly or by way of aggravation, is willing to settle the entire matter for the temporary disability paid, above mentioned, and for .five per cent, of total permanent disability amounting to twenty-five weeks at $17 a week. Eespondent also agrees to pay as its share of any counsel fee awarded the attorney for the petitioner the sum of $75.

Erom the testimony and the facts stipulated, the settlement is fair to both sides and is approved by this court on the distinct understanding of the petitioner, his attorney, the respondent and its attorneys, that a fundamental element of the settlement is the fact that any future and further developments resulting in an increase of disability to the petitioner or his death are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

Habby J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD WOLMER, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    For the petitioner, Michael Breithopf.

    For the respondent, Henry J. Sorenson.

   * H; $ sfc * #

That on the 14th day of February, 1925, the petitioner was employed by the respondent as an iron worker, doing work in a Kearny power station, located in Kearny, New Jersey. While engaged in his regular work, the petitioner was struck upon his head by a snap which blew off an air gun. This snap struck the petitioner over the right eye. He was immediately removed to the Jersey City Hospital where he remained until about the 11th day of March, 1925. At the time of this hearing, the respondent had compensated the petitioner for whatever temporary disability he suffered and has further compensated the petitioner for the total loss of vision of the right eye. Under the petition as filed, the only claim for compensation is made upon the basis of the loss of vision of the right eye and for the loss of five teeth. At the time of hearing, the petition was amended so as to include also a partial loss of vision of the left eye, so that the issue as framed by the pleadings and the facts in this case involves only a question whether the petitioner suffered a loss of vision of the left eye and the loss of five teeth as a result of his alleged accident.

Dr. Morris Klein, testified that he examined and treated the petitioner, and for the purpose of his treatment, he secured a history of the alleged accident. As a result of his examination, he found a total loss of sight of the right eye and a partial loss of vision of the left eye. lie found that there was a stigma tism present in the left eye and also partial optic nerve atrophy. He further found that the field of vision of the left eye was narrowed on the nasal side. This condition did not improve with treatment. There was present in the right eye a glaucoma, but not in the left eye. The refraction in the left eye was irregular and he also found a hyperopia present which is congenital in the greatest number of cases. He testified that as a result of the blow the petitioner is suffering from a loss of two-thirds of the vision of his left eye. On behalf of the respondent, Dr. "Wyatt, a roentologist, practicing in the city of Newark, testified that he had taken X-rays of the head of Edward Wolmer. These X-rays disclosed that the right and left frontal sinuses are large and clear. The sphenoidal sinus is clear. The ethmoid cells of the right and left sides are clean. There is a haziness in the right anterim but the left anterim is clear. The nasal septum is straight. His final radiographic diagnosis was right maxillary sinusitis. Dr. Elbert S. Sherman, a specialist on the eye, testified that he had made several examinations of the petitioner, which examinations disclosed that the vision of the right eye was reduced to industrial blindness, showing a loss of about one hundred per cent. In reference to the left eye, his examination disclosed that there was an' impaired vision which was due to a fairly large amount of hyperopia with a stigmatism, which condition, when it is corrected with a suitable glass, the vision is within sixteen per cent, of normal. Dr. Sherman further testified that there is no connection between the alleged accident and the condition of the left eye. Dr. Alexander Smith, also a specialist on the eye, testified that he had examined Edward Wolmer on September 12th, 1928. His examination revealed that the condition of the left eye evidenced high hyperopia, coupled with amblyopia, ex-anopsia, or what is commonly known as “lazy eye.” He further testified that there was no connection whatever between the alleged accident and the condition which was present in the left eye. Dr. Holmes, also a specialist, testified to the same findings as made by Dr. Sherman and Dr. Smith, and came to the same conclusion that the disability to the left eye was in nowise connected with the alleged accident.

The evidence as presented in the trial of this matter disclosed a sharp factual question in the proof of which the petitioner must sustain the burden. In this respect, I feel that he has failed.

Charles E. Corbin,, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labo, Workmen’s Compensation Bureau.
    EDWARD ZANDER, PETITIONER, v. BERGEN MARKET COMPANY, RESPONDENT.
    Eor the petitioner, Joseph SuravsTcy.

    Eor the respondent, Frank G. Turner.

   W * $ - * * * *

From the evidence it appeared that on March 7th, 1938, the petitioner was employed by the respondent at its meat market at 501 Jackson avenue, Jersey City, New Jersey. From the evidence it appeared that on March 7th, 1938, the petitioner was carrying a hind-quarter of beef to the ice-box and opened the ice-box door for the purpose of hanging the beef on a hook provided for that purpose. The petitioner testifies that while hanging the hind-quarter of beef, his foot slid along the floor, sideways about two feet, but he did not fall and did not go to his knees and the beef did not fall, but hung on the hook. The petitioner demonstrated the alleged happening before the court and his demonstration failed to establish an accident. The motion made by the petitioner’s foot at the time of hanging the beef, is such a motion as could ordinarily be made and probably would be made by one hanging up a weight such as this is described to be. The petitioner says that he felt a sharp sting in his spine, or the small part of his back. He continued working during the entire afternoon of that day and lost no work from that time until August 25th, 1928. On the last mentioned date he left his employment. The petitioner testifies that about two weeks after the above happening, he saw the secretary of the respondent company and informed him that he had strained his back. He did not inform the secretary that he had suffered an accident and did not describe any happening of an accidental nature to the secretary. The petitioner testifies that while although in previous years he had been in the habit of lifting quarters of beef and handling heavy weights, during the last three years he had not handled such heavy weights, and had made it a point to have his helper lift the quarters of beef and handle the heavy weights. While he says that the reason for this was not because of his suffering from disease in his back, nevertheless, the fact of itself corroborates the testimony of the respondent to the effect that the petitioner has long been suffering from a condition of the back which is caused by disease. The respondent denies that there was an accident and has paid no compensation to the petitioner and alleges that the only condition from which the petitioner suffers is a condition of disease. This condition of disease was not caused and was not aggravated by the alleged happening described by the petitioner. The petitioner, suffers from a scoliosis, which is in no way related to the alleged happening of March 7th, 1928, bnt which is due to systemic poisoning which the petitioner suffers from at least two sources as shown bjr the medical testimony. His tonsils are diseased and his teeth and gums are diseased, so that the poison from these two sources at least enters the blood stream and thereby caused the condition from which the petitioner suffered on August 25th, 1928. This condition of toxic poisoning, under treatment, has now so far improved that the petitioner is working at his trade two days per week and receiving wages of $15 weekly therefor.

* $ % * * *

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH E. CAREY, PETITIONER, v. PUBLIC SERVICE GAS AND ELECTRIC COMPANY, RESPONDENT.
    Eor the petitioner, William C. French and Samuel T. French.

    Eor the respondent, Henry J. Sorenson.

   :ü * * * * # *

Attorneys having, prior to final hearing, stipulated in writing, signed by said attorneys, the date of which being March 29th, 1928, and which said stipulation having been read into the record and made a part thereof covers the following state of the case:

It is hereby agreed and stipulated between the various parties, William C. French, attorney for the petitioner, and James C. Boyd, attorney for the respondent, that Morton Carey on May 21st, 1926, was employed by the respondent, Public Service Electric and Gas Company, as a pipe fitter and on that date he was entering the premises of 139 Merion avenue, lladdonfield, for the purpose of delivering meter and materials.

As he was entering the premises, a small barrel fell or was thrown from the roof of a sunporeh, which keg came in contact with the decedent’s head. At the time of the impact, the decedent was carrying a bucket of fittings which he dropped at the time of the impact. He then picked up the fittings, with the assistance of the man who had either thrown or let ilie barrel fall and then proceeded into the house to go about his work. He continued working throughout the entire day and the following dajp being a Saturday, he continued working until twelve o’clock. The decedent continued to work for the respondent up to and including May 29th, 1926.”

It was also stipulated that decedent at the time he was injured was making the sum of $30 per week.

The stipulations and the petition and answer therefore disposed of all the material questions in the case with the exception of “the cause of the death of the decedent.”

