text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DANIEL J. CHAPMAN, PETITIONER, v. VALLEY DINER, RESPONDENT.

      Por the petitioner, Nathan Rabinowitz.

    Por the respondent, William, P. Braun.

   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

1. That this is a proceeding brought by Daniel Chapman and against Yalley Diner, under an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto; that a petition was filed December 11th, 1946, with the Workmen’s Compensation Bureau; that copy of said petition was served on the respondent; that answer was filed with the said Bureau on January 10th, 1947; that due notice of hearing of said petition and answer was given to the respondent; that trial was had; that said trial was held in the presence of Nathan Rabinowitz, attorney for petitioner, and William P. Braun, attorney for respondent.

Two grounds are urged by the respondent as a defense to the above entitled claim petition. The first ground advanced by the respondent, is that petition was prematurely filed. I am of the opinion that this defense is without merit for the reason that it was not made at the time of filing of petition, but long after such time and after the matter had proceeded to trial, and long after the petitioner had ceased his medical treatment and when whatever permanent effects resulting from the alleged injury were manifest and readily ascertainable. The second ground urged by the respondent for dismissal of the above claim petition is that the petitioner has failed to prove the difference between an injury and a compensable accident.

The following facts are shown by the evidence:

On November 12 th, 1946, the petitioner was employed by the respondent as a night manager of a lunch wagon and diner. His duties consisted of cooking, short order cooking, and waiting on customers; his hours of employment began at four o’clock in the afternoon and lasted until two o’clock in the morning. He had been performing this work for the respondent for a period of six years, receiving a wage of $50 per week.

On the evening of the day in question, the regular dish washer, one Charles Gibbs, did not report to ■ work because of illness, and the duties usually assumed by Gibbs, that of dish washing, were taken over largely by the petitioner; on various occasions on the evening of the day in question during his tour of employment, it was necessary that the petitioner take a tray or a metal basket containing dishes from the counter of the lunch wagon proper and carry the tray a distance of twenty or thirty feet to a backroom or a kitchen where a dish washing machine was situated. It appears that this dish washing machine is worked by electric motor; the top part or lid, which originally operated automatically, was in disrepair; and that in order to use the dish washer, a makeshift block and fall hoist was constructed by the em-' ployer, making it necessary to pull a rope which would, in turn, lift up this iron metal lid on top of the dish washing machine.

How, there has been testimony that the lid, or top of the machine, weighed approximately 200 pounds, but I am satisfied—there have been pictures or photographs introduced in evidence showing this dish washer and makeshift block and fall hoist—that the pound pressure required of petitioner in raising the lid was much less than 200 pounds by the operation of the block and fall. By the elementary laws of physics, when weight is raised by means of a block and fall, the pound pressure is considerably less than where one lifts the same weight from the floor with both hands. So I am satisfied there was no 200 pound exertion expended by petitioner in operating the hoist but much less.

There was an engineer produced on behalf of the respondent, Ealph E. Hobbis, who testified that the pressure pull would vary, as I recall his testimony, between eighteen and twenty-five pounds in operating this particular hoist.

The petitioner testified that he had performed several of these operations of carrying the dishes to the dish washing machine during the course of his nightly work, and that about nine or nine-thirty in the evening of the day in question, he was pulling the rope to raise up the metal top of the dish washer to slide in some soiled dishes when he was seized with a severe attack of pain across his anterior chest. Petitioner described the pain as “knife-like” in character. He further testified that the pain lasted all night and that he had a heavy tight feeling. When he would breathe “I felt like I was getting a cold.” He further testified that he began to sweat, and that a pain was present in both shoulders radiating down to his fingers; the testimony further shows that the petitioner still had several hours to go, and that he continued to work, but under difficulty for the balance of his evening’s tour of employment. He testified that at times he was so weak that he laid with his head resting on his arms on a counter. He further testified that he had difficulty in dosing up the establishment and getting the place in order, ■and that instead of closing at two A. m. he closed at four a. 11., two hours beyond the regular closing time. He further testified he then drove home in his car, but that he “felt terrible,” holding one hand on his heart and driving with the other hand. Upon arrival at his home, he was barely able to get into his house and fell across the bed with his clothes on. His pain was bad and his breathing was difficult, and his wife helped him to undress and get into his bed. He was unable to sleep all that night and slept on and off because of pain. At six A. m., Dr. John Cremens was summoned and the petitioner was referred to Dr. James E. Phelps for an electrocardiogram, and thereafter Dr. Cremens treated him several weeks at home for a coronary condition, and then later at his office. The petitioner testified that he never fully recovered from the effects of this occurrence and that he has never returned to work, and that he is unable, at the present time, to work.

