author: Plannagan, J.

text:
    Essex County Court of Common Pleas.
    CATHERINE HAMILTON, PETITIONER-APPELLEE, v. CONGOLEUM NAIRN, INCORPORATED, RESPONDENT-APPELLANT.
    Por the petitioner-appellee, Samuel Greenstone.

   Plannagan, J.

This is an appeal from the workmen’s compensation bureau awarding compensation to the petitioner for the death of her husband, William Hamilton.

The decedent, while discharging the duties of his employ, fell from a scaffold, broke his leg, and sustained injuries to his head. These injuries were not of such a character as alone to produce death; The deceased died about eight months after these injuries were received and it is contended that these injuries accelerated and brought to a fatal and final stage a previous condition of syphilis and were thus the cause of his death.

The proceedings on the part of the petitioner were undoubtedly tainted with fraud in which she persisted until it was obvious that her program could not be successfully carried further. Her purpose was to conceal the previous symptoms of advanced syphilis which had been manifested by her husband in a marked degree before the accident, testifying that he was in good health, was cleanly and had no trouble with his bowel movements or mental condition prior to that time. She swore that the physician, Dr. Poster, who had attended him for syphilis years before the accident had never attended him at all except for some stomach'disturbance. Being forced on cross-examination to admit that her testimony was perjured she adopted the contention above indicated.

The deceased had been a sufferer from syphilis for eight or ten years before the accident. He had never received any intensive modern'hospital treatment.. The disease is fatal in ordinary cases in from eight to ten years. Though going about his daily work the deceased had reached an advanced stage of the disease. He had already had several strokes or epileptic seizures, he dragged his leg when he walked, had so far lost control of his organs that he urinated and deñcated involuntarily in his clothes on the street and elsewhere, and manifested other symptoms.

The petitioner claims to have shown by a fair preponderance of the evidence that the trauma sustained at the time of deceased’s fall accelerated the syphilis from which the deceased suffered, and was thus the cause of his death.

I am of the opinion that this claim is not made good. On the contrary, I am of the opinion that the petitioner’s husband’s disease was in the last and final stages at the time of the accident and that his death about eight months thereafter was due to the normal progress of the disease and not to the accident. The weight of testimony sustains this conclusion.

A statement of fact and determination in accordance herewith may be submitted in accordance with rule 6.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS FLOOD, PETITIONER, v. NEWARK PLUMBING AND HEATING COMPANY, RESPONDENT.
    Eor the petitioner, Richard Spitz.

    For the respondent, Richard W. Baker.

   It was stipulated and agreed that the petitioner’s deposition taken in the City Hospital on February 20th should be admitted in the testimonj’, and it was further stipulated that the petitioner was employed by the respondent on the day of the alleged accident on August 11th, 1926, and that his wages were over $25 per week.

In addition to the deposition of the petitioner, Dr. Zerlip, Dr. Kessler, Dr. O’Neil, Mr. Weiss, Mr. Yreeland, Mr. Picot and Miss Ritchie were called to testify. On behalf of the rspondent Dr. Washington and Dr. RuofE were called to testify and by stipulation it was admitted in the evidence that the Rogers-Ebert Company had delivered the bathtub to the premises where the petitioner was injured on August 4th, 1926, and further the payroll records showing the time that, the petitioner worked were admitted in the evidence.

There were two main questions involved in the ease, the first being whether or not the petitioner sustained an injury by accident arising out of and in the course of his employment with the respondent on August 11th, 1926, as alleged, and the second being whether or not if he did sustain such an injury it aggravated a latent condition of tuberculosis and thus caused tuberculosis of the spine from which the petitioner is at the present time suffering so that he is now totally and permanently disabled.

On the first question I have carefully analyzed the testimony and I find that the petitioner has failed to sustain the burden of proving that'lie received an injury by accident arising out of and in the course of his employment on August 11th as alleged. In his own testimony he stated that the accident happened about August 11th, or in the early part of August. He then further stated that he remembers that they were waiting to work on the tub which had not yet been delivered at the job at which they were at that time, that the tub was delivered that afternoon, and that on the next day he carried it up the stairs with the assistance of Mr. Weiss. He was very positive that the tub was delivered ■one afternoon and that he was injured the next day, and in this he is known to be borne out by Mr. Weiss. As it was stipulated and agreed that the tub had been delivered on August 4th, it would seem to prove the date of the accident as August 5th and not August 11th. Further, the petitioner stated that he was paid for a full day on the date when the alleged accident happened, and the payroll records show that on August 5th the petitioner was paid for a full day but on August 1'lth he was only paid for a half day and rather indicates that he did not work on the afternoon of that day.

As stated before, Mr. Weiss seems to corroborate the petitioner in regard to the date when the tub was carried up and though Mr. Yreeland, who was an officer of the respondent company at the time of the alleged accident, testified that the accident happened on August 11th, still he went on to say that on his recommendation the petitioner stayed away from work a couple of days after the alleged accident and then he came back for a few days, being given lighter work by Mr. Yreeland because his regular work was too heavy. As the payroll records show that the petitioner did not work any time after August 11th, it must have been sometime previous to that time that the petitioner was injured as alleged, and if we take the date of August 5th he was out a couple of days after that time. This is also borne out by Mr. Weiss who stated that the petitioner returned to work for a few days after laying up for a while and then had to quit. Accordingly, from all the testimony in the case I find that the petitioner has failed to sustain the burden of proving an injury by accident as alleged on August 11th, 1926, and therefore the case should be dismissed on these grounds.

On the medical aspect of the case we have the varying opinions of the doctors, the two doctors for the respondent testifying that in their opinion the alleged accident had no bearing on the man’s condition of tuberculosis of the spine and also there was no definite diagnosis of such until March, 1927, as before that time an examination of the sputum was negative. On the other hand, Dr. Kessler and Dr. Zerlip who saw the man in the ward of the City Hospital testified that though the alleged accident could not have caused such a condition, it could have aggravated a latent condition and there was some discrepancy in their testimony as to how long a period of time could pass by before a latent condition aggravated by an accident would appear so as to be clearly diagnosed. The main medical testimony in the case seems to be that of Dr. O’Neil who was the attending doctor and saw the petitioner first about the first part of September, 1926. Dr. O’Neil could not diagnose the condition and in spite of several sputum and X-ray tests taken at the hospital was unable to find at any time that there was a tubercular condition. He did find out, however, when he placed the petitioner in the hospital that the petitioner had a definite condition of chronic appendicitis and this condition became so acute that he was forced to operate upon him for it and this for the time relieved the pain complained of in the stomach and also in the back. As this doctor did not at any time find any condition of tuberculosis present up to -and including the first part of March, 1927, and as there was no evidence in this to show that the petitioner was suffering a latent condition of tuberculosis in August, 1926, I cannot infer that such a latent condition existed at that time when there was no evidence of it and where it did not exist in spite of X-rays and in spite of sputum tests up until about the month of March, 1927. Accordingly, I feel that the petitioner has failed to sustain the burden of proving that even if ho had proved an injury by accident as alleged that this injury accelerated a latent condition so as to make the present condition of tuberculosis of the spine a compensable one.

Accordingly, I hereby order that the case be dismissed without costs to either party.

Habby J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALEXANDER PATASKY, PETITIONER, v. SINGER MANUFACTURING COMPANY, RESPONDENT.
    For the petitioner, Edwin Joseph O’Brien.

    For the respondent, Ralph Cooper, of Palmer & Cooper.

   The petitioner, a foreigner, who speaks very poor English, was sworn, and testified that while working on a car at the Singer company plant, that the vamp broke, precipitating him to the ground, where he struck the back of his head, his chest and back. Under repeated questioning, both by the .attorney for the petitioner and the attorney of the respondent, as well as by myself, the petitioner was emphatic in his statement that he injured the back of his head pointing to the base of the skull, the chest, and also the lower portion of the back. The petitioner, from my close observation of him while on the stand, was an individual of very lethargic temperament, his reactions being very slow, and his eyes having a far away look in them. He is a man of rather attenuated stature, with somewhat of'a stooping posture, high cheek bones, which show prominently because of the lack of flesh on his face. Due to the petitioner’s poor conception of the English language, it was extremely hard to get anything out of him without the aid of an interpreter. The petitioner testified that sometime later, following the accident of July 2d, 1926, at which time everything “turned black,” he had gradually lost weight, become more irritable, more nervous, more restless at night, with the passing, of time, gradually lost his appetite, and that although he has endeavored to work as steadily as possible since the accident, he has reached the stage where he is unable to continue steadily at work.

His wife was next sworn, and she testified that beginning at a time approximately a year after the accident, although she is not clear as to the exact time, the petitioner has become so irritable that he has beaten her and choked her and,-on one occasion at least, bit her on the arm, and that this temperamental change is in direct contrast to his attitude before the accident. She testified that before the accident he was a quiet, normal-acting man, but that since the accident he has gradually developed to a condition which makes her living with h'im practically unbearable, not to say dangerous.

The petitioner next produced Dr. Szerlip, an orthopedic surgeon who stated that his orthopedic findings were practically negative and that in his opinion the case was a neurological one. Dr. Szerlip took four X-rays which were introduced in evidence to corroborate his findings.