Petitioner testified that her husband, the decedent, had been in perfect health for a period of twenty years prior to the injury he received on the head by being struck by the object, that during that twenty years he had not been off from work on account of illness, such as colds, more than a week, that he had never consulted a doctor during that twenty years, that the afternoon of May 21st, 1926, when he came home from work, he looked different from the way he had looked when he was home for his noonday meal; he was a changed man, had a stary look, his eyes were glassy and he complained of terrible pains to his head, that he ate no supper, couldn’t sleep, that petitioner applied hot cloths to a large lump, larger than a good-sized egg, on left side of head about two inches above left ear, that he got up the next morning and went to work, didn’t eat anything but a cup of coffee, worked the half day which was a Saturday, came home shortly after noon, and went to bed and stayed there until Monday when he again went to work still complaining. He walked the floor and would get up and lay down and said his head was paining him so he didn’t know what to do. He was the same on Monday, Tuesday, Wednesday and Thursday, when he went to Dr. Bowker’s. Petitioner kept the swelling on head covered with hot witch hazel all Saturday afternoon and night and all day Sunday and Monday morning until he left for work.

Decedent continued his work up until May 29th, 1926, when petitioner called in Dr. Bowker, who attended him until June 5th, 1926, decedent getting continually worse, when on June 5th, 1926, Dr. Bowker called in Dr. Thomas Kain in conference, and as a result of same decedent was removed to Cooper Hospital in the city of Camden, Camden county, New Jersey, where he gradually became worse, and, finally on June 14th, 1926, decedent died, the last two or three days decedent’s mind wandered and he became unmanageable, that the authorities at the hospital strapped him by the hands and feet, to his bed.

Petitioner further testified that decedent never had a conscious moment, after his injury, free from intense pain.

Leonard Carey, the twenty-year-old son of petitioner and decedent, corroborated the entire story of the petitioner.

Mrs. Ethel Durges, of 651 Washington street, Camden, a close friend of the family, testified that she saw decedent every day from the 2£d or 23d of May, 1926, until he died, also corroborated petitioner’s testimony.

Mrs. Mary Eisher, of 1406 Baird avenue, Camden, New Jersey, a sister of decedent, saw him every day from the day before he went to the hospital until the day he died, spending portions of days • and nights with him, also corroborates petitioner.

They all testify as to the change in his personal appearance, his pain and agony, his inability to sleep and the loss of appetite and each one of the petitioner’s witnesses testify to having seen the lump on decedent’s head, and each one testified as to its location.

Dr. Thomas Kain, a witness produced by respondent, testified to having seen the lump on decedent’s head at the time he examined him at his home in consultation with Dr. Bowker. None of this testimony was contradicted by the respondent.

Petitioner also produced Dr. Eichard S. Davis, of Philadelphia, who testified as an expert, upon the history of the decedent’s prior perfect health for the long period of twenty years and his record of continuous work during that period; decedent’s injury on the head and the resultant effect on him to the time of his death, and after having examined the entire hospital record also the slides under the microscope taken of splashes of decedent’s brain after the post mortem, that in his opinion, the head injury was the predisposing idiological factor in the man’s death and that epidemic encephalitis, lethargic type, did not cause death.

Eor the purpose of denying this opinion and setting up a defense of the fractured skull theory, the respondent called upon Dr. Earley, Dr. Kain and Dr. Mahaffey, who, without considering the previous history of the good health and working record of decedent, gave as their opinion that decedent came to his death from “epidemic encephalitis, lethargic type.”

All of the doctors called were experts, and Dr. Davis testified that “encephalitis, lethargica, is an acute inflammatory infection of the central nervous system.” And from the standpoint of modern medicine this affection must be regarded as a new disease, and that partly due to the newness of the disease and very largly to its pecularities, it is very hard to diagnose.

The testimony of Dr. Davis seems to accord with the other doctors called by the respondent, in that they all admitted on cross-examination that this disease, “epidemic encephalitis lethargica,” is very difficult to diagnose, in that its symptoms resembles so many other diseases. Dr. Mahaffey stated in his cross-examination that he had never seen the decedent during his lifetime and that all he knew was from the symptoms derived after death; that examinations before death are of much more evidential value than examinations after death. Dr. Farley stated that there was nearly always a discoloration of the spinal fluid in encephalitis, jret the history in this case showed two tappings of the spine, one on the 5th and pne on the 8th days of June, 1936, and in each instance 30 c.c. of spinal fluid was taken and on both occasions the fluid was clear, tending clearly to indicate that there was no involvement of the spine which is one of the principal parts that goes to make up the central nervous system.

Dr. Farley testified that in his post mortem he found calcification around the longitudinal sinus on the left side of skull, he also found calcification of chest cartilage and to his mind due to the same process, he afterward said that this calcification could be new bone substance or lime salts deposits, but in view of the fact that he mentions no other evidence of calcification ' (which might be either lime salts deposits or new bone substance) in any other part of the skull, and in view of the fact that this discovery of the calcification on the inside of the left side of the head either at the point or so near to the point where all of the petitioner’s witnesses and Dr. Kain testified the lump was on decedent’s head, I am constrained to believe that decedent died from the effects of the injury to the head.

I therefore find as a fact that decedent, Morton Carey, who was injured by accident on the 31st day of May, 1936, while in the employ of the respondent, Public Service Electric and Gas Company, and while performing work for the respondent in the course of his employment, and that as a consequence of such accident, arising out of and in the course of his employment, he suffered an injury to the head, and that same resulted in his death, in the Cooper Hospital in the city of Camden, New Jersey, on the 14th day of June, 1936.

* * *****

W. E. Stubbs, Deputy Commissioner.


author: Pee Cueiam.

text:
    ELIZABETH PARKER KELLEY, PLAINTIFF-RESPONDENT, v. CHARLES L. WALKER, DEFENDANT-APPELLANT.
    Decided September 27, 1929.
    Before Justices Tbenchaed, Kaijsch and Lloyd.
    For the appellant, William S. Darnell.

    For the respondent, McCarthy & McTague (Frank T. Mc-Carthyij of counsel).
   Pee Cueiam.

The plaintiff below brought her action against the defendant below to recover compensation for injuries sustained by her as the result of an outrageous assault and battery alleged to have been committed upon her. There was a verdict in her favor for $3,500, and judgment having been entered .thereon, the defendant appeals to this court.

The case is purely a factual one. The first three grounds oi appeal are contrary to the well-settled legal rule, that a ground of appeal must point out with precision the legal error relied on as a ground for reversal, and in that respect each of the grounds of appeal fails to set out the testimony which was offered by defendant, and alleged to have been illegally rejected hv the trial judge.

The three grounds of appeal relied upon are simply criticisms of the judicial action of the trial judge, and present no specific allegation of error committed by the trial judge, subject to judicial review.

The fourth ground of appeal is that the trial judge, under request number one, refused to charge the jury as follows: “The defendant, being in lawful possession of the premises, had a legal right to prevent the entry of plaintiff therein using sufficient force and no more than was necessary in so doing. It is for you to determine whether the force used was excessive.”

There is nothing in the record which shows what that request was which was presented to the judge, except the statement in the charge to this effect: “The first request asked for by defendant’s attorney I will deny.”

How is the reviewing court to know whether the request printed under the first ground of appeal is the request which the court was asked to charge, and refused to do so ?

The request made is not printed in the record, and for the first time appears in the notice of appeal. We 'think, however, the request was properly refused. The request assumed that the defendant was in lawful possession of the premises, and had a legal right to prevent the entry of the plaintiff therein, &c.

Whether or not the defendant was in lawful possession of the premises at the time of the alleged assault was not, under the circumstances of the case, as developed by the testimony, a pure question of law, but it involved the consideration of facts which were for the jury’s decision. The trial judge, therefore, could not properly say, without encroaching' upon the prerogative of the jury, that the defendant was in lawful possession.