There has been much controversy of late arising in heart cases, involving coronary lesions, as to whether or not, in order to prove a compensable accident, it must be shown that the act of exertion was unusual, something out of the ordinary; and I refer now to a recent Court of Errors and Appeals case of Lohndorf v. Peper Bros. Paint Co., 52 Atl. Rep. (2d) 61. In a well reasoned opinion, Mr. Justice Heher, who concurred in the result, reviewed the many cases dealing with heart conditions due to strain, both here and abroad, and this is what he says, referred to a wealth of English cases (at p. 62). That opinion reads in part as follows:

“An accident”—and now he is referring to these old English cases—“An accident may be ‘something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel.’ The term is to be taken in its ordinary and popular sense. In considering whether it was an accident which arose out of the workmen’s employment, he deemed it”—of course, referring to the eminent English jurist—“he deemed it of no importance that ‘there was no strain or. exertion out of the ordinary.’ An accident, he said, ‘arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree or exertion or the condition of health.’ He found the test to be whether the work, ‘as a matter of substance, contributed to the accident.’ He continued: Did the workman die from the disease alone or from the disease and employment taken together?”

So, in the present case there is no point to the respondent’s contention of no accident because Chapman had previously operated the hoist without difficulty or ill effects.

From the evidence there appears an unbroken chain of events all of which establish a cause and effect between the act of exertion by the pulling of the rope of the dish washing machine on the evening of the day in question and his present condition. The employer of the petitioner testified that the latter had been a good worker and that he had worked for him for six years, having had very little time off by reason of injury or illness.

This case is not easy of solution because eminent doctors, who stand high in their profession and for whose opinions I have the greatest respect, are in such sharp conflict on the question of causal. relationship'. It is very difficult to decide because of this reason, since there appears the most unusual diversion of medical opinion in this case.

It seems to me that a case of this, kind should not be decided merely upon certain laboratory tests such as X-rays, electrocardiograms or encephlograms. Those tests are used largely to confirm, and when they are, positive they are diagnostic and corroborative, but when they are negative they do not rule out entirely the existence or non-existence of a condition. Victims in the old days with coronary conditions suffered disability and died, and while there were no such things as ekgs, coronary lesions were diagnosed then upon clinical findings alone.

I am satisfied from the great weight of medical opinion that the ekgs in this case are negative, but what does that mean? Does it mean that he has failed in his proofs because electrocardiograms disclose negative and not positive findings? I don’t think so. The essential factor, in my opinion, is the clinical picture which is far more important than the ekgs.

It seems to me that the petitioner has shown that on ^November 12th, 1946, he did suffer an accident which transformed him from a working unit to a condition of semi-invalidism. There is a lack of harmony on the part of the several medical experts as to the nature of the coronary attack, that is as to whether or not the petitioner suffered an angina of effort, a coronary spasm, or a coronary sclerosis. It was further in dispute as to whether perhaps the petitioner had a coronary insufficiency, a coronary thrombosis, or a coronary occlusion, in other words, six different medical terminologies. As a matter of fact, in my opinion, it makes little or no difference as to the character of the initial attack so long as it sets in motion certain coronary changes resulting in permanent myocardial damage.