Dr. Dias, ah expert eye, ear, nose and throat doctor, was next introduced on behalf of the petitioner and testified that he made two examinations of the petitioner. One on January 28th, 1928, and the second examination on March 15th, 1928. At the first examination Dr. Dias testified he found nothing attributable to the accident of July 2d, 1926, but that on the second examination of March loth, 1928, he found a tubular vision, which he ascribed to a brain lesion, and stated that in his opinion, due to accident also, the ease was a neurological one.

Dr. Bergman, an expert in the field of neurology was next introduced by the petitioner, and testified that he treated the petitioner, for his head injury, beginning at October loth, 1926, and continuing for some seventeen or eighteen treatments until Eebruary 17th, 1927. Dr. Bergman testified that his bill for treatment was $85, which has not as yet been paid. A very significant point is to be noted at this stage of the case, and that is, Dr. Bergman who was called upon to treat the petitioner, by the petitioner, obtained a history from the petitioner as to the accident, in which the petitioner informed Dr. Bergman that he had injured his head, as well as other portions of his anatomy. Certainly, if Dr. Bergman is to be believed, if the petitioner went to him for treatment for his head, as well as other parts of his anatomy, at that early stage, it strongly tends to corroborate the petitioner’s story of a head injury, and I might note, in passing, that inasmuch as the petitioner went to Dr. Bergman for treatment for his head condition, after his discharge from treatment by the respondent, and inasmuch as the respondent did not treat him for his head condition, that Dr. Bergman’s bill is properly allowable against the respondent as part of the treatment of petitioner’s condition, so’that Dr. Bergman’s bill of $85 for treatment is allowed against the respondent. Inasmuch as Dr. Bergman’s testimony as to treatment and history stands undisputed in the case, and inasmuch as his credibility has not been effected, I am led to the conclusion that as early as three months following the accident the petitioner went to a doctor for treatment for a head condition, which he alleged to be due to the accident of July 2d, 1926. Dr. Bergman examined petitioner the morning of the first hearing, March 20th, 1928, and found, so he says, a developed neurotic condition, accelerated or increased from that found by him in Eebruary, 1927. Dr. Bergman says that the present picture is the result of the trauma of July 2d, 1926, and places the disability at over sixty per cent. So much for that.

Next we come to the testimony of Dr. Prout, a neurologist introduced on behalf of the petitioner who 'examined the petitioner on several occasions, and whose positive assertion is that the present condition of the petitioner is due to the accident of July 2d, 1926, wherein the petitioner suffered a brain injury. Dr. Prout places the petitioner’s disability at fifty per cent. Cross-examination of Dr. Prout only served to in-, tensify the fact that Dr. Prout’s emphatic opinion was that the man has reached his present state of permanent disability to the extent of fifty per cent., as Dr. Prout puts it, as a result of the trauma inflicted upon him on July 2d, 1926. I must say that I am very favorably impressed with the testimony of Dr. Prout in its entirety.

The petitioner then called as his final witness Dr. Christopher 0. Beling, an expert in the treatment of mental and nervous diseases who stated that he examined the petitioner on two occasions, oncé in September, 1927, and once on March 8th, 1928. Dr. Beling stated very forcibly that in his opinion the accident of July 2d, 1926, was the cause of the petitioner’s present disability, which Dr. Beling estimated as one hundred per cent, total disability. Dr. Beling admitted that he found no neurological symptoms in September, 1927, when he examined the petitioner, but that when he examined the petitioner again on March 8th, 1928, he found the neurological picture which presents itself at the present time, and that this is the course that he would expect the petitioner to travel, having in mind the trauma inflicted upon him on July 2d, 1926.

The respondent’s cross-examination of these doctors was based on the presumption and assumption that the petitioner’s condition was “practically the same” or “the same” as it had been in 1923, following an accident which occurred to petitioner’s foot. In view of the fact that Dr. Dowd, the only neurologist on behalf of the respondent who actually examined the petitioner, stated that the neurological picture of 1923 and 1928 were “entirely, dissimilar,” it appears to me that the cross-examination and whatever result may have been sought for, were futile in the face of this testimony of Dr. Dowd. Certainly, if the only neurologist oh behalf of the respondent who examined the petitioner found an entirely different neurological picture in 1928 from what existed in 1923, then the cross-examination, as founded on the assumption of counsel that the neurological picture was the same, or practically the same in 1923 as in 1928, is without forec and effect. Again, so far as the testimony in the case shows the foot condition which was caused by the accident of 1923 does not at present exist.

At this point, it might be well to call attention to the fact that there is a strong dovetailing of the testimony of the petitioner and respondent in one regard, and that is that the petitioner in September, 1927, showed no apparent neurological symptoms of any kind. Dr. Dowd testified to that, on -behalf of the respondent, and Dr. Beling also coincided in this statement, on behalf of the petitioner. Inasmuch as the last examination of the petitioner by any of the respondent’s doctors was at this time, to wit, September, 1927, it becomes readily 'apparent that the respondent’s doctors are not in a position to state the petitioner’s present condition, and his course of development since September, 1927, as compared to the petitioner’s doctors, who have examined the petitioner on different occasions from that time to the present date.

The respondent’s case commenced on April 3d, 1928, the second trial day, and Dr. Buck, the plant physician was sworn as the first witness. Dr. Buck testified that he did not find any symptoms of head injury on the part of the petitioner, and that the petitioner did not complain to him of any head injury, and that when he asked the petitioner where he was injured, in addition to his chest and back, the petitioner said “nowhere else.” Dr. Buck did say, however, that he did not carefully examine the petitioner’s head for signs of injury. And it might be worth noting here that though the petitioner, according to the respondent’s testimony, was not severely injured, yet he was confined to the hospital at the suggestion of Dr. Buck for two days under observation. What the observation was for, of course, is entirely conjectural, because the records of the hospital, or any reference as to their contents was not adduced.

Two nurses were also introduced, on behalf of the respondent, who testified that the petitioner neither complained of any head injury, nor, when questioned regarding whether or not he had been injured anywhere else, stated that he had received any head injury. However, owing to the fact of the petitioner’s very poor use of the English language, and to the fact that he was undoubtedly badly shaken up at the time, I do not place very much weight on the testimony to that effect.

In like manner I might dispose of the testimony of the three lay witnesses who were introduced to show that the petitioner had not suffered a head injury. Not a single one of them saw the petitioner actually struck anywhere. They saw him on his feet, placing his hands to his chest, then slumping down. Suffice to say that I am not favorably impressed with their testimony because, if the accident was as they contend, I do not see how he could have injured even his back and chest, much less to have suffered an injury of sufficient consequence for the petitioner to have been sent to the hospital for two days. In short, I believe that the petitioner suffered injury to his head at the time of the accident, but that the same did not show up for some considerable time later, and that this was the reason for his failure to complain of his head when given first aid by Dr. Buck and the nurses, when one also takes into consideration the fact of his poor knowledge of the English language, and his undoubted dazed condition at the time of the injury.

Dr. Keppler, an orthopedic surgeon, was introduced by the respondent as were Dr. Holden and Dr. Kessler. These three doctors are orthopedic or industrial surgeons, and the total of their examination might be summed up briefly to the effect that they contend that the petitioner was neurotic preceding the accident, of July 2d, 1926, and that the accident of July 2d, 1926, plaj^ed no part in the petitioner’s present condition. None of these three doctors is a neurologist, or has qualified as a neurological expert.

On the part of the respondent, Dr. Dowd was next introduced who testified that the petitioner’s condition, in his opinion, was not the result of the accident of July 2d, 1926. The last time this doctor examined the petitioner was in December, 1921, at which time no neurological symptoms were apparent, which of course is agreed to by Dr. Beling o-n the petitioner’s side of the case. Dr. Dowd, however, reiterated several times that the petitioner’s present condition was totally different from that of the neurological picture presented in 1923 which, in my opinion, takes the ground work completely from under respondent’s cross-examination of petitioner’s neurologists which was based upon the fact, as stated before, that the petitioner’s neurological picture was the same in 1923 as in 1928. Dr. Dowd in a very informative and interesting manner admitted, however, that an arterial scelerotic condition in the sells turcica might be aggravated by a trauma or that a new growth in the brain or meninges might have caused the petitioner’s present condition, or that a degenerative process in the basil ganglia and connecting paths might have been hastened by a trauma, causing the neurological deterioration testified to by the petitioner’s doctor. The doctor also stated that it cannot be denied that trauma may play a part in a Parkinsonian syndrome.

The next witness produced by the respondent was Dr. Washington, who, though he admitted that the majority of his practice for years past has been appearing for defendants in negligence actions in the upper courts, classified himself as an expert neurologist also. Dr. Washington never examined the petitioner, so far as the testimony shows, and his testimony was based purely and wholly on hypothetical questions propounded to him by counsel for the respondent. Dr. Washington stated that in his opinion the trauma of July 2d, 1926, did not cause the petitioner’s present condition.

It might be stated at this point, emphatically, that not a single other causative factor than the trauma of July 2d, 1926, is advanced by the respondent’s medical witnesses as the cause of the petitioner’s present condition of disability. Though in their opinion the trauma did not cause the pe- . titioner’s present condition, yet they are unable to, or at least did not, state what it was, if not the trauma of July 2d, 1926, which caused the petitioner’s present condition. The respondent’s reliance on the fact that the petitioner’s neurological picture was the same in 1923 as in 1928 was completely shattered by two factors which appeared in the case, viz., the fact that the only neurologist who examined the petitioner, on behalf of the respondent, stated that the neurological picture was entirely different in 1928 from what it was in 1923, and, second, that although both respondent’s and petitioner’s witnesses agree that in a case presenting a picture of neurological retrogression, as in this case, that there is no remission of symptoms, and that though the symptoms might change or be slightly diminished there is no cessation of the symptoms and then a spontaneous recurrence of them again, both the respondent’s and petitioner’s neurologists agree there was a lack of gross neurological symptoms in September, 1927.