Request number two, which the trial judge also declined to charge, like request number one, appears for the first time in the grounds of appeal. There again the request refused to be charged by the trial judge assumes that the resistance by the defendant to prevent the entry of the plaintiff was not an assault, or assault and battery, &c. This was the'very question of fact which was in dispute, and was for the jury to determine under the evidence of the case, and not the court. What has been said regarding requests numbers one and two applies with equal force to request number three.

The other grounds of appeal are not covered by any exceptions, and therefore are not arguable.

Judgment is affirmed, with costs.


text:
    MORRIS BUNEVICH AND ABE GOLUB, PLAINTIFFS-APPELLEES, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Decided September 27, 1929.
    Before Justices Trexciiabd, Katjscti ancl Lloyd.
    Eor the appellant, Henry H. Fryling.

    For the appellees, Irving S. Werksman.

   Per Curiam.

The only ground of appeal relied on by appellant’s counsel for a reversal of the judgment brought here for review is, that the trial judge erred in finding that the driver of appellant’s bus at the time the appellees suffered the damage to their property, as complained of in their state of demand, was in the employ of the appellant company, in the discharge of the duties of his employment. Whether the appellant’s driver, at the time of the accident, was in the discharge of the duties of his employment, was a mixed question of law and fact.

The undisputed facts in the case are, that the appellant company was the owner of a bus for the carrying of passengers for hire. The route was the Hackensack line, leaving Burgess Place, Main avenue to Passaic street into Garfield, into Lodi, Róchele Park to Hackensack and return.

The amount of the damages claimed by the appellees is undisputed. It is conceded that the appellees were the owners of the premises at the corner of Hamilton avenue and Ross Place, in the city of Passaic, and that the building was damaged by reason of the bus running into it. The accident happened at about eleven-forty o’clock at night. The driver of the bus was drunk, and that fact was suspected by the appellant as early as eight-thirty o’clock in the evening, at which time the appellant company received a telephone call from Davis, the' driver of the bus, that the bus was at Passaic and River road, Garfield, with a flat tire, and thereupon the station master notified the supervisor, who sent a mechanic with a tire to fix up the bus. Later in the evening, about eleven twenty-five o’clock, the supervisor received a telephone call from Donohue’s Cafe, at Garfield, and had a talk with Davis, who told the witness he was O. K., and that he, the supervisor, instructed Davis what he should do and to turn back and get in his time to fill the gap on the road, and during that conversation the supervisor discovered there was something wrong with Davis, and thought Davis had been drinking, and thereupon gave orders to him to stay there until he, the supervisor, got there, and the supervisor went to Donohue’s Cafe, and when he reached the cafe discovered no one there. He then started out to hunt Davis up, and followed him through various streets, on the regular route, and that Davis left the route after he passed the Garfield bridge in Passaic.

We think from the facts as detailed that there was a proper basis laid for the trial judge to find that Davis was in the employ of the appellant company at the time of the happening of the accident. No one, apparenty, was sent to take the place of Davis as driver of the bus, though the supervisor was put upon notice that there was something wrong with the driver, and notwithstanding acquiesced in the driver having control of the bus.

We find no substance in the claim that at the time of the accident the driver was not in the employ of the appellant company, as its driver. He certainly was not operating the bus for his own pleasure and benefit, and the mere fact that ho turned into a street with the bus, whether by mistake or otherwise, which street was not directly on the route mapped out by the appellant, is of no material consequence.

We cannot countenance a theory which would absolve a common carrier of passengers from responsibility to the general public, either as passengers or pedestrians, for the tortious act of its servant upon such tenuous ground, as is advanced bjr appellant.

Judgment is affirmed, with costs.


text:
    LAWRENCE McILVANE, PLAINTIFF, v. T. J. M. CONTRACTING COMPANY, PAUL PELO AND TESSIE PELO, DEFENDANTS.
    Decided September 27, 1929.
    Before Justices Tren chard, Kaliscu and Lloyd.
    For the rule, T. J. M. Contracting Company, Freeman Woodbridge (Edward TF. Hicks, of counsel).

      Contra, Paul Pelo and Tessie Pelo, James A. Messina.

   Pee Cueiam.

The facts, as briefly stated as can be, are as follows: On March 6th, 1923, Lawrence Mcllvane, in an action in tort, brought against T. J. M. Contracting Company and Paul Pelo, for injuries sustained by the former, through negligence of the contracting company, by its servant, Paul Pelo, obtained a judgment against them, which judgment, with costs, amounted to $559.35.

On March 21st, 1923, the Globe Indemnity Company, in which company the contracting company had an insurance policy covering accidents, paid the full amount of the judgment against the contracting company and Pelo, solely for the benefit of the contracting company. Testimonjr, taken under the rule to show cause allowed in this case, showed that at the time the Globe Indemnity Company gave its check for the amount of the judgment to Mcllvane, the latter made an assignment of the judgment to the contracting company. The check is dated March 21st, 1923, and the assignment bears date March 27th, 1923.

The assignment contains the provision that the holder of the judgment assigns “the said judgment and all sums of money that may be had and obtained by means thereof, or any proceedings to be had thereon, to the end that, pursuant to the statute in such case made and provided, the said T. J. - M. Contracting Company may have and hold the said judgment as above, against the said Paul Pelo, defendant in said judgment, jointly liable thereon with the said T. J. M. Contracting Company for such amount as the said T. J. M. Contracting Company may he lawfully entitled to recover, have and receive from said Paul Pelo, as joint defendant with it in said judgment; and to the end that such pajnnent by the T. J. M. Contracting Company shall not operate as a release or discharge, as on said judgment as to the said Paul Pelo.”

The testimony further discloses that the assignment of Mcllvane to the contracting company was recorded April 10th, 1923. On December 15th, 1926, the contracting companjr in its turn assigned the judgment which had been ob-tamed against it and Paul Pelo, to Tessie Pelo. The latter, on April 5th, 1927, caused an execution to be issued out of this court directed to the sheriff of Middlesex county to make a levy under said judgment on the goods and chattels of the T. J. M. Contracting Company, and with this direction the sheriff complied.

So far as the contracting company is concerned, the judgment against it was fully paid and satisfied. It clearly appears from the various assignments that the intention of the parties was to keep the judgment alive solely as to Paul Pelo, hut whether it did so or not, or extinguished the judgment against both, is of no concern here. The judgment against the contracting company having been fully paid and satisfied there was no legal basis for the issuance of an execution against the property of the contracting companj’, and, therefore, the execution will he vacated and set aside.

Eule made absolute.


author: Pee Curiam.

text:
    PHILIP HANDSCHUCH, RELATOR, v. WILLIAM B. MARTIN, CLERK OF THE COUNTY OF UNION, AND THEODORE W. BROKAW, CLERK OF THE CITY OF ELIZABETH, RESPONDENTS.
    Argued September 19, 1929
    Decided October 1, 1929.

      Before Justices Tbbnciiaed, Lloyd and Case.
    Eor the relator, Sidney 17. Eldridge.

    Eor the respondent, Theodore 17. Broleaw and Edward A. McGrath.

    Eor the respondent, William B. Marlin and Francis J. Blalz.

   Pee Curiam.

The following matters of fact appear: At the general election for the jrear 1926, William J. Mottley Avas elected a member of the board of assessment and revision of taxes (commonly knoAvn as assessor) in the city of Elizabeth, for the eighth ward thereof, for a term beginning July 1st, 1927, and ending June 30th, 1929. He took office. He Avas again elected at the general election of 1928 for a term from July 1st, 1929, ending June 30th, 1931. He took the oath of office on November 22d, 1928. He died November 2oth, 1928.

On December 5th, 1928, by resolution of city council, Margaret Mottley Avas elected “for the unexpired term of William J. Mottley, deceased, to June 30th, 1929, and for a period from July 1st, 1929, until a successor has been duly electedand she took the oath of office.

On July 5th, 1929, Margaret Mottley resigned and her resignation Avas accepted, and on July 8th, 1929, Sarah Mottley Avas elected by city council “for a period from July 5th, 1929, until a successor has been duly elected.”