I believe that the most important factor in this case is the history and clinical findings prior to the evening of the day in question. The petitioner was a working unit and a manager of a diner. To-day he is an invalid from no apparent cause other than the accident.

The respondent’s medical experts, Dr. James C. Kaufman, and Dr. James E. Phelps offered’ no explanation for this marked change in the petitioner. On the other hand, the testimony of the treating physician, Dr. John Cremens, is convincing. While it is true that Dr. Cremens is not a specialist in cardiac diseases, there is no statutory rule that a heart lesion must be treated by a heart specialist. Dr. Cremens was engaged to treat the petitioner because he was the family physician and, in fact, has treated many cases of coronary occlusion. He diagnosed the petitioner’s condition as one of coronary occlusion with infarction. Dr. Cremens testified he was summoned at six o’clock in the morning on November 13th, 1946, and that the petitioner still presented symptoms of some coronary condition. Dr. Cremens treated the petitioner at his home where the latter was in bed most of the time between November 13th, 1946, and January 22d, 1947, and thereafter treated Mm at his office. Both Dr. Cremens and Dr. Julian Cohen, a heart specialist, produced by the petitioner, were of the opinion that the petitioner suffered a heart lesion as a result of his unusual effort during the evening of November 12th, 1946. If this petitioner had been at rest, or had been sitting down doing nothing on the evening of the day in question, and he suddenly had developed a coronary episode, there would be no doubt in my mind that the disease followed a natural cause, but the petitioner under the undisputed testimony, was doing something. He was performing a physical act. He was doing something at the time that required physical exertion. It is true, it might not have been a great exertion, but it was great enough to be the cause of a heart lesion, which he suffered and which precipitated that lesion into motion. Dr. Phelps, one of the respondent’s experts, on cross-examination, admitted that if an angina of effort lasts very long, such an attack may cause coronary insufficiency followed by damage of the heart muscle. Under the evidence in this case, this was a pretty long angina of effort and assuming that such was the character of the attack, this attack has had no end and on that very admission, there might well be a cause of the factor in setting up and producing the petitioner’s disability.

The respondent raised the question of notice of the injury. Our statute does not prescribe notice of an accident. The claim petition for compensation was filed within thirty days of the accident, and hence such notice of injury was had by the respondent within the statutory time limit. T find from this point that the wife of the respondent admitted that she learned of the petitioner’s having suffered a heart condition from her husband on November 13th, 1946, on the day following the accident.

In passing upon another question as to whether Dr. Cremens’ treatment was authorized, I find that our statute very wisely provides that the employer shall be liable for emergency treatment. There is no doubt in my mind that this was a ease of emergency treatment, and I so find. Under the circumstances I hold that the petitioner was relieved from seeking authorization from the respondent to engage any particular physician.

While Dr. Phelps and Dr. Kaufman, appearing for the respondent, diagnosed petitioner’s condition as one of angina pectoris, unrelated to his employment, neither of these experts expressed any opinion as to the petitioner’s permanent disability, regardless of the cause.

On the other hand, Dr. Cremens, the attending physician, testified that in his opinion a causal relationship existed between the effort of pulling the lid of the dish washer and the symptomatology which followed. Dr. Cremens believed that the petitioner’s disability was permanent in nature and evaluated the same as between 70 and 75% of total. He further testified that his bill for medical services rendered the petitioner was in the amount of $60. Dr. Samuel Kleiner, testifying on behalf of the petitioner, stated he believed the petitioner suffered a coronary infarction, and subsequent damage to the heart, Dr. Julian Cohen, a heart specialist, also testifying for the petitioner, was of the opinion that the petitioner had suffered a coronary occlusion. He also believed that the effort expended by the petitioner on the evening of the day in question was responsible for such coronary occlusion with myocardial infarction, and believed petitioner’s disability to be permanent, and that he was disabled to the extent of 70 to 75% of total.

After weighing all of the evidence, I believe that the petitioner is entitled to a temporary disability for a period of 10 1/7 weeks, and permanent disability equivalent to 35% of total.