As to the petition which was introduced on behalf of the respondent, it is sufficient to say that it does not appear who filled out the petition, whether Mr. Greenstone, or some clerk in his office, or that the person who filled out the petition had any better means of understanding what the petitioner stated than both counsel and myself had when an interpreter was not used. Furthermore, the fact of no head injury appearing in the first petition, which was dismissed for lack of prosecution, is more than offset by the fact that Dr. Bergman testified that within three months of the accident the petitioner came to him for treatment for a head condition, complaining that he sustained a head injury, in addition to other anatomical injuries, in the accident of July 2d, 1926. The only other possible explanation for Dr. Bergman’s statement to this effect is that Dr. Bergman is stating an untruth, a fact which was not even suggested by the respondent in this case. Furthermore, if as much attention was given to filling out the petition as was. afterwards shown in the prosecution of the original petition, which was dismissed for lack of prosecution and allowed to lie in that condition until the limitation in the statute had almost run, then I do not believe much stress can he placed on that so far as any probative force or effect is concerned.

Again in the conduct of this case, as in the conduct of many others which I have heard, in viewing the actions of the witnesses, their demeanor on the stand as they gave their testimony, their manner of answering, apparent interest or lack of interest, and the other factors which may have motivated their testimony, if indeed there were any, were all taken into consideration by me. After listening to the various witnesses on the stand, observing them closely, observing their position in reference to the case, their connection with the case, and their ability to have seen the things which they stated they had seen, and also the facts which they claim they found and ascertained, their manner of testifying while on the witness stand under both direct and cross-examination, I have come to the conclusion, without much difficulty, that the petitioner has established his case by the ample preponderance of the evidence that ho is at the present time suffering from a disability permanent in character and partial in quality, amounting to fifty per cent, of total disability, and that the cause of his present permanent disability, as stated, was the trauma which the petitioner suffered in the accident of July 2d, 1926, when he injured not only his chest and back but also the back of his head, resulting in a brain injury as described by the petitioner’s doctors, which gradually began a course of progress until it resulted in the picture we see before us today, i. e., a man one-half disabled, when considered as a physiological unit for the purpose of industry.

In regard to respondent’s contention, brought up after the trial, that the award granted to the petitioner for his foot injury of 1923 should be deducted from this award, I cannot agree for two reasons: Eirst, the respondent’s own questions in the case were predicated oh the fact that there had been a cure of the petitioner’s foot; and, secondly, the doctors who gave their testimony estimated the disability as a neurological disability with no mention whatsoever of the foot element in it at all, and also the estimates of the doctors on behalf of the petitioner (the only estimates of disability in the case) were that the petitioner suffered over sixty per cent, total disability, according to Dr. Bergman, fifty per cent, total disability according to Dr. Prout, and one hundred per cent, of total disability according to Dr. Beling. And inasmuch as all the testimony in the case was apparently given with the understanding that the foot condition had been cured, and inasmuch as the neurologists testified that the petitioner was disabled, in the percentages which they variously expressed, from a neurological standpoint I do not think that the respondent’s claim at this late date is of any avail. If, as the respondent contends, the disability vanished upon the payment of the award for the foot condition, the respondent had available to him the remedy provided by the'-statute, i. e., to file a petition for a modification of the award on the ground of decreased disability. The proceeding is entirely a statutory one and must be followed strictly by the respondent, if he is to avail himself of the provisions of the act. Obviously the respondent did not so avail himself, and at this late date comes in and by means of a letter attempts to have this bureau determine that the respondent is entitled, to what amounts to a recoupment or set-off for disability payments heretofore made. I do not find that the respondent is entitled to any such credit.

I might add, that, in this aspect of the case, our courts have decided that there is no relief for the respondent as against the petitioner, especially in the case of Levins v. Fulton Specialty Co., 122 Atl. Rep. 343, where in a unanimous de- 1 cisión of the Court of Errors and Appeals of this state, it was held:

“The proceeding is a statutory one, and there is no provision in the statute for a return of any money which may have been paid, either voluntarily or involuntarily, to an injured workman. Statutory proceedings must be closely followed. The statute cannot be construed to give to a court powers other than those specifically mentioned in the act.”

There are other cases holding similarly. Therefore, I shall deny the respondent’s right to have the award of permanent disability of the foot as the result of the accident of 1923, deducted from the present award of fifty per cent, of total disability.

In accordance with my conclusion herein, and more specifically setting forth my findings as to details, I have hereto annexed my determination and made it a part hereof.

Chakles E. Cokbin,

Deputy Commissioner.


author: Pee Cueiam.

text:
    FRANK W. HENRY, PLAINTIFF, v. ALFRED EDGAR FREEMAN, DEFENDANT.
    Argued October 2, 1928
    Decided March 11, 1929.
    Before Justices Tbenchaed, Kalisch and Lloyd.
    Eor the rule, Wilfred B. Wolcott and S. Stanjer Ismrd.

      Contra, James Mercer Davis.

   Pee Cueiam.

This is a suit in attachment in an action of tort brought in the New Jersey Supreme Court by Prank W. Henry, plaintiff, against Alfred Edgar Preeman, defendant, under the Practice act, sections 84 and 85. Upon the plaintiff’s affidavit the Supreme Court commissioner made an order directing a writ of attachment to issue to the plaintiff, but did not therein provide that it should be against the goods and lands, rights and credits, moneys and effects belonging to the defendant in the state. Writs of attachment issued, and then the defendant by his counsel appeared before a Supreme Court justice for the sole purpose of moving to set aside the order for attachment made by the Supreme Court commissioner herein and to quash the writs of attachment issued in this cause upon many grounds, three of which will be mentioned.

The plaintiff proceeded under the second clause of section 84 of the Practice act of 1903, which provides as follows:

“Second. That the plaintiff has a cause of action which arose in this state, the nature and particulars of which he shall specify, and that the defendant absconds from his creditors or is not a resident of this state, and that summons cannot be served; but no attachment shall issue hereunder against the rolling stock of a common carrier of another state or against the goods of a non-resident in transit in the custody of a common carrier of this or another state; or.”

The only proof which the plaintiff produced before the Supreme Court cotnmissioner was his own affidavit. The case the plaintiff attempts to make out by the affidavit is in tort for the alienation of the affections of his wife by the defendant.

The Practice act, section 85, requires, in effect, proof to be made'by “legal evidence” of the existence of facts to show that the plaintiff has a cause of action the nature and particulars of which he shall specify. Jones v. Ellis, 5 N. J. Mis. R. 1028; Jaudel v. Schoelzke, 95 N. J. L. 171.

We believe that the affidavit is insufficient under the eases. First, we think it fails to set forth legal evidence of essential facts, being in some instances merely the conclusion of the affiant, and is conspicuously insufficient as to those matters stated to.be on “advice and belief.”

Secondly, the Supreme Court commissioner held that it was proven to his satisfaction “that said Alfred Edgar Freeman absconds from his creditors, and is not a resident of the State of New Jersey, and that summons cannot be served in this cause.” Here again we think the affidavit is insufficient in failing to set forth legal evidence that Alfred Edgar Freeman absconds from his,creditors and is not a resident of this state and that summons cannot be served.

In Hisor v. Vandiver, 83 N. J. L. 433, Mr. Justice Kalisch (at p. 440) says:

“Now, since a summons may be served personally upon, as well as at the place of abode of, a defendant, the legislative declaration that an attachment may issue where it appears that the defendant is a non-resident, and summons cannot be served, manifestly, requires that the affidavit upon which the process of attachment is applied for shall contain legal evidence of the facts, showing that the defendant is not only a non-resident of this state, but also that a summons cannot be served.”

In Goeringer v. Young, 4 N. J. Mis. R. 859; 134 Atl. Rep. 756, the affidavit relating to the non-residence of the defendants and inability to serve them with summons was as follows :

“That the said Conrad E. Goeringer is a resident of the city of Wilkes-Barre, in the State of Pennsylvania, and is doing business under the trade name of the C. F. Goeringer Construction Company, and that the C. E. Goeringer Construction Company is not a corporation organized under the laws of the State of New Jersey, but purports and assumes to be a corporation of the State of Pennsylvania, with its principal office in the City of Wilkes-Barre, in the State of Pennsylvania, and that neither of the said defendants is a resident of the State of New Jersey at this time, within the meaning of the law, and that a summons cannot be served on either of said defendants in the State of New Jersey.”

The court held in this case that the affidavit falls short of the “legal evidence” of facts as to inability to serve the defendants with a summons, and was fatally defective.

Third. The order for the writs of attachment is not the order required by the statute. It states that “a writ of attachment issue out of,the Supreme Court of the State of New Jersey, in the sum of $100,000 be awarded to the said Erank W. Henry.” In no way does the order direct that the writ of attachment be awarded against “the goods and lands, rights and credits, moneys and effects belonging to the defendant in this state,” as provided by the eighty-fifth section of the Practice act. The order does not award the writ against the goods and lands, rights and credits, moneys and effects of the defendant in this state, but simply awards a writ of attachment to Erank W. Henry.