The question seems to be should a successor be elected at the next general election.

We think the term vacated was the unexpired term of William J. Mottley, described as “from July 1st, 1929, until a successor has been duly elected,” following practically the language of the act of 1901. Pamph. L. 1901, p. 42, § 5, provides that: “All vacancies in offices in anjr city in this state arising from or created by any other cause than expiration of term of office, shall be filled for the unexpired term only; vacancies in elective offices shall hereafter be filled at the next general or state election, and not otherwise ”

Section 7 provides that “every officer now or hereafter holding any office covered by the provisions of this act, except justices of the peace, shall continue to hold such office, and to continue to exercise the duties thereof * * * until his successor has been chosen and qualified

Section 8 repeals all inconsistent acts, special or general.

We believe that this act is still in effect, and that seems to be conceded. That being so, we think it was the duty of the city clerk to certify to the county clerk the vacancy to be filled at the next general election. That, it appears, he did not do, although requested, and refused so to do as late as August 29th, 1929.

We therefore think and order that a peremptory writ issue commanding and enjoining Theodore W. Brokaw, clerk of the city of Elizabeth, to make and certify under his hand and seal of office and forward to the clerk of the county of Union a statement designating the public office of member of the board of assessment and revision of taxes in the city of Elizabeth, for the eighth ward thereof, for the unexpired term of William J. Mottley, deceased, to be filled at the general election in the year 1929.

We do not think that we should require anything of the county clerk by way of mandamus as matters now stand. He has never been asked to do anything in this connection which legally he was compelled to do, and so, of course, lias not declined to do anything which legally he was compelled to do. His duty begins only upon the vacancy being certified to him, and that has not been done as yet.

We assume that, in respect to such duties as the law casts upon him after receiving the certificate, he will perform such duties.

The peremptory writ of mandamus will issue accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    STEPHEN SIPOS, PETITIONER, v. C. V. KEIMS SONS, INCORPORATED, RESPONDENT.
   * * * *

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with respondent on January 20th, 1928, at which time his wages were $50 a week. Petitioner states that while moving a barrel his foot slipped . on the floor and in an effort to save himself from falling he put out his right hand, which struck the floor. He claims that as a result thereof he sustained in. excess of fifteen per cent, of total permanent disability of his right hand. He admits that he did not stop work because of this accident and continued working for six weeks thereafter, at which time his employment was terminated with respondent for reasons which have no bearing whatever on this accident. Shortly after, his employment was terminated he became ill from grippe or something similar which he admits had no connection whatsoever with the said alleged accident and he further admits that any and all results of said illness have no connection whatsoever with said alleged accident. Sometime after March 12th, 1928, he had a tooth removed and admits that that condition or any results therefrom had and have nothing to do with his said alleged accident. He admits that whatever disability there was and is because of said alleged accident is confined solely to his right hand and is advised by the physicians who treated him that said disability in all probability will disappear in time. It is admitted by the petitioner that there was no temporary disability arising out of his alleged accident.

Respondent denies that petitioner sustained the accident he alleges or any accident arising out of and in the course of his employment with respondent. Respondent further denies that petitioner sustained any permanent disability from the accident he alleges. Respondent, however, for the purpose of disposing of this case finally and completely, and taking into consideration all the injuries alleged to have been sustained by petitioner as a result of his said alleged accident, including any and all ultimate results of any and all said alleged injuries, and further taking into consideration petitioner’s admissions as stated and basing this settlement primarily on these things, is willing to settle the entire matter for fifteen per cent, of total permanent disability of his right hand, amounting to twenty-two and a half weeks at $17 a week; of this amount ten per cent, of total permanent disability, amounting to fifteen weeks at $17 a week has already been paid petitioner in accordance with the informal award of this bureau, leaving a balance of seven and a half weeks at $17 a week. Respondent further agrees that it will pay $22.50 of whatever counsel fee is allowed petitioner’s attorney.

# $ $ $ * * *

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAYMOND C. BESS, PETITIONER, v. NEUREITER & HORRE COAL COMPANY, RESPONDENT.
   A formal petition having been filed in this cause, to which an answer was thereafter filed by respondent, and the matter coming on in due course to be heard in this court at Elizabeth, and a basis of settlement having been arrived at by and between the parties and the matter having been submitted to the court and the facts having been stipulated, it is found and determined as follows:

That on September 1st, 1928, petitioner was employed by respondent at a wage of $25 per week. On said date, he sustained an accident resulting in two weeks’ temporary disability and no permanent disability^. The nature of the accident and whether or not it arose out of the course of his employment is disputed. Petitioner alleges that he was thrown off a wagon, bumping his head and receiving a cut which required five stitches. Respondent says that petitioner at the time was engaged in a fist fight not arising out of and in the course of his employment and as a result of which petitioner sustained minor cuts and bruises. Petitioner went back to work within three weeks of said accident and has been working steadily since that time. Petitioner states that he feels all right and has no ill effects from said accident. Respondent taking into consideration the allegations of the petitioner as to the injuries he received and any and all after effects of said injury, including any developments, if any, in the future as to his alleged injuries and directly or indirectly resulting therefrom, and making all these things a primary element in said settlement is willing to settle finally the matter of petitioner’s injuries in any way directly or indirectly arising out of the above-mentioned accident by paying petitioner the said two weeks’ temporary disability and, in addition thereto, a counsel fee of $15' to petitioner’s attorney.

It is, therefore, ordered that judgment final be entered in favor of the petitioner and against the respondent for two weeks temporary disability, at $16.66 per week, amounting to $33.32, and

It is further ordered that the respondent pay to the petitioner’s attorney, as counsel fee, the sum of $15.

Charles E. Corbin, Deputy Commissioner.


author: Bebby, V. 0.

text:
    Sea Girt Estates, a corporation, complainant, v. Susan M. Sutton et al., defendants.
    [Decided October 4th, 1929.]

      Mr. William A. Moore and Mr. Howard K. Shaw, for the complainant.

      Mr. Harry B. Cooper, for the defendants.
   Bebby, V. 0.

This bill is by the vendor against the vendees and seeks the specific performance of a contract for the sale of lands located at Sea Girt, New Jersey. The cause was heard by me on May 23d, 1929, and at the conclusion of the hearing I announced that I would advise a decree for the complainants. An appeal having been taken from that decree these conclusions are written for the purpose of that appeal.

The contract was dated September 23d, 1925, and provided for certain installment payments on account of the purchase price before settlement. The lands the subject of the contract consisted of a large number of lots described by lot number and block number and comprising several blocks of land and were referred to as.shown on “Map of Sea Girt,New Jersey, Prank Osborne, 1909.” The making of the agreement and the refusal of the defendants to perform are admitted. The defense is that the complainant cannot convey what it agreed to convey as it does not have title to some of the lots mentioned in the agreement, particularly lots Nos. 32 and 33, block 59 on the map referred to. Defendants claim that they bought the lots according to the map mentioned in the agreement as filed in the office of the clerk of Monmouth county. As a matter of fact, the complainant never owned the lots as shown on that map. These lpts, originally, faced on what was known as the Plaza, but several years before the date of the contract the borough took a part of the land owned by the complainant’s predecessor in title for the purpose of widening the Plaza and Crescent Parkway and lots 32 and 33 were then re-arranged by the then owner so that they fronted on Crescent Parkway instead of the Plaza. Defendants claim they did not know this and insist that as complainants cannot convey that portion of the lands which was taken by the borough, that is, lots 32 and 33, block 59, as originally laid out, the defendants are not obliged to perform. They claim not to have discovered this deficiency in the lands the subject of the contract for some months after the contract was executed, although before the date fixed for settlement. The deficiency, if there is one, is not such as might not be compensated for by an abatement in the purchase price, as it constitutes a very small portion, relatively, of the whole tract the subject of the sale, and an allowance on the settlement for such deficiency might very well be made, if necessary. It appears that after the widening of the Parkway and the Plaza the Sea Girt map was amended accordingly, particularly the Frank Osborne map of 1909 mentioned in the contract, and the original map which hung on the wall of the office of the defendant E. Y. Patterson, Jr., Incorporated, in Sea Girt, was corrected by the drawing of pencil lines thereon to show the property which was taken by the borough and the new location of lots 32 and 33. This was the map from which the complainants bought and it was this particular map which was referred to in the contract which is the subject of this suit.