It is, therefore, on this 2d day of September, 1947, ordered that judgment be entered in favor of the petitioner.

John J. Stahl,

Deputy Commissioner.


source: Caselaw Access Project

author: Leyden, 0. C. J.

license: Public Domain

text:
    MARION FALKENSTERN, PLAINTIFF, v. HERMAN KUSSY CO., A NEW JERSEY CORPORATION, DEFENDANT.
    Decided October 2, 1947.
    For the plaintiff., Schneider & Schneider.

    For the defendant, Bilder, Bilder & Kaufman.

   Leyden, 0. C. J.

This suit was instituted by the plaintiff as assignee of Fruitcrest Corporation, for a matured debt owed by the defendant to the assignor amounting to $1,412.50 for goods sold and delivered.

Defendant’s answer admits the debt but denies the validity of the assignment and “by way of counter-claim,” sets up substantially it is the assignee of two choses in action of Wallace, Burton & Davis Co., Inc., against Fruitcrest Corporation arising out of the alleged breach of an implied warranty that the merchandise sold to it by Fruitcrest was fit for human consumption, whereby it lost on the resale profits within the contemplation of the parties and other items of damage such as repayment of the resale purchase price, custom duties and freight charges. These claims amount to $2,883.06 and judgment is sought against the plaintiff assignee in that amount.

The motion is to strike the “counter-claim” upon the grounds of (1) legal insufficiency; (2) new and irrelevant issues to complaint involving unliquidated damages; (3) inconvenience of trial; (4) impropriety as a set-off to cause of action of plaintiff.

The “counter-claim” is insufficient in law in that it does not state facts constituting a cause of action against the plaintiff.

The Practice Act, R. S. 2:27-137; N. J. S. A. 2:27-137, provides that, subject to rules, a defendant may set off or counter-claim any cause of action. Supreme Court rules 65 to 68, N. J. S. A. Tit. 2, inclusive, implement the statute. Eule 67 provides: “If the amount found due on the counterclaim to the defendant exceeds the amount found due to the plaintiff, the defendant shall have judgment for the excess.” In view of the statute and the rules it seems obvious that the set-ofE or cause of action mentioned must be a cross-action against the plaintiff, or a third party arising out of the transaction complained of in the main case. The causes of action pleaded in the counter-claim may be good against the plaintiff’s assignor, Eruitcrest Corporation, but not the plaintiff. It is not alleged that plaintiff was a party to the transactions therein complained of or that she assumed the obligations of the assignor.

Plaintiff is the assignee of a matured debt. It is a liquidated claim. The causes of action pleaded in the counterclaim are for unliquidated damages. Godkin v. Bailey, 74 N. J. L. 655; 65 Atl. Rep. 1032; 9 L. R. A. (N. S.) 1134. As such they are not proper subject-matter of a set-off. R. S. 2:26-190; N. J. S. A. 2:26-190; John Wills, Inc., v. Citizens National Bank of Netcong, 125 N. J. L. 546; 16 Atl. Rep. (2d) 804; Yeskel v. Gross, 105 N. J. L. 308; 144 Atl. Rep. 312.

An assignee of a chose in action takes what the assignor had, subject to all set-offs, discounts and defenses which the debtor has, not only against the assignee but also against the assignor before notice of the assignment; R. S. 2:41-1; N. J. S. A. 2:41-1, but the assignee does not thereby, without more, assume the liabilities of the assignor. Discount connotes a set-off or reduction arising ont of the claim sued upon, and defenses imply matters in defense of that particular claim stemming from it, such as failure of consideration, payment or fraud.

The causes pleaded in the counter-claim are wholly foreign to the issues in the main case. They did not arise out of the same transaction. They are not in set-off, discount or defense of it.

The defendant is not without remedy. It may re-assign the causes of action or it may sue Fruitcrest in New York, the jurisdiction where the dispute arose.