In Hisor v. Vandiver, supra, this question was raised and as the writ of attachment in that case was quashed upon other ground the court comments on the order in this respect, as follows:

“Furthermore, it appears by the order that it awards a writ of attachment against R. M. Vandiver, whereas the act requires that it shall be awarded against the goods and chattels of the defendant.”

It follows from what has been said that the order for the attachment must be set -aside and the writs quashed, with costs.


author: Per Curiam.

text:
    JANE MEEKER, PLAINTIFF, v. PHOEBE HEDDEN JOHNSON ET AL., DEFENDANTS.
    Submitted October 13, 1928
    Decided March 11, 1929.
    Before Justices Trénchard, Kalisch and Lloyd.
    For the rule, Congleton, Stallman & Hoover.

      Contra, Sorg, Duncan & Bailey (George B. Bailey, of counsel).
   Per Curiam.

This case involves a collision between a motor car driven by defendant Phoebe Hedden Johnson and the plaintiff, who was a pedestrian on Main street in the city of East Orange.

The plaintiff had a verdict and the defendant Phoebe Hedden Johnson obtained this rule to show cause why the verdict should not be set aside.

The plaintiff’s proofs tended to show that the plaintiff, a mature woman, after doing some shopping on the north side of Main street, walked east along the Main street sidewalk to a point where Lincoln avenue intersects Main street but does not extend beyond the north side thereof. The accident occurre’d at five-thirty p. m. on November 13th, 1923. The plaintiff’s evidence tended to show that having reached the crosswalk of Main street, she looked both ways for traffic and saw no moving vehicles. She then started across the crosswalk of Main street and had got perhaps a little more than half way across when she was struck and injured by the automobile driven by the defendant.

This automobile of the defendants had been proceeding north on Lincoln avenue, and the driver wishing to make a turn west on Main street, instead of making a wide turn, made a short turn and so hit the plaintiff.

It seems to us, therefore, that if the plaintiff’s testimony is to be believed, she was justified in starting across the street at the time and in the manner that she did, and that it was open to the jury to find that the defendants’ negligence (in view of traffic regulations and plaintiff’s rights) caused the accident.

On the other hand, if defendants’ proof was to be believed, it might perhaps be said that defendant was not guilty of negligence, and that plaintiff’s contributory negligence was the cause of the injury.

In this state of the proof the only argument made before us is that the verdict was against the weight of the evidence.

Our careful examination of the evidence results in the conclusion that we cannot say that the jury’s finding with respect to the negligence of the defendant and want of contributory negligence of the plaintiff was against the weight of the evidence.

The result is that the rule to show cause will be discharged.


text:
    MAX WEISMAN, PLAINTIFF, v. JAMES BURNS, DEFENDANT.
    Decided March 18, 1929.
    Before Justices Tbenchaed, Kalisch and Lloyd.
    For the rule, Aaron Simon.

      Contra, John L. Griggs.

   Pee Cueiam.

The record of this case discloses that on July 1st, 1926, plaintiff was driving a Studebaker automobile in a northerly direction on Lexington avenue, in the city of Passaic. Eiding with the plaintiff, in the same car, was his. son, Samuel. The defendant’s servant was driving a Ford truck in the same direction that the plaintiff was proceeding, and passed plaintiff’s car at some point between Harrison street and President street.

There was testimony, on part of the plaintiff, to 'the effect that as he was driving along the highway, about four feet from the curb, at a rate of speed, estimated between fifteen and twenty miles per hour, when the defendant’s truck came along, at a speed estimated between thirty and thirty-five miles an hour, and while passing the plaintiff’s automobile, pn its left side, at that rate of speed, the truck swung over to the right, and as it did so, the rear of the truck struck the left front of the plaintiff’s automobile, damaging it and also causing the plaintiff to sustain severe injuries.

The plaintiff’s story was corroborated by three disinterested witnesses. The only witness who testified, on behalf of the defendant, was his driver, and if his story is to be believed, the plaintiff’s car was standing still, when the former passed with his truck, and there was no collision between defendant’s truck and the plaintiff’s automobile. The truck driver testified he heard no noise, felt no shock and was unaware of the fact he had come in contact with plaintiff’s car.

From a fair reading of the testimony, it seems to us that the verdict of the jury was so clearly against the weight of the evidence as to indicate partiality, prejudice, passion or mistake. The verdict is set aside.

Plaintiff’s rule is made absolute.


author: Pee Cueiah.

text:
    FRANK D. CLARK AND EDNA A. CLARK, PLAINTIFFS, v. PETER CHAISSON, DEFENDANT.
    Decided March 18, 1929.
    Before Justices Tbenchaed, Kalisch and Lloyd.
    For the rule, Schneider & Schneider (William T. Braun, of counsel).

      Contra, Evans, Smith & Evans.

   Pee Cueiah.

Liability in this case was admitted. The only question mooted on this rule to show cause is the question of damages.

Husband and wife, in a joint action, sued to recover compensation for injuries sustained by them, respectively, resulting from a collision between the husband’s automobile, in which the wife was riding, and the automobile of the defendant. There was a verdict of $2,000 for the husband, and a verdict of $3,000 for the wife. Both of the verdicts are attacked by counsel of defendant, upon the grounds that they are excessive, contrary to the charge of the court, and contrary to law.

As to. the husband’s award for damages, there was testimony from which the jury was warranted in finding that the damage done to his automobile was between $350 and $400; that as a result of his wife’s injuries, he was required to hire a housekeeper for $15 a week for three weeks, and subsequently paid his mother-in-law $25 a week for a period of ten months in superintending and taking care of his household and attending'her daughter during her illness and incapacity to do the household work. There was testimony that he paid for doctors and hospital bills about $406, and that his expenditures, including the damage to his automobile, amounted to $1,942.75.

Qf course, the husband was also entitled to recover damages for the loss of the society of his wife, which circumstance was not referred to by the trial judge in his charge, but nevertheless, we think its omission is of no material consequence, since there is no reason why the jury could not properly have taken into consideration the fact of the loss of consortium. We think the jury, under the evidence, arrived at a just result.

As to -the injuries sustained by the female plaintiff. She suffered a fracture of the fifth rib on the left side, severe pain in the sacro-illiac joint, bruises on both knees, and on both elbows; she was bruised in and about her left eye, and sustained a nervous shock. There was testimony that she was confined to the hospital in Passaic for one week, and then removed to her home where she was confined to her bed a month and four days, and during all that time she suffered pains in her back and head continuously; that she has been compelled to wear spectacles as a result of her injuries, and has suffered from intermittent watery diarrhoea, irregular and painful menstruation and was incapacitated for a long time from performing her household duties. It has not, therefore, been made to appear to us that the award to her is excessive.

The rule to show cause is discharged, with costs.


author: Bee Cubiam.

text:
    CLARA KIEVITT, EXECUTRIX UNDER THE LAST WILL AND TESTAMENT OF JOHN DE VOGEL, DECEASED, PLAINTIFF, v. SANTO CANNATO, DEFENDANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Tebnciiaed, Kalisch: and Lloyd.
    For the rule, Feder & Rinzler.

      Contra, Aaron L. Simon.

   Bee Cubiam.

This is defendant’s rule for new trial. It is a death case in which a verdict of $1,200 was awarded to the plaintiff as executrix of John De Yogel.

The first point argued is that there should have been a non-suit on the ground that the action was brought by the plaintiff as administratrix ad prosequendum when the action should have been as executrix under the statute, and that the trial judge committed error in permitting an amendment changing the form of the action to that of executrix, the statute of limitations having intervened. We think this question in principle was ruled upon adversely to the appellant in' Wilson v. Dairymen’s League Co-operative Association, 143 Atl. Rep. 454.

It is next urged that there was error in the refusal hy the judge to strike out certain testimony given by the plaintiff as to moneys paid to her by her father, the deceased, she being a married woman. This contention is without merit.

While the damages in this case must necessarily be moderate, inasmuch as the father was seventy years of age and of limited earning capacity, we think the verdict was not excessive. Deceased was earning $30 a week with a prospect of having it increased. The plaintiff, his daughter, boarded him, did his washing and ironing and he gave her $12 to $15 a week. Twelve hundred dollars loss to her as the next of kin cannot be said to be unreasonable. The verdict was not against the weight of the evidence on liability.

The rule is discharged.


author: Pee Cubiam.

text:
    JACOB ROSENTHAL, RESPONDENT, v. JOSEPH ENGEL, APPELLANT.
    Argued October 2, 1928
    Decided March 11, 1929.
    Before Justices Tbenchakd, Kalisch and Lloyd.
    For the appellant, Cohen & Klein.

    For the respondent, David M. Litwin.

   Pee Cubiam.

This was an action in the Eirst District Court of Newark to recover on a check for $500 given to the defendant as deposit money at the execution of an agreement between the plaintiff as vendor and the defendant as purchaser for the sale of property in the city of Newark. The check was given on October 25th, 1927, and on the following day payment was stopped, defendant writing a letter stating that he could not go on with the transaction but giving no reason other than his inability to meet the payments. When the case came on for trial it was sought to show that the property was subject to encroachments of various kinds and this became an issue of fact as we think for the trial court. The case was heard by the judge without a jury, who gave judgment for the plaintiff. The defendant appeals and files twelve specifications of determinations with which he is dissatisfied in point of law, the substance of which is that the court erred for various reasons in giving judgment for the plaintiff.