The description of the property as contained in the contract here involved was given to Mr. Van Note, the lawyer who prepared the contract, by Mr. Bond, the vice-president of the defendant corporation. The map referred to in the contract, corrected to show the changes made necessary by the borough’s appropriation of some of the lots to public use or an exact corrected copy thereof was in Bond’s (corporation) office when he gave Mr. Van Note the description for the contract and the conclusion that it was this corrected map to which he referred in making up the description is inescapable. There is, therefore, in this case, no question of variation of the terms of a written instrument or of reformation of the contract, as might be argued, but rather what map was meant by the reference in the written agreement. Was it the map as originally prepared, a copy of which was filed in the county clerk’s office, or was it the corrected copy in the possession of the defendant E. V. Patterson, Jr., Incorporated? I am convinced that it was the latter and that the lots named in the contract were those shown on that map. Both Patterson and Bond knew of the alteration in the original layout of the property and of its notation on this map. That all of the defendants knew all about the change in the layout of these lots, and knew exactly what they were buying when the contract was made, I have no doubt. It appears from the evidence that E. V. Patterson, Jr., who is the president and the main factor in the defendant corporation, was instrumental in selling these lands to the complainant and afterwards acted as selling agent for the lots. At the time of that sale he explained to the complainants the alteration in the map. He finally formed the syndicate the members of which are the defendants in this cause. There can be no question, therefore, but that he (Patterson) knew all about the change in the layout; in fact, when he sent the contract here involved to the complainants to be executed he also sent to them by mail a number of copies of a new map which is known as the “Amended Map of Sea Girt, by Erank Osborne.” This new map shows the new layout of the lots as indicated by the pencil corrections on the original map which hung on the wall in Patterson’s office. The other defendants claim, however, .that his knowledge of this change is not imputable to them because he was the agent of the complainants. It is true that he had previously sold lots for the complainant but it is clear that in this transaction he was not the complainant’s agent, but he, or his company, was one of the purchasers from the complainant and represented the other defendants in the negotiations which resulted in the contract. He could not be both purchaser and agent for the seller. I think the evidence very clearly shows that in all this transaction he represented and acted for the other defendants and that the defendants were chargeable with whatever knowledge he had. There was an attempt to deny that he represented and acted for the other members of the syndicate, but every member who testified finally admitted his agency, and this was apparent. Aside, however, from this fact and the knowledge which he had, I think I am justified in finding by the evidence that the other members of the syndicate knew of the change in the plan of the lots and that they did not buy from the map as it was originally prepared, but that they bought from the map as corrected by the pencil markings referred to; and that each and every one of the syndicate knew what property they were buying. Miss Sutton, one of the defendants, frankly admitted that she knew exactly what she was buying and did not buy from the map at all. The testimony of the other défendants in support of their defense was rendered of little value by cross-examination and it is quite significant that E. V. Patterson, Jr., the controlling factor in the defendant corporation, did not testify at all and no explanation was offered as to why he did not.

There is still another reason why the complainants are entitled to a decree. All the defendants who testified said that they discovered the deficiency in the land sometime ■prior to January 14th, 11928. It would appear that that discovery was made sometime during the early fall of 1927. Notwithstanding this fact, no attempt at rescission was made and on January 14th, 1928, Mr. Patterson, on behalf of the syndicate, wrote to the complainant fixing a time for settlement under the contract. The attitude and actions of the defendants subsequent to the discovery of the alleged deficiency in land might well be taken to be an affirmance of the contract and a waiver of their right to rescind. Rut the fact is, however, that there was no disagreement or misunderstanding between the parties as to the exact land which was the subject of the contract when it was executed, nor as to the map referred to therein, and it was only months later that the defendants came to the conclusion that the map referred to in the agreement was not the one from which they purchased. They, or some of them, at least, had evidently then become disappointed with their bargain, and sought to evade their responsibility under the contract by a futile attempt to show that the complainant had contracted to sell something it did not own.

Pot these reasons I advised the decree from which this appeal has been taken.


author: Inokersoll, Y. C.

text:
    In the matter of the application for writ of habeas corpus for James B. Ewan.
    [Decided October 8th, 1929.]

      Mr.' Elwood Weeks, for the petitioner.

      Messrs. Eigbee & Eigbee, for the complainants.
   Inokersoll, Y. C.

The petitioner is in the custody of the sheriff of the county of Atlantic by virtue of a writ of capias ad satisfaciendum issued out of this court by virtue of an order in a suit wherein he is defendant and Margaret S. Middleton, executrix, &e., is complainant, docket 57, page 651.

He alleges “that said writ is illegal because there is no fraud perpetrated by the said James B. Ewan and no other ground upon which such writ could justly issue.”

No determination is now made whether an application should have been made in the original cause to have the writ set aside, as the solicitor of the complainant was notified and was present at the hearing upon the return of the writ of habeas corpus.

The allegations of the bill are, that at one time Ewan and one Steelman were partners in a business conducted by them; that in 1920 the business was discontinued and they agreed that all partnership transactions of the firm be closed and considered as nothing owing from one to the other. No debts were outstanding, and the only asset remaining was a tract of land described in the bill, which had been conveyed to them as co-partners, and in which they each retained a one-half interest; that thereafter Steelman died testate, having devised and bequeathed all the remainder of his estate (after the payment of his just debts) to his daughter, the complainant, and naming her and another executors.

That on April 1st, 1926, Ewan, as sole surviving partner, conveyed the premises for the sum of $5,300, and received in payment therefor a certain sum in cash and a mortgage upon this and other land as part consideration of the purchase price of this and the other land. That Ewan failed to account, and has repeatedly refused to account or pay over the amount due, although often requested so to do.

The answer was a denial of the allegation that said land was a partnership asset, but that Steelman had sold his interest to Ewan, and received a vaulable consideration therefor, but that no deed was made by Steelman to Ewan for said interest and that the complainant was estopped from claiming any right, title or interest in the premises, and prayed to be dismissed.

It was stipulated that if it was determined at the hearing that the defendant should be obliged to account, the amount due on October 19th, 1928, would be $2,682.86.

The cause proceeded to a hearing with the result that on October 30th, 1928, a final decree was advised that the said James B. Ewan should pay the complainant the sum of $2,682.86, with interest from October 19th, 1928, together with costs to be taxed. That payment should be made within ten days from service upon him of a copy of said decree and a writ of fieri facias should issue, and that complainant have such other remedies or proceedings as may be just.

On September 21st, 1929, the complainant filed a petition alleging such final decree, the personal service thereof, the failure of the defendant to pay, and “that there was fraud committed by the defendant upon the plaintiff as will be shown by the bill in the above-entitled cause, and was duly proven at the hearing of the cause at the time of trial, as will appear by the evidence submitted and the finding of the vice-chancellor who heard the cause,” and praying that a capias ad satisfaciendum be issued.

Such order was advised and the writ issued, and the defendant taken into custody by the sheriff.

The facts in this case are strikingly similar to those in Haggerty v. Badkin, 72 N. J. Eq. 473. The second headnote reads: “Where a surviving partner wrongfully misappropriated funds which he held in trust for the estate of his deceased partner, the latter’s administrator, in a proceeding in equity to compel the enforcement of a decree for the pay ment of the money, was entitled to process against defendant’s body, which would be executed in the absence of proof that defendant was unable to obey the order,” and the learned and quite lengthy opinion of' the learned Vice-Chancellor Pitney fully sustains this finding.

It would be useless to quote excerpts from-this opinion, and I apply that case to the case at bar.