The motion to strike the counter-claim is granted.


author: Pboctok, S. C. C.

text:
    EMMA G. WALLWORTH, PLAINTIFF, v. FRANK T. JOHNSON, DEFENDANT.
    Decided October 23, 1947.

      For the plaintiff, Grover G. Rickman.

    For the defendant, Ephraim Tomlinson, 2d.

   Pboctok, S. C. C.

This is a motion by the plaintiff to strike the answer filed by the defendant to an action in ejectment.

The answer denies plaintiff’s right to possession of the premises in question and also sets np two defenses, the first being that the controversy involved in the present action was adjudicated in the Camden City District Court wherein judgment was entered on June 26th, 1947, in favor of the defendant. The second defense is that by the terms of a lease entered into by the parties and the renewal thereof the defendant is entitled to possession until June 1st, 1948.

It appears that the plaintiff leased the premises to the defendant for a term of two years, commencing June 1st, 1944, at a yearly rental of $720 to be paid in monthly installments of $60 in advance. The lease contained the following provision :

“It is .also understood and agreed that the expiration of this lease, the party of the second part has the privilege.of renewing this lease for a period of two (2) more years, at a rental that is agreeable to both the party of the first part and the party of the second part.”

The defendant entered into possession of the premises under the terms of the lease on or about June 1st, 1944, and has continued in possession until the present time.

It will be seen that the lease (without the renewal or extension) expired May 31st, 1946. • The defendant continued to pay the rent called for under the lease to the plaintiff from that date up until June 1st, 1947. It also appears from the affidavit of the defendant that he has tendered checks on June 1st, 1947, and July 1st, 1947, to the plaintiff which is not denied.

Plaintiff moves to strike the answer as sham and also moves to strike the first and second defenses as frivolous and insufficient in law in that said defenses do not comply with rule 185 of the Supreme Court, N. J. S. A. Tit. 2.

The first defense of res judicata is frivolous and should be struck. In a landlord and tenant suit the disposition by the District Court creates no estoppel by judgment against the landlord. Sbrolla v. Hess, 133 N. J. L. 71; 42 Atl. Rep. (2d) 569. The District Court judgment is not res judicata. Van Vlaanderen Machine Co. v. Fox, 95 N. J. L. 40; 111 Atl. Rep. 687; Kietrys v. Cregar, 23 N. J. Mis. R. 273, 276; 43 Atl. Rep. (2d) 810.

The question to be decided is whether or not the plaintiff (landlord) is deemed to have assented to a renewal of the lease by reason of the defendant (tenant) holding over at the expiration of the original term and the payment by the tenant to the landlord of the rent called for under the terms of the original lease. It seems to be settled in New Jersey that where the rent and term are fixed for the renewal, in the absence of any provision of agreement specifying the manner of exercising the option of renewal by the tenant, any conduct of the tenant which reasonably apprizes the landlord of the tenant’s desire to enjoy the additional term should be regarded as fully satisfying the option to renew. Hurley-Tobin Co. v. White, 84 N. J. Eq. 60; 94 Atl. Rep. 52. An election to accept an option for an additional term was said by our Court of .Errors and Appeals to be indicated by the tenant as continuing in possession and paying the rent. Batura v. McBride, 75 N. J. L. 480; 68 Atl. Rep. 113. And in Mershon v. Williams, 62 N. J. L. 779; 42 Atl. Rep. 778, it was said:

“If no notice is stipulated for, the tenant’s mere continuance in possession and paying rent, though with no express notice of his desire for the future term, entitles and binds him thereto.”

Plaintiff in her brief relies upon the cases of City Coal Co. v. Marcus, 95 Conn. 454; 111 Atl. Rep. 857; Warthen v. Lamas (Municipal Court of Appeals of the District of Columbia), 43 Atl. Rep. (2d) 759, and Andrews v. Marshall Creamery Co., 118 Iowa 595; 92 N. W. Rep. 706.

City Coal Co. v. Marcus, supra, is not in point. There the court sustained the contention of the tenant that by the terms of the lease he was entitled to an extension.