The crucial point in the case was whether the evidence so clearly established the existence of the encroachments as to require a finding by the trial judge in favor of the defendant on that issue. Our reading of the testimony convinces us that it was not of a character to justify the withdrawal of the question as one of fact. A surveyor who was called by the defendant gave testimony from which it might be inferred that the encroachments existed, but his testimony was based largely on an old survey which had not been proved and was far from conclusive that said encroachment did exist.

A tenement house inspector testified that there were violations of the tenement house law in the property but there was nothing to indicate that this could not have been removed at the time fixed for settlement.

Under the circumstances we think that the question presented was one of fact, which cannot be here reviewed and that the judgment cannot consequently be disturbed.

It is, therefore, affirmed.


text:
    GEORGE HINSCH, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FRED HINSCH, DECEASED, PLAINTIFF, v. ARAKEL AMIRKANIAN AND MOONOG KASHIAN, DEFENDANTS.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    Eor the rule, Heller & Boss.

      Contra, I. Faerber Goldenhorn.

   Pee Cueiam.

This is defendants’ rule in an automobile accident case in which the action was brought to recover damages for the death of a boy nine years of age, killed by defendants’ automobile. The verdict was for $750. No complaint is made of the amount of the award, but it is contended that the evidence was insufficient to justify a verdict on the question of negligence and that the defendants’ proofs overcame the presumption of. operation arising from the ownership of the car. We think neither reason is sufficient.

The accident happened in front of a moving picture theatre in Union City. ■ The car was being driven by a man named Kashian. The proofs were that the car was proceeding just before the accident at a speed of twenty-two to twenty-five miles an hour in a crowded thoroughfare where the houses were close together; that the brakes of the car were in bad condition and that no warning was given of its approach. Of these facts there was no denial by the defendant and they were sufficient to justify an inference of negligence.

The evidence to rebut the presumption of operation was not of that satisfactory character to constitute the question one for the court rather than for the jury. Tischner v. Steinholtz, 99 N. J. L. 149. Aside from this there was evidence from which the jury could infer that the car was being used by the driver with the sanction of the defendant owner, and it was evidence of negligence to so authorize the use of the car in the crippled condition of its brakes.

The rule is discharged.


text:
    CARL LUNDKVIST, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WILLARD LUNDKVIST, DECEASED, PLAINTIFF, v. ERIE RAILROAD COMPANY, NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, AND FRANK BARTON, DEFENDANTS.
    Argued October 26, 1928
    Decided March 11, 1929.
    Before Justices Trenchard, Kaliscii and Lloyd.
    Eor the rule, Alexander Simpson.

    Contra, Hobart & Minará.

   Per Curiam.

The verdict in this case was for the defendant, and plaintiff has a rule for new trial. The reasons urged for making the Tule absolute are that the verdict is against the weight of the evidence, that the court improperly charged the jury that there was no duty on the part of the railroad company to maintain safety gates or flagman at the crossing, and that plaintiff’s right to recover rested solely on the failure to give the statutory warning of the approach of the train.

The complaint in its present form is probably insufficient to invoke the basis of liability dealt within the case of Pennsylvania Railroad Co. v. Matthews, and if that be true the learned trial judge properly limited plaintiff’s right to recover to the alleged failure to give the statutory signals, but ■without passing on this point, we think the verdict must be' set aside on the weight of evidence as to the giving of these-signals. It clearly appears that the crossing is in a closely built up section of the township of Hackensack and that it. js extremely dangerous by reason of the presence on the company’s property of a building used by the American Railway Express Company which obscures the travelers’ vision down, the railroad until almost on the tracks. ■ Moore street is a much used public highway. It was incumbent on the railroad company to comply with the statute as to crossing warnings. This required that a whistle be sounded, at intervals- or a bell of specified weight be rung at a distance beginning; three hundred yards from the crossing and continuing until, the crossing is reached. 4 Comp. Stat., § 4236.

The situation was one calling for careful compliance with, the statutory warning. As to this six witnesses for the plaintiff testified that no signals were given in the vicinity of the-crossing, and while a number of witnesses called by the defendant testified that they heard signals, the signals mentioned were too far distant from the crossing to be of value-to one approaching in an automobile. The customary warning of two long and two short blasts of the whistles, as testified to have been given, rqay or may not be a compliance with, the obligation imposed by the statute. In this day when, both train and motor vehicle approach crossings at high speed,, unless the bell or whistle is sounded as required by law until the crossing- is reached there is grave -danger that the warning-will be ineffective and fall short of accomplishing the legislative purpose. That the whistle was blown at Main street,, two hundred feet west of Moore street, as testified by several of defendants’ witnesses, it is needless to say is not compliance-with the statute.

The verdict is so clearly against the weight of the evidence-as to require re-submission of the case. If the' plaintiff desires to prove the existence of conditions created by the-company from which a duty to afford additional safeguards at the crossing existed, he should be allowed to amend the-complaint to permit such proof.

The rule for new trial is made absolute.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAM DI MARCO, PETITIONER, v. LETTIERE AND BELLEZZA COMPANY, RESPONDENT.
    For the petitioner, Alex B. Desevo.

    For the respondent, McDermott, Enright & Carpenter, by Carl 8. Kuebler.

   The petition alleged that the petitioner sustained an injury in an accident which occurred on September 30th, 1927, on Grand street, Jersey City, which accident occurred when he was lifting a concrete mixer and let it go so that it struck him on his head. It is admitted by the respondent that the petitioner sustained an accident on said date while in its employment and that the petitioner stepped to the side of the concrete mixer for a drink of water; that he did not notice the loading hopper in the air, and as he walked back to his work the hopper struck him on his head.

The respondent admits on the record in this case that the petitioner sustained an injury to his left ear which has resulted in total loss of hearing, and that the respondent agreed to pay the petitioner the amount of the informal award as made in this case, to wit, thirteen and two-seyenths weeks for temporary compensation and forty weeks for loss of hearing of the left ear.

The respondent further admits that the petitioner has a. loss of vision in the left eye equal to about five per cent., but denies that the petitioner is suffering at the present time from any other injuries as a result of said accident and claims that the scar on his head which is about ten inches long was the result of a laceration which was not deep; that there was no fracture and that there are no neurologic symptoms present.

The petitioner is satisfied with the respondent’s contention so far as the loss of hearing and the loss of vision is concerned. He claims that there is also a neurological disturbance.

I have listened to the testimony of Dr. Botti produced by the petitioner who testifies that there is evidence of neurological disturbance, and that the man is disabled to the extent of twenty-five per cent, of total disability, including everything.

I have also listened to the testimony of Dr. William J. Arlitz for the respondent, who testifies that the man’s disability in his opinion is limited to the loss of hearing and diminution of vision and slight structural changes caused by the laceraton of the scalp, and that there are no neurological symptoms, and that in his opinion twelve and one-half per cent, of total would he a liberal estimate of the petitioner’s disability.

I find that the disability of the petitioner is twelve and one-half per cent, of total which includes the loss of hearing and loss of vision.

$ $ $ $ $ $ $

Charles E. Corbin,

Deputy Commissioner.


author: Baches, V. C.

text:
    Millard F. Davis and Lillian F. Davis, complainants, v. Carl H. Koch, defendant.
    [Decided March 23d, 1929.]

      Mr. Philip Goodell, for the complainants.

      Mr. Wilbur A. Heisley, for the defendant.
   Baches, V. C.