'No attempt has been made to question the defendant’s ability to pay, and the writ will be now dismissed and the defendant remanded to the custody of said sheriff.


text:
    MARY S. JONES, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT. MARY S. JONES, EXECUTRIX OF THE ESTATE OF WILSON T. JONES, DECEASED, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Decided September 27, 1929.
    Before Justices Ternchaed, Kalisch and Lloyd.
    Por the rules, Bourgeois & Coulomb.

      Contra, David 0. Wailcins and George B. Marshall.

   Pee Curiam.

The plaintiff, in an action brought against the defendant, under the Death act, to recover the pecuniary loss which she sustained by the death of her husband caused by the negligence of the defendant company’s servants, obtained a verdict for $15,000.

She also brought an action against the defendant company in her individual right, to recover the value of an automobile, of which she was the owner, and which was being operated by her husband at the time of the accident, and which automobile was destroyed through the alleged negligence of the defendant company’s servants. In this action the plaintiff recovered the sum of $3,000. Both actions were tried together. A rule to show cause was allowed in each case, and both rules were argued together.

On the rule to show cause in the death action, the reasons presented, and relied on for a new trial, are: (1) Because the court erroneously charged the jury that "if the crossing bell were not ringing the plaintiff’s decedent would assume that the way was safe, and cross over the tracks without stopping, looking or listening for approaching trains.” (2) Because the court erroneously charged the jury that “if the crossing bell were ringing, then it was for the jury to say whether the plaintiff’s decedent exercised reasonable care in crossing over the tracks.” (3) Because the verdict was against the weight of the evidence on the question of liability. (4) Because the verdict is excessive.

On the rule to show cause why the verdict should be set aside in the automobile case, the same reasons are assigned with the exception of the fourth. No claim is made that the verdict of $3,000 is excessive.

The first ground argued and relied on for a new trial in the brief of counsel of defendant is that the trial court charged the jury: “If the crossing bell was ringing and you should so find, then it would be for you to say whether the act of the deceased in attempting to cross the tracks was under the circumstances that of an ordinary prudent man.”

The real significance of this excerpt, taken from the judge’s charge, can only properly be ascertained and weighed by taking into consideration the other circumstances of which the proof in the case tended to show existed at the time when the plaintiff’s decedent started to cross the tracks.

There was testimony to the effect that no bell Or whistle was sounded and also that no crossing bell was ringing. The testimony further discloses that there were obstructions in the nature of the existence of an embankment, and cars upon the siding, obstructing the view of the plaintiff’s decedent, as he was about to cross the tracks.

Moreover, there was plenary testimony that the crossing bell was not ringing before and at the time of the happening of the accident, and it is quite manifest from a fair reading of the testimony that the jury could have properly found that no crossing bell was ringing.

The contention on behalf of the defendant company, “that if the crossing bell were ringing at the time of the accident, the plaintiff’s decedent was guilty of contributory negligence, as a matter of law,” and therefore no recovery could be had, is unsound.

It is quite obvious that the court could not, under the crossing statute of 1910 (Pamph. L. 1910, p. 490), properly have taken away from the consideration of the jury the question of the contributory negligence of the decedent.

The true doctrine is laid down in Samkiwicz v. Atlantic City Railroad Co. (Court of Errors and Appeals). 82 N. J. L. 478. The second headnote of the cited case reads: “It is not a sound legal proposition that the mere attempt of one on foot to cross over a railroad track at a highway crossing when the gates are down, in doing which he is injured, raises a conclusive presumption that “he took all chances of the injury and cannot recover.” That the gates are closed is a circumstance to be taken into account in determining whether, under all the facts, he was negligent in not observing the warning thereby conveyed, but it does not conclusively convict him of contributory negligence.”

The only other reason urged for a new trial is that the verdict of $15,000 is excessive.

We do not think it is. The decedent was sixty-two years of age at the time of his death. He was in fairly good health, being about his work daily. He earned in the neighborhood of $3,600 a year from work performed by him. He had other sources of income. He contributed to the support of his wife between $3,000 and $3,500 a year.

According to the Carlisle tables the decedent had an expectancy of thirteen and thirty-one hundredths years of life. He was a man of frugal habits, and it is probable that he would have continued so. He left a comfortable estate, and it is likely and proper to consider that he would have augmented it if he had continued to live. There is more or less speculation entering into this class of cases, and we cannot say that the jury speculated wrongly or was actuated by prejudice, partiality, passion or mistake in reaching the verdict.

Each of the rules, therefore, is discharged, with costs.


text:
    WILLIAM H. WINTER, Jr., PLAINTIFF, v. BLUM’S INCORPORATED, AND SADIE BLUM, DEFENDANTS.
    Decided September 27, 1929.
    Before Justices Teenchaed, Kalisch: and Lloyd.
    Eor the rule, Barney Larlcey.

    Contra, Heine £ Laird.

   Pee Cueiam.

This case is before us on a rule to show cause to the defendant, Blum’s Incorporated, why a new trial should not be granted. Sadie Blum, the other defendant, obtained a non-suit.

There are eight reasons presented on behalf of the defendant why the verdict should be set aside. The reasons are: (1) Verdict is contrary to the weight of the evidence. (2) Verdict is contrary to the charge of the court. (3) Verdict is contrary to law. (4) The verdict is the result of mistake, passion, prejudice or partiality. (5) Verdict is excessive. (6) Because the trial court erroneously refused to grant a nonsuit on application of the defendant Blum’s Incorporated. (7) Because the trial court erroneously refused to direct a verdict in favor of Blum’s Incorporated. (8) Because the court erroneously charged the jury as follows: “If you find anything in the case which shows the defendant, in handling this globe, was negligent, as I have defined negligence to you, that, of course, will entitle the plaintiff to recover.” A fair reading of the testimony lends no support to most of the reasons.

The only reasons of sufficient importance and interest to be considered are reasons numbers five, six and seven.

Eeasons five and six involve the inquiry whether or not the trial judge should have granted a nonsuit or directed a verdict in favor of the defendant.

The facts of the case, as developed by the testimony, are these: The plaintiff was a customer of the defendant, and entered its store as such, and was standing against the counter when a metal chandelier fixture, together with the chain which attached it to the ceiling, dropped, striking the plaintiff on the head, and seriously injured him.

According to plaintiff’s story, both the fixture and globe attached to it fell upon his head. He testified: “I went in the store. I went down to Cedar street looking for Blum’s store. I had a couple of shirtwaists to have buttonholes put in, and it seems they moved to Halsey street, and I had to look in the telephone book to find out where they had moved. And I went in there. I went to the back of the store. Some elderly lady waited on me. I gave her the shirts and asked to have some buttonholes put in. While I was standing' talking to her about the shirts, this thing fell down and hit me on the head.”

The plaintiff, being asked if he saw the object which struck him, answered: “There was a man come running, and he showed me what hit me, because I asked, fwhat happened?’ He showed me a big shade about that big round, there were clamps on it—the witness indicated about a foot and a half in diameter—and he showed me the shattered glass on the floor.”

A reading of the testimony of the witnesses on part of the defendant, discloses that they corroborated the plaintiff’s story that the glass shade fell down from the ceiling, but as to how much of the fixture came down was in dispute, and there is some testimony to the effect that a glancing blow struck the defendant on his hat, and that somebody brought him a chair to sit down.

There can be no question that the defendant was hit upon the head, and that he was stunned by the blow. As to what extent he was injured, or how much of the chandelier struck him, was, as already stated, a disputed question of fact, and was for the jury to settle. The plaintiff made out a prima facie case, and therefore a nonsuit would have been improper. Nothing appeared in the testimony on behalf of the defendant which was a legal bar to the plaintiff’s right of recovery.

The only question which remained' for the jury to settle, under the' evidence, was whether the defendant used reasonable care to keep the premises in a rasonably safe condition. It was a jury question whether or not reasonable care was taken in providing a proper fixture, and in keeping it in proper repair. The fact that the fixture fell indicated there was some cause for its falling, either by the fixture being out of repair or not being properly fastened. The burden was upon the defendant to establish facts tending to show that it had used reasonable care, and it was for the jury to say from the evidence whether the defendant had exercised the reasonable care required of it, while it is true the'burden of establishing negligence of defendant rests upon the plaintiff and does not shift, nevertheless the burden rested upon defendant to establish the facts of the defense.