The complainants exchanged their equity in an apartment house and paid money to boot for two bonds and mortgages. They charged the defendant with fraudulently misrepresenting them as to value of the security and the financing re-, sponsibility of one of the bondsmen, and they want the bargain undone. The mortgages have their genesis in the plans of the Public Service Corporation for a high power line across the state. The right-of-way, five hundred feet wide, runs through the mortgaged premises, two adjoining tracts near New Providence, Union county; one of thirty-one and thirty one-hundredths acres, formerly owned by the Cranes, the other eleven and eighty one-hundredths acres, by Stahl— forty-three and ten one-hundredths acres of waste lands. Early in 1926 one Kohen, with foresight, bought the tracts for $250 per acre, giving the Cranes $700 in cash and a mortgage for $6,300, and Stahl $500 in cash and a mortgage for $2,000. Within a month or two, May 28th, 1926, he conveyed to LeMoine, who gave Kohen his mortgage for $5,700, and, he says, $4,000 in cash; at the rate approximately of $400 per acre. Thrée months later, August 16th, 1926, LeMoine conveyed to Young for $6,000 in cash and Young’s mortgage for $8,650—this at $600 per acre. The $6,000 was furnished by the Public Service, and Young, a straw-man, by one Erkins, the company’s right-of-way man, a real estate operator drafted from Long Island City. The right-of-way was excepted from Young’s mortgage and released by the Cranes for $400; Stahl for $1,000 and by Kohen for $1,400; the total, $2,850, being paid out of the $6,000, i. e., the net price paid by the Public Service for its right-of-way. Young was a lather, financially irresponsible, living in poor quarters in Long Island City; a tool of Erkins. That Young was a dummy and his mortgage fictitious security and the deal a scheme of Erkins’ to promote the right-of-way is apparent. LeMoine was a willing party or dupe and Kohen, his grantor, may have been; that is surmised. Erkins, at first, took a contract from LeMoine in the name of a Miss Wilson and without ado Young was substituted. The contract price was $25,800. That was of little moment to Erkins; with Young as mortgagor. LeMoine was not concerned. The first six months interest on the LeMoine-Kohen $5,700 mortgage was paid; it was deducted from LeMoine’s $6,000 purchase price. LeMoine had been paid down money, $2,500, and the balance, $3,500, was disbursed by the Public Service, at the closing, to pay for the releases, taxes and other expenses, leaving a balance coming to LeMoine of $568.82; he was paid only $393.48; a check for the balance, $175.34, was made to Young’s order, November 25th, 1926. Young’s checks of November 26th for $147.07 and December 2d for $14 paid Kohen’s interest. Erkins adjusted. Young had no hand in it except to sign. LeMoine says someone, he don’t know who, paid him the first six months’ interest on the Young mortgage. It was surely not Young. LeMoine, knowing the mortgage to have no sales value, used it for trading. He took an apartment house in exchange from Pish, and regretted it; we are not told how Pish felt about it. Pish traded it to his cousin, Koch, the defendant, for an equity in a house. Koch at that timé said he wouldn’t touch it unless he got the one ahead, and the cousin promptly made a deal with Kohen for it. Eish assigned to Koch his $8,650 mortgage on October 18th, 1927, and Kohen, two days later, the 20th. Koch listed them for trade with the broker retained by the Davises, the complainants, to sell their property and the broker-salesman with Koch approached the Davises. The Davises did not care for second mortgages and a house in Verona was suggested as an exchange and after inspection was rejected. Then the Davises were taken to the forty-three acres and they had little appeal. They discounted Koch’s puffing the tracts to be worth $1,000 per acre, but they were impressed with Koch’s repeated representations that Young was a reliable man who owned a lot of real estate and that he paid his interest promptly and that the mortgages were all right. “O. K.” The representations as to Young were not only untruthful, but were falsely and deceitfully made. Koch denies making them, but we need only look to the deceptive covenants in his assignments to the Davises to be assured where the truth lies. In the assignments, December 8th, 1927, he covenanted that the principal of $8,650 was owing on the Young-LeMoine mortgage with interest from the last due day, August 16th, 1927, and the principal, $4,700, on the LeMoine-Kohen mortgage (it had been reduced by $1,400, the price of Kohen’s release of the right-of-way), with interest from the last due day, November 28th, 1927. The implication that the interest had been paid up was false and intended to mislead. Koch had collected none during the short time he held the mortgages and he knew his cousin, Eish, had not, for in Fish’s assignment (October, 1927) he covenanted to Koch that the principal of $8,650 “with interest from February 16th, 1927,” was due, and Kohen in his assignment to him (October 20th, 1927) covenanted that $5,700 “and interest from November 28th, 1926,” was due. These covenants refute Koch’s testimony that interest had been paid to his cousin. When the defendant made the representation as to Young’s standing he had made his own investigation of Young and knew him to be irresponsible and that he was, as well, a year in default in the Crane and Stahl interest, for shortly before he had himself paid each of them two installments then in arrears.

Now, we may pass by the puffery, that the forty-three acres were worth $1,000 per acre, as non-actionable. The Davises saw for themselves aud could judge for themselves. The extravagant commendation in this respect, however, had some influence on them and the false and deceitful representation as to Young’s financial standing and responsibility persuaded them. They refused to respond to the mortgage security, but the dazzling word picture of Young—the wealthy land owner and prompt interest paying bondsman—they believed; they were gulled. The defendant will have to return the property.


author: Ingersoll, Y. C.

text:
    Jeannette G. Schaffer, complainant, v. Realty Realization Company et al., defendants.
    [Decided March 23d, 1929.]

      Messrs. Thompson & Hanstein, for the complainant.

      Mr. Samuel P. Hagaman, for the defendant American Bank and Trust Company.
   Ingersoll, Y. C.

This is a bill to quiet title to certain premises in the bill particularly described. No defense was made as to one of the tracts. The tract in question is situate at the southeast corner of Porter and Albany avenues, in the city of Atlantic City.

The former owner, the Eealty Eealization Company, executed a mortgage to one Walter Walls, which was duly recorded in the clerk’s office of Atlantic county in book No. 139 •of mortgages, page 80, &c.

Walls executed an assignment of this mortgage to The American Bank, which assignment was duly recorded in said clerk’s office. That, although absolute upon its face said assignment was made by Walls and accepted by the bank as collateral security for a loan; that Walls is still indebted to the bank in the sum of $1,000, and that Walls is the equitable owner of all right, title and interest in said mortgage over and above the amount of the indebtedness of Walls to the bank. The name of said bank is now the American Bank and Trust •Company.

Taxes duly assessed upon said property remaining unpaid the statutory period, Lewis L. Mathis, tax collector of the city ■of Atlantic City, sold the same to one Karl Schaffer.

The question reserved for decision and upon which briefs were filed, is the sufficiency of the description of the premises in the notice served upon the bank, which notice reads as follows:

■“To American Bank of Philadelphia, Philadelphia, Pa.:
You are hereby notified that a public sale held by Lewis L. Mathis, ■collector of taxes of the city of Atlantic City, at the city hall in said city, on August 16th, 1927, under and by virtue of the provisions of an act of the legislature of the State of New Jersey entitled ‘An act for the assessment and collection of taxes,’ approved April 8th, 1903, and the several acts supplementary thereto and amendatory thereof, Karl Schaffer, of the city of Elizabeth, State of New Jersey, bought for the sum of $28.88 for unpaid taxes for the year 1915 a certain tract and parcel of land assessed in the name of Realty Realization Company and described as follows: Block 92, lot 1, Chelsea Heights. And you are hereby notified that you have or appear to have an interest or estate in said land and real estate and a right to redeem the same, and that unless said land or real estate be redeemed within two years after the said sale, if this notice be served upon you more than sixty days before the expiration of said time or if not served until the expiration of said two years, then within sixty days after the service of this notice your right of redemption will “be barred.”

This land was assessed and described in the tax sale as block 92, lot 1, size of lot 25x105 feet as designated on the official map and duplicates as used by the assessors of the city of Atlantic City.

The notice specified that the tax was held by the collector’ of taxes of the city of Atlantic City, that the taxes were assessed in the name of Realty Realization Company and were described as block 92, lot 1, Chelsea Heights.

This notice fulfills all the demands of the statute.

Simonton’s Tax Sales in New Jersey (2d ed.), p. 101, says;-

“There does not seem to be the same necessity, however, for such precise particularity in the description of the land, as is required in the ease of the certificate or in prior proceedings, and mere inaccuracies in this respect * * * or other minor defects of this-character, not operating to the prejudice of the parties served, it is held, will not be fatal,” and cites Welles v. Schaffer, 98 N. J. Eq. 31. He proceeds, “but any errors or false statements in the notice, although of unnecessary matters, which tend to contradict it and mislead the redemptioner, will render it ineffectual.”

This was the situation in Welles v. Schaffer, supra, where the notice called for the redemption of lots 1, 2, 3, 4, 5 and 6, which it should have been for parts of these lots. ’This was held fatal.

The notice to the redemptioner contained all requisites and was sufficient.

A decree -will be advised accordingly.


author: Pee Cubiaji.

text:
    CHARLES NEUSS, TRADING AS M. NEUSS & SONS, PLAINTIFF-APPELLANT, v. VAILSBURG AMUSEMENT COMPANY, INCORPORATED, A CORPORATION, DEFENDANT-REPONDENT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Tbenchabd, Kaliscit and Lloyd.
    Eor the appellant, Joseph SussTcind.

    Eor the respondent, Richard J. FUzmaurice.

   Pee Cubiaji.

Plaintiff appeals from a judgment rendered against him in the First District Court of Newark. The action was to recover on an alleged contract for the sale of floor coverings for the defendant’s theatre, and it appears from the state of the ■case as found by the presiding judge that the plaintiff furnished to the defendant an estimate of $715 which the defendant accepted with this qualification: “Please do not proceed with this work until you hear from me.” Plaintiff then purchased material to make up the order. Defendant, however, never directed the order to be made up and the carpet was never made. Plaintiff proved the profit that he would have made and that he could not sell the material that he had bought to make up the carpet. The judge then states: “In my opinion, under the form of the acceptance of the estimate, either party was at liberty to withdraw from the contract,” and gave judgment for the defendant.

It is claimed that this was error. The proofs in the ease' are too meagre to justify this court in holding that the judgment so rendered was error. The estimate given by the plaintiff to defendant is not printed nor are its terms set forth in substance other than the price. Whether, therefore, the defendant was within its rights in failing to direct the plaintiff to make up the carpet cannot be determined. It was incumbent on the plaintiff to show that the contract, whatever it was, was violated. This he did not do.

The judgment is affirmed.


text:
    WILLIAM HOPPER, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Tkenchakd, Kalisch and Lloyd.
    Eor the rule, Bourgeois & Coulomb.

    Contra, Albert B. Woodruff.

   Pee Cueiam.

This is defendant’s rule for new trial in an action for damages arising out of a grade crossing accident, and the reasons for making the rule absolute are that the verdict was against the weight of the evidence as to negligence of the defendant and as to the contributory negligence of the plaintiff himself.

A collision occurred at what was called the Ninth street crossing of the defendant’s railroad, near Ilammonton. There are two tracks and plaintiff was struck as he attempted to cross from the west side to the east side by a southbound train on the near track. He received personal injuries and his automobile was damaged.

The negligence alleged in the defendant was failure to give the statutory signal by bell or whistle; the crossing, though a public one, being unprotected otherwise. The accident happened about six-thirty o’clock in the evening when it was about dusk. There was a low place in which the view of the train was at the time obscured by fog or mist. Plaintiff testified that as he approached the crossing he could see no train and that no signal was given by those operating the locomotive. His testimony was corroborated by that of a young woman whom he had just taken to her home, several hundred feet to the west of the railroad right-of-way, and by this young woman’s mother. Similar evidence was given by a man named Hoover who was working in his chicken house one hundred and thirty feet from the crossing. There was also some corroboration from a woman named McGrath. Against this the defendant called the train crew, a flagman who happened to be on the train and two passengers, whose testimony, if believed, established that the train signals were given.

In this situation we think we cannot say that the verdict was so clearly against the weight of the evidence as to imply that the verdict was the result of improper motive in the jury.

The rule is discharged.


author: Pee Ctjeiam.

text:
    ROBERT BOZZA, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF PERTH AMBOY, RESPONDENT.
    Decided March 18, 1929.

      Before Justices Teenchaed, Kaliscii and Lloyd.
    Por the prosecutor, Thomas Brown.

    Por the respondent, Harry 8. Medinets.

   Pee Ctjeiam.

There was a rule to show cause in the firs! instance,' why a writ of certiorari should not be allowed for a review of an ordinance passed by the board of commissioners of the city of Perth Amboy, on the 19th day of September, 1928, which rule to show cause, by stipulation of the attorneys of the respective parties, and with the permission of the court, was to be heard and. considered on its merits as if the writ of certiorari had been allowed.

The ordinance, the validity of which is challenged by the prosecutor, is entitled “An ordinance to prohibit the erection, construction or maintenance of any barber pole, or any apparatus for the furnishing of air or water and oil, or gasoline pumps, or other apparatus for the supplying of oil or gasoline or similar substance over, in, and upon the surface of the sidewalks, streets and highways of this city.”

Section 2 provides for a penalty of $10 for the first violation, and $25 for each successive violation.

The facts, pertinent to the determination of the question raised on behalf of the prosecutor, are set forth in his affidavit, and which facts therein stated, are, in substance, that the prosecutor is the owner of premises Nos. 81-83 Broad street, in the city of Perth Amboy, which is a plot of land fifty feet front on Broad street, and having a depth of a hundred feet; that the said premises has a building erected upon it, used as an automobile accessory store, and also a filling station in front of said store; that there is constructed in front of said premises, and on the sidewalk, three gasoline filling pumps, and also two air hose for the supply of air to automobile tires; that the gasoline tanks and air hose have been in front of said building for a period of six years, and were installed there upon the completion of said building; that the prosecutor had permits from the city of Perth Amboy allowing him to operate a gasoline filling station, &c.

The two grounds upon which the prosecutor relies for setting aside the ordinance, in question, are (1) that the ordinance deprives the prosecutor of the lawful use of his property, and the approaches thereto. (2) that the penalty provided is vague, uncertain, and unreasonable and beyond the limitations imposed by statute.

We think that neither of the propositions advanced under the facts of the case, is sound. We have not been referred to any law or decision which invests a municipality with the power to deprive the public of the free and safe use of the sidewalks of the municipality.

Article 22, section 1-A, of the Home Rule act (Pamph. L. 1917, p. 404), invests the board of commissioners with the power to pass ordinance that relate to the boundary of all streets, avenues, highways, alleys and public places in the municipality, and to prevent and remove all encroachments, obstructions and encumbrances in, over or upon any such street, avenue, highway, plane, alley and public place.

This court in Silvester v. Mayor and Council of the Borough of Princeton, 5 N. J. Adv. R. 1801, says: “An abutting owner is not entitled, as a matter of right, to permit to erect a gasoline pump and tank in a public street. Such a permit ‘when granted’ involves an encroachment upon the public street, and is in derogation of the common right of the public to use the street. If it be assumed that the power to grant such a permit has been conferred upon the municipal authorities, it clearly is a delegated power which should be exercised with care as to when and where such permits are granted. By its very nature it implies discretion in the granting authority, for certainly it cannot be that the grant of a permit to obstruct permanently a public highway is a purely ministerial function.”

It seems, therefore, that even if the municipality had the discretionary power to grant a permit for the erection of a gasoline station, on the public sidewalk, it is invested with the power, under the statute, to cause the same to be removed, when in the judgment of the commissioners such stations obstruct the public highway, or cause the same to become unsafe to public travel.

As to the second point, urged for setting aside the ordinance, upon the ground that the penalty provided is vague, uncertain, unreasonable, and beyond the limitation of the statute, we find to be wholly without merit.

The writ is dismissed, with costs.


text:
    MAZIE B. RIGG, PLAINTIFF, v. LE ROY LEWIS, DEFENDANT.
    Decided March 18, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Eor the rule, Cole & Cole.

      Contra, Thompson & Hanstein.

   Pee Cubiam.

There was a verdict for the plaintiff in the Atlantic Circuit against the defendant for $31,230.48.

In the state of the case twelve reasons are presented by the defendant, why the verdict should be set aside and a new trial granted. Counsel of defendant in their brief make this statement: “Plaintiff was injured by being struck by an automobile driven by the defendant. The accident occurred in the vicinity of the intersection of Morris and Atlantic avenues, Atlantic City, New Jersey. She was standing in the street waiting for a trolley car going west toward Longport, in which direction defendant was driving. The jury resolved the question of defendant’s negligence and plaintiff’s contributory negligence adversely to the claim of the defendant. While we believe and contend the verdict upon both phases is wrong, we are satisfied it cannot be disturbed as being against the weight of the evidence under the standard set by this court.”

The first point made in the brief of defendant is, that the verdict is excessive. We do not think it is. Taking into consideration that the plaintiff was fifty years of age, and was in good bodily health preceding the time she sustained her injuries, which caused her to become a physical wreck, and entailed upon her large percuniary losses, and the incurring of heavy medical expenses, and the mental agony and physical pain which she suffered, and still suffers from the injuries inflicted upon her more than two years ago,-and that she is left with the shortening of one leg, and suffers other inconveniences, we cannot say that the ampunt of the verdict is so excessive as to indicate that it was the result of partiality, prejudice, passion or mistake.

The second point argued in defendant’s brief is, that there was error in permitting evidence touching the existence of an alleged safety zone. We do not find anything in the reasons presented by the defendant for a new trial, which recites any testimony of any witness relating to the existence of alleged safety zones. The same legal rules, which apply to assignments of errors, to the effect that they must point out specifically the error or errors relied on, apply to reasons presented on rules to show cause why a new trial should not be granted, because of the commission of errors specifically pointed out.

We think, however, that testimony tending to show that there was a safety zone in the public highway, and that the plaintiff stood within the safety zone, at the time she was struck, by the automobile of the defendant, was competent testimony.

The third point urged to set aside the verdict is, that it was error to refuse to charge, that “the defendant cannot be charged with negligence in not seeing the plaintiff if his view of her was obstructed by the preceding car.”

The trial judge properly refused -to charge this request. It is a startling proposition that if the view of the driver of a vehicle is obstructed by a preceding vehicle, he may go blindly ahead, regardless of consequences. If the defendant’s view was obstructed by a preceding car, it was his duty to put his car in check, or stop it altogether until the obstruction was removed.

The fourth point argued in defendant’s brief is that it was error for the trial judge to refuse to charge the following: “In this case the jury cannot find the plaintiff, as a pedestrian, had the right of way.” This request was properly refused. There was nothing in the facts of the case which involved a question of the right-of-way of either party. The plaintiff was-standing within a safety zone, and the defendant, according to the testimony, recklessly ran into her.

The rule to show cause is discharged, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE WHITTICK AND LOUIS SCOTT, PLAINTIFFS IN ERROR.
    Decided March 18, 1929.
    Before Justices Trenchard, Kaltsch and Lloyd.
    For the plaintiff in error, Robert Peacock.

    For the state, George M. Hillman, prosecutor of the pleas.
   Per Curiam.

This case evidently was intended to come before us for review on strict writ of error, and bills of exceptions. The record is in a very imperfect shape. If is not only very informal, but confusing. In view of the fact that it is a criminal case on appeal, we have considered the alleged errors upon which the plaintiff in error relies for a reversal of the judgment.

The plaintiff in error was jointly indicted with George Whittick, by a Burlington county grand jury, with the crime of breaking and entering, on March 3d, 1928, into the drug store of Edward T. Hee, and stealing certain property of Edward T. Hee, &c.

Both Scott and Whittick were convicted, and Scott appeals from the judgment pronounced upon him.

There are nine assignments of error. The first three of the assignments are practically aimed at the same purpose as expressed in the third assignment, which latter is, that the verdict is contrary to the weight of the evidence.

Taking up this assertion first, we find it to be unsupported by an examination of the testimony, which, if believed by the jury, warranted it to find that the plaintiff in error was guilty of the crime charged against him in the indictment.

The case against both of the defendants below was based upon circumstantial evidence. Both Scott and Whittick were seen together on the night of March 2d, 1928, near the drugstore, which was entered, and from which some of its contents were stolen. There was proof that the drug-store was closed near midnight of March 2d, and during the hours which elapsed between the closing time- and the return of the proprietor on the following morning, the store had been entered, and some of its contents stolen. Entrance to the store was effected by means of breaking a window.

There was also proof tending to show that both Scott and Whittick were seen riding together in a Studebaker automobile on March 3d, which automobile had been stolen, and it appears, was put into a garage in Camden.