We think the motions for a nonsuit and for a directed verdict were properly refused.

Nor do we think that under the testimony as to the character of the injury which the plaintiff received, that the verdict is excessive. Prom the medical testimony it is quite clear that the blow which the plaintiff received was a severe one, and of sufficient force to stun him and to cause a concussion of the brain. The results which ensued from the injury, according to the testimony of the experts, indicate that the injury is a permanent one.

The rule to show cause is discharged, with costs.


author: Pee Ctjkiam.

text:
    IRVING ZACHAREWITZ, TRADING AS AUTO EQUIPMENT COMPANY, PLAINTIFF-APPELLEE, v. CARMINE STAMATO AND JOSEPH STAMATO, TRADING AS CARMINE STAMATO & SON, DEFENDANTS-APPELLANTS.
    Decided September 27, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    For the appellants, Heller & Boss (Aaron Heller, of counsel).
    For the appellee, Alexander & Cohn.

   Pee Ctjkiam.

The plaintiff-appellee brought its action in the Fourth Judicial District Court against the defendants-appellants, to recover an alleged balance of $412.24, dne to the plaintiff on a book account. To this demand the defendants filed 'a counter-claim setting forth that the plaintiffs owed them the sum of $100, with interest, arising out of a note transaction, and it appears this fact was not disputed, but was credited by plaintiff upon the account sued upon; and the counterclaim further sets forth that on January 29th, 1927, the plaintiff sold certain tires to the defendants for approximately the sum of $500, which were guaranteed by plaintiff to be free from defects and further guaranteed their use for about eighteen months, and that the said tires, after a few months use, because of defects therein, became unfit for further use, whereupon they were exchanged by the defendants, the plaintiff delivering to them new tires, which also were defective and became unfit for use after seven months’ use, the tires having been guaranteed for eighteen months’ use.

The case came on for trial before the court, sitting with a jury. The trial resulted in a verdict for the plaintiff. The verdict, as rendered by the jury, was as follows: "Judgment for plaintiff in the sum of $35 and return of tires.” This verdict was set aside by the trial judge.

The case subsequently came on for a new trial before the court and a jury, and resulted in a verdict for the plaintiff for the sum of $243.75, upon which verdict judgment was given. It is from this judgment the appeal is taken.

The first point made on this appeal is, that the trial judge refused to permit defendant’s counsel to state his defense and counter-claim to the jury in his opening address. This assertion is not substantiated by the record before us. The trial judge properly refused to permit counsel to state to the jury as to what were the findings of a former jury which heard the case, and the circumstances connected therewith.

The second point argued in the brief of counsel of appellant is that the court erred in charging the jury that the check of $41.25 was paid on account.

There is no merit in this contention. The record discloses that before the first judgment was vacated the defendants’ attorney sent a check payable to plaintiff’s attorney for $41.35, upon which check was written these words: “Re: Satisfaction of Judgment, Auto Equipment Company v. Stamato.” This check was cashed by plaintiff’s attorney, and credited to his own account. The plaintiff’s atorney said, he accepted the check on the promise of the defendants’ attorney that the rejected tires would be returned to the plaintiff, as was the verdict of the jury in the first trial of the case.

The record further discloses that the return of the tires was refused, and that the verdict was subsequently set aside. The posture of affairs then was, that plaintiff’s attorney had the proceeds of the check sent him by the defendants’ attorney, and of course, the.re being no judgment on record there could be no satisfaction of it on record. Neither does it appear in the record that the plaintiff’s attorney was authorized by the former to settle the judgment upon any other terms than that set forth in the verdict of the jury.

There was no appeal taken from the action of the trial judge in amending the verdict, as the jury found it, and in setting the verdict aside as an improper one and in ordering a new trial.

From aught that the record discloses, defendants went to trial without any objection, and therefore the $41.25 paid by check to plaintiff’s attorney could very well be considered by the jury as a payment on account, in view of the fact that the defendants did not return the rejected tires to the plaintiff, as agreed.

The next point argued in appellants’ brief is, that the “court’s charges were prejudicial in line with the attitude taken by the court throughout the entire case, as a result of which said defendant was not given a fair trial.”

This point cannot avail the defendants since it does not set out the particular error alleged to have been made by the trial judge for which a reversal of the judgment is sought. Moreover, a fair reading of the record before us does not support the contention of counsel.

Judgment is affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, EX REL. CHARLES S. ECKERT, PROSECUTORS, v. THE BOARD OF ALDERMEN OF THE CITY OF PATERSON ET AL., DEFENDANTS.
    Argued October 3, 1929
    Decided October 3, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the prosecutors, Charles H. Boemer.

    Eor the defendants, Nathaniel Kent.

   Per Curiam.

This writ of certiorari brings up for review a resolution of the board of aldermen of the city of Paterson appointing .commissioners to divide the city of Paterson into wards. The action of the city is based upon chapter 264 of the laws of 1929, which grants power to change ward lines to “any municipality having a board of aldermen.” This classification contravenes article 4, section 7, subdivision 11 of the constitution of the state. See Ross v. Winsor, 48 N. J. L. 96; Dobbins v. Long Branch, 59 Id. 146; Delaware River Transportation Co. v. Trenton, 86 Id. 48; affirmed, 86 Id. 679, and Hueston v. Atwater, 97 Id. 414.

This view makes it unnecessary to consider the other points raised.

The resolution will be set aside.


text:
    DAVID GROSS, APPELLEE, v. IKE JACOBSON, APPELLANT.
    Argued October 1, 1929
    Decided October 3, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Isador V. Davis.

   Per Curiam.

This is a suit on a bank check made by appellant to the order of cash, delivered to one East, and by him endorsed and delivered to plaintiff-appellee for a valuable consideration and without notice of infirmity in the original consideration for the check. The trial judge awarded judgment for the plaintiff, and if the ordinary rule in such cases had been applicable, this would have been correct; but it appeared on the trial without contradiction that the check had originally been given as the result of a gambling transaction and to settle a gambling debt.

The case of Fisher v. Brehm, 100 N. J. L. 341, in the Court of Errors and Appeals, lays down the rule, of course,

controlling here, that such an instrument is void and unenforceable when in the hands of a Iona fide holder. This rule seems to have been disregarded in the trial court, and the judgment was consequently erroneous, and must be reversed.

Appellee has not appeared by counsel and has submitted no brief.


text:
    BELLA CHAUSMER, PLAINTIFF-APPELLANT, v. HERMAN ARONS, DEFENDANT-RESPONDENT.
    Decided October 11, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Eor the motion, J oseph Zemel.

      Contra, Fast & Fast.

   Per Curiam.

The motion is based upon an affidavit and the judgment record of the District Court of the second judicial district of' Essex county which have been submitted.

Our examination of the matter leads us to the conclusion, after a consideration of the argument, that the motion of the plaintiff-appellant for costs should prevail, and it is so ordered accordingly.


text:
    AEOLIAN COMPANY, APPELLEE, v. MORRIS W. SHAPIRO, APPELLANT.
    Submitted January 25, 1929
    Decided October 14, 1929.

      Before Gu.umeee, Chief Justice, and Justices Parker aud Bobine.
    Eor the appellant, Olto A. S lief el.

    For the appellee, Samuel G. Meisierman.

   Per Curiam.

The suit is oil a written guarantee which reads in lull as follows: “In consideration of the extension of credit by the Aeolian Company and shipments of merchandise to the Music Box and George II. Kahn under a separate agreement, we (I) Morris W. Shapiro, of 207 Market street, Newark, New Jersey, do hereby guarantee the payment to The Aeolian Company, of 29 West Forty-second street, New York City, or any of its allied or subsidiary companies, to the extent of six hundred dollars, for such indebtedness as may be incurred by the George II. Kahn of Music Box and we agree to settle for the obligations of the said George II. Kahn of Music Box on request.