The police found the automobile in which Scott add Whit-tick had been seen riding, two days before, and found therein a cigarette holder, flashlight and some beads. The cigarette holder was identified as part of the property which had been stolen from the drug-store.

The plaintiff in error denied the charge made against him, and relied upon an alibi as his defense.

The plaintiff in error did not take the witness stand, to support his alibi. Although there was testimony tending to show that he was seen with Whittick, in the stolen automobile, which testimony, if untrue, he could have denied, and could have given an account of his whereabouts on the night and morning in question, he apparently was content to have his whereabouts established by witnesses who were not in a position to account with the same degree of knowledge and accuracy as was the plaintiff in error, of his doings and whereabouts at the times in question.

The case was a typical one for a jury to decide. We cannot say from a reading of the testimony that the verdict of the jury was the result of prejudice, passion, partiality or mistake.

The fourth assignment of error is directed against the judge’s charge. There was no general exception taken to the charge -as counsel might have done under the statute. But even then he would be obligated to point out the specific error relied on in his assignment of error. The exception taken by counsel of the plaintiff in error is as follows: “I desire an exception to your honor’s charge in refusing to charge as requested.” This exception is too broad and too general.

However, an examination of the court’s charge discloses that the trial judge substantially charged the request submitted to him, by counsel of plaintiff in error, to be charged, except the seventh request, and this request the court was under no legal duty to charge, since it was a presumption of conditions of fact postulated by defendant’s counsel, which conditions of fact did not include all the circumstances which should influence the conclusion of the jury. Consolidated Traction Co. v. John B. Chenowith, 61 N. J. L. 554.

The judgment is affirmed.


text:
    JOSEPH NEVIS, PLAINTIFF, v. PERTH AMBOY AUTO WRECKING COMPANY AND SAMUEL FELDMAN, DEFENDANTS.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices Tkenchard, Kaliscii and Lloyd.
    Eor the rule, Couli, Salz & Tomlinson.

      Contra, John E. Toolan.

   Pee Cubiam.

This is defendants’ rule to show cause why a verdict in favor of the plaintiff should not be set aside. The case was tried at the Middlesex Circuit and resulted in a verdict for the plaintiff and against both defendants for $12,500.

Both defendants attack the verdict on this rule, the only ground being that the verdict is clearly contrary to the weight of the evidence, both with respect to the negligence of the defendant and with respect to plaintiff’s contributory negligence.

The plaintiff was riding his motorcycle in a southerly direction along his right hand side of Amboy avenue in Perth Amboy. The defendant Perth Amboy Auto Wrecking Company’s automobile was being operated in a northerly direction along the same street, being driven by the defendant Eeldman. The proofs-tended to show, as we think, that Eeldman, after leaving the place where he had parked for a moment, cut across the highway to-his left immediately in front of plaintiff’s motorcjrcle, intending to go into his garage which was on the other side of the street, and that he did this without giving any signal of such intention whatsoever. The collision took place, according to plaintiff’s witnesses, about three or four feet from the westerly curb, or the curb to the right of the plaintiff as he was proceeding, the left front of defendant’s car striking plaintiff’s left leg. We think, after considering the testimony produced by the defendant, more or less contradictory of that which we have recited, that the jury was justified in finding that the accident was caused by the negligence of the defendant driver, and that the plaintiff was not guilty of contributory negligence. Also we are unable to say that the verdict in either respect is against the weight of the evidence.

The rule to show cause will be discharged.


text:
    MAUD ANDERSON, PLAINTIFF-RESPONDENT, v. ATLANTIC CITY GAS COMPANY, DEFENDANT-APPELLANT.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices, Teen chard, Kalisch and Lloyd.
    For the appellant, Thompson & Hanstein.

    For the respondent, Carlton Godfrey and William I. Garrison.

   Per Curiam.

This is an appeal from a judgment in favor of plaintiff in the Atlantic Common Pleas, the judgment being founded upon the verdict of a jury.

A rule to show cause was granted by the judge, the point being that the verdict was excessive, and he dismissed the rule. We now have the case on appeal of the defendant.

The situation was this: The plaintiff was employed as a waitress at a restaurant on St. James Place, Atlantic City, and had been employed at the same restaurant for two years. On July 11th, 1927, at ten-thirty A. M., when she went to work, she discovered that illuminating gas was ecsaping in the street in front of her place of employment. She entered the restaurant, and about one-thirty p. m., she was taken sick and vomited. She went home and returned to the restaurant about four o’clock. The street was still filled with the fumes of illuminating gas and she worked until seven p. m., when she was compelled to go home because of headache and vomiting. The foregoing matters of fact appearing at the trial seem not to be in dispute. We believe that the evidence justified the inference that the escaping gas entered the restaurant and was the proximate cause of the plaintiff’s sickness.

The plaintiff’s claim was that as a result of the inhalation of the monoxide gas she was injured and suffered for a long time and still suffered at the time of the trial, and this suit was brought to recover the consequent damages.

It is alleged that the court erred in the admission of testimony. The question complained of is as follows:

“Now, doctor, assuming that the plaintiff had a dormant disease like tuberculosis or weak heart, what effect would the inhalation of monoxide have on that condition?”

The witness was the plaintiff’s doctor and was admittedly an expert, and the question was proper in view of some evidence of the development of a tubercular condition and a weak heart.

Other testimony objected to was stricken out, and if erroneous, in the circumstances constituted no reason for reversal.

The motions to nonsuit and to direct a verdict were properly denied. The testimony tended to show that the street was full of gas; that it came from a.pipe in the street over which the defendant had control; that at ten o’clock in the morning the company was notified of the dangerous condition that existed at that point; that the gas company failed to pay any attention to the complaint until it was notified the second time and that was after the plaintiff and other nearby persons had been affected or overcome by the gas; that sometime in the evening the company sent a number of its employes to investigate and they found a leak in the pipe and stopped the flow of gas; that the next day the employes of the defendant returned and removed a rusty pipe which had rusted and had holes in it.

It is alleged, that the court erred in charging the jury as follows:

“Gas being an extraordinarily dangerous element, an extraordinarily high degree of care and skill is exacted, and the rule of ordinary care with respect to its transmission is adjusted, in view of its known dangers and probable entailment, by a standard of care proportionate to the probable dangers.”

The complaint respecting this phase of the charge is the assumption by the judge that “gas is an extraordinarily dangerous element.” We think the assumption was correct. It is certainly, in some circumstances and under certain conditions, an extraordinarily dangerous element, and such circumstances and conditions, the evidence tends to show were present in the ease at bar.

It is also said that the court erred in charging the jury as follows:

“Corporations manufacturing and distributing gas are held to a high degree of care in the maintenance of their pipes and are required to exercise every reasonable precaution suggested by known dangers. Where the existence of a leak is known, means should be taken at once to avoid injury, and where it should have been known that a leak was likely to occur because of defective conditions of the pipes, negligence may be imputed.”

The complaint as to this is, first, the expression “high degree of care,” the argument being that there may be circumstances in which a high degree of care in the maintenance of pipes might not be necessary. But if that be so, we think that the admitted circumstances of the present case of the proximity of many human beings in the immediate vicinity of these pipes did call for a high degree of care. The second complaint of this particular part of the charge is the use of the words “at once.” What the judge meant by “at once” was made perfectly plain to the jury by his subsequent instruction that “if the defendant turned off the gas with reasonable promptness after being advised of escaping gas, it is not liable.” To a like effect are other expressions in the charge.

It is also alleged that the court erred in charging the jury as follows:

“There can be no liability on the part of this defendant company for any leak that may have occurred in the pipes leading from the curb to the house unless the defendant company has been notified that such a leak existed and were ordered to turn off the gas or make the repairs and took the order and undertook to turn off the gas or make the repairs and delayed turning off the gas or making the repairs.”

Here the complaint is as to the use of the word “delayed” without modification. But as we have already indicated, we think that there was a modification of it in such form that the jury could not have been misled as to the true rule.

It is also said that the trial judge erred in charging the jury as follows:

“In other words, the gas pipes in the streets are under the direct control of the gas company, and the gas company is responsible for any negligence in not taking the ordinary and proper method to prevent anyone from being injured by reason of gas escaping in the streets.”

We find no fault with that instruction.

It is also said that the judge erred in charging as follows:

“But the gas company can only be liable for gas escaping through pipes that are on the premises of the owner of the house and under his control when the gas company has been notified of the leak and been requested to come and repair the leak and has negligently delayed in making the repairs or turning off the gas.”

We find no fault with that instruction.

It is also alleged that the court erred in charging the jury as follows:'

■ “In this ease, it is an important case because if the plaintiff is entitled to recover and if the injuries complained of by her and enumerated in this case are the result of her having inhaled the gas of the defendant company, then, of course, the plaintiff is entitled to substantial damages.”

It is argued that this charge was erroneous because it is said that there was evidence that the plaintiff did not suffer any injury due to gas poisoning. But that argument ignores the fact that the instruction was by its terms contingent upon a finding that she did.

It is also alleged that the court erred in charging the jury as follows:

“If you decide that the defendant company was negligent, and if it appears from the entire case that the plaintiff was free from any contributory negligence on her part and that the negligence of the company is responsible for the condition of the woman to-day, then, of course, you go to the question of what damage she should recover.”

We see no error in that instruction.

We believe that the foregoing observations dispose of every allegation reason for reversal which requires comment.

The judgment will be affirmed, with costs.