“This guarantee majr be canceled by either party upon sixty (60) days written notice to the other, providing all indebtedness outstanding at the time of cancellation is liquidated by the expiration of the sixty (60) day period.

“Signed—Morris W. Shapiro,

The Assouan Company, per

Witness—Ira Sciiaef.

Witness—.”

The evidence shows that this paper, which is not dated, was executed about the 3d or 4th of February, 1922, or perhaps a day or two earlier. At the same time or a day or two previously the plaintiff had made a written agreement with George H. Kahn named in the guarantee which bears date January 31st, 1922, and bears generally on the matter of sales, purchases, discounts, terms of credit, &c. The plaintiff, regarding the guarantee as a continuing one, kept a running account with Kahn for goods sold over a period of some four years, and finally Kahn became bankrupt owing the plaintiff about $780. The defendant was called upon to make good his guarantee to the extent of $600 and refused to do so, claiming in the first place that the guarantee had by its terms applied only to the first $600 of credit which had long since been paid; secondly, that the plaintiff’s agent who was present when defendant signed it, assured the defendant that it was only intended for the first $600; thirdly, that the same agent gave him another paper to sign which was represented to be a sixty daj^s’ notice of cancellation and that he signed it and gave it back to the agent; and fourthly, that the guarantee had become invalid because of certain extensions of time given by the creditor.

The questions of fact were fully and fairly laid before the jury by the trial judge and the jury evidently resolved them against the defendant. The judge distinctly told the jury that if the agent had made any such representations with regard to the effect of the guarantee or its contents as was claimed by the defendant they should find a verdict for the defendant. The latter testified about these other papers that he had signed an alleged notice of cancellation and sent it forward to the agent for the plaintiff. A man named Lake-man also testified for the plaintiff that he had received the papers purporting to be signed by the defendant, and there was nothing except the guarantee itself and a letter. This letter is printed as an exhibit, and reads “Enclosed please find copy of guarantee as per your request,” &c., and is signed by George H. Kahn. It is a legitimate inference that the defendant left everything to Kahn and either that defendant never did sign any such notice of cancellation, or if he did that Kahn suppressed it and sent on the guarantee without the cancellation; all of which is no fault of the plaintiff.

Point 1 for the appellant is that the guarantee cannot be construed as relating to the later sales between September, 1923, and March, 1924. We construe it as a continuing guarantee relating to the written agreement for sales and purchases and effective until properly revoked.

Point 2 is that the earlier sales ha'd all been paid for. This is of course true.

Point 3 is that the guarantor has the right to expect that he will not be held to guarantee any other contract than the one which he guarantees. This may well be conceded.

Point 4 is that the nonsuit should have been granted. We think there was clearly a jury question.

Point 5 is that the court refused to charge that if the plaintiff made any agreement with Kahn for the postponement of Kahn’s indebtedness plaintiff cannot recover, &c. We think the charge was properly refused under the case of Pfeifer v. Crossley, supra. The word “agreement” in the request is ambiguous, but there was nothing in the evidence to indicate any agreement based on valid consideration or anything more than a voluntary extension of credit.

Point 6 is that the proofs make it plain that between September and March aforesaid plaintiff dealt with Kahn solely on the basis of his own credit without regard to the guarantee and hence there should have been a direction for the defendant. This seems to be based upon the testimony that during the period in question the plaintiff received trade acceptances from Kahn for goods purchased. It seems quite immaterial to us whether the plaintiff did or did not. We construe the guarantee as an absolute guarantee of payment of indebtedness incurred by virtue of the purchase and sales agreement between plaintiff and Kahn, so long as that and the guarantee remained in force; and under the rule laid down in Pfeiffer v. Crossley, supra, it was immaterial whether plaintiff extended the term of credit or accepted defendant’s bills for what was owing.

The judgment will be affirmed.


text:
    JULIUS W. CORDTS, ADMINISTRATOR AD PROSEQUENDUM, OF HILDEGARDE CORDTS, DECEASED, v. CLARENCE VANDERBILT.
    Submitted January 25, 1929
    Decided October 14, 1929.
    Before Gummere, Ohiee Justice, and Justices Parker, and Bodine.
    Eor the plaintiff, Edward A. Marhley.

    Eor the defendant, William B. Wilson.

   Per Curiam.

The case arises out of an automobile accident. On Eebruary 3d, 1926, Mrs. Cordts, a young married woman of about thirty-five years of age, with her young son, went in the late afternoon a few blocks to see the old grandmother who lived at Westfield on 'a street called Trenton avenue which runs northeasterly into South avenue. The Cordts family lived on South avenue. It was the middle of winter and there was, or had been, a very severe snow storm. The evidence is contradictory as to whether it was snowing at the time of the accident or had cleared off.

The streets were well lighted after dark, when the mother and son started back in an easterly direction from the grandmother’s to their own home. There were abont eighteen inches of snow on the gronnd and this had, according to the boy’s testimony, covered what sidewalk there was and left only the roadway to be nsed by pedestrians as well as by vehicles. Presently, the lights of a car were seen and the mother said to the boy that he had better go up on the sidewalk or out of the road quickly because it was coming very fast. lie did the best he could but he was struck, though not seriously injured, and when he collected his senses, he saw his mother lying in the road some feet away and the car some three hundred feet further. The mother was picked up and carried into a neighboring building, and on examination she was found to be dead. The defendant’s story was that it was snowing hard; that he could see no more than two feet ahead, although his windshield wiper was working and his headlights were on; that he did not see the woman nor her son and did not know they were there until he felt a jar. IIis estimate of his own speed was fifteen miles an hour.

The three reasons argued are—first, that the verdict is against the weight of evidence; secondly, that the plaintiff should have been nonsuited, and third, that the plaintiff did not show that he had suffered any pecuniary loss or injury by reason of the death of his wife.

We think that the verdict is not against the weight of evidence; and if not, the matter of nonsuit requires no discussion. Counsel argues that, because the night was so stormy, the woman should have remained ‘ on the sidewalk; but the evidence justified the jury in finding that the sidewalk was impracticable because of snow. We agree with plaintiff’s counsel that the defendant’s own testimony convicts him of negligence; for if the physical condition prevented him from seeing what was ahead of him, he was under a duty of greater care commensurate with the increased danger. Ball v. Camden, &c., Railway Co., 76 N. J. L. 539, 541; Anderson v. Public Service Corp., 81 Id. 700; Minarcsik v. Blank, 102 Id. 231, 234; Osbun v. DeYoung, 99 Id. 204; Hammond v. Morrison, 90 Id. 15; Devine v. Chester, 144 Atl. Rep. 322; 7 N. J. Mis. R. 131. As to contributory negligence, it was clearly a jury question, and we take no exception to their finding, as they must found, that none had been satisfactorily shown.

The last reason argued is that the plaintiff did not show that he suffered any pecuniary loss or injury by reason of his wife’s death. Under this head the argument is that “there should have been no damages allowed.” We are therefore not concerned with the excessiveness or otherwise of the verdict, but only with the question whether a substantial verdict can be supported. There was no evidence of pecuniary loss in figures. The claim of plaintiff as husband, recognized by the amendment of 1913 to the Death act (Pamph. L., p. 586), must he based in large measure on her services as housekeeper in his home, and for which he must pay in case of her death, unless he should remarry. It was held in New York that the damage in case of a young child need not be proved in figures. Ihl v. Forty-Second Street, &c., Railroad Co., 47 N. Y. 319. See, also, 17 C. J. 1352. This proposition may not have been formulated in our decisions, hut must have been applied in a number of them, as e. g., Smiley v. Reid Ice Cream Co., 135 Atl. Rep. 504; Fleming v. Lobel, 59 Id. 27; Maggio v. Flusser, 67 Id. 932. The death of a wife and mother where as in this case, she seems to have been the working home member of the family, reasonably connotes a substantial pecuniary injury. Hence we conclude that a substantial verdict was justifiable.

The rule will be discharged.