Warthen v. Lamas, supra, and Andrews v. Marshall Creamery Co., supra, turned upon statutes which provided that a tenant holding over and paying rent should be deemed to be holding by sufferance or at will.

In the present case there was no rent fixed for the renewal. The lease provided that it may be renewed for an additional two years “at a rental that is agreeable to both the party of the first part and the party of the second part.”

In Decker v. Adams, 12 N. J. L. 99, 100, Chief Justice Ewing said:

“As a general rule, where the term is for a fixed period of time, and the period has expired, the tenancy is determined, and the landlord may immediately maintain an ejectment to recover the possession.

“When the tenant, whose term has expired by efflux of time, instead of quitting the premises, as he ought to do, remains in possession, holding over as it is called, he is a wrongdoer, and may be treated as such by the owner, his landlord. By the consent of his landlord his tenancy may be continued, and if such continuance by consent be without any fixed limit, he becomes a tenant from year to year, as it is called. This consent may be either express or implied; actual or constructive; by words or by some act recognizing or treating him as a tenant. But without a new contract, or some act on the part of the landlord from which a renewal of the contract may be implied, the person in possession continues a wrong-doer, * * (Italics supplied.)

The act of 1941, R. S. 46:8-10; N. J. S. A. 46:8-10, which modified the common law, as declared in Decker v. Adams, supra, and limited a hold over tenancy to one from month to month is not applicable to the present case, as here the parties had an “agreement to the contrary.”

Therefore, the question in any particular case will be, “What is the evidence of the landlord’s consent?” Usually it is the fact of holding over coupled with the unconditional acceptance of rent. Leonard v. Spicer Manufacturing Co., 103 N. J. L. 391; 139 Atl. Rep. 15.

It is my opinion that when the tenancy expired on May 31st, 1946, it was the right of the landlord, if the rent for the renewal was not agreeable to her, to the possession of the property, and upon the failure of the tenant to surrender the same she could regard him as a trespasser and assert rights against him as such. On the other hand, she could waive the holding over and renew the tenancy either by formal language to that effect or upon acts effecting the same result. By acceptance of the rent without objection the landlord assumed the valid holding of the tenant and extended the tenancy under the renewal provision of the lease. An agreement may be express or by implication. Dragun v. Connolly, 2 N. J. Mis. R. 727; 125 Atl. Rep. 575. In the present case it appears that an agreement to renew or extend the lease was implied from the payment of rent on the one side and acceptance by the other. The plaintiff’s conduct in accepting the rent without objection was indicative that the rent was agreeable to her. It was obviously agreeable to the defendant. The continued occupancy after the expiration of the original lease, without objection by the landlord in receiving the rent from the tenant, may be deemed to be a renewal or extension of the lease. See Cain v. Lawrence Drug Co., 235 Ky. 12; 29 S. W. Rep. (2d) 550; Mansour v. Hyman Winegarden Realty Corp., 314 Mich. 262; 22 N. W. Rep. (2d) 366; also annotation in 166 A. L. R. 1237.

Plaintiff, at the hearing of the motion, contended that if the defendant desired to exercise his option he should have given the plaintiff some form of notice. However, while the option is for the benefit of the leasee, the notice is for the benefit of the lessor and may by her be waived. Straus v. Rollins, 4 N. J. Mis. R. 631; 133 Atl. Rep. 868.

The second defense is proper and the answer does comply with Supreme Court rule 185. East Rutherford v. Sterling Paper, &c., Co., 21 N. J. Mis. R. 232, 234; 32 Atl. Rep. (2d) 855.

For the foregoing reasons the answer and second defense are allowed to stand. The first defense will be struck.


author: Elannagan, 0. P, J.

text:
    Essex County Court of Common Pleas.
    RALPH SANDERS, PETITIONER-APPELLANT, v. JARKA CORPORATION, RESPONDENT-APPELLEE.
    Decided October 16, 1947.
    Eor the petitioner-appellant, Harry Krieger.

    Eor the respondent-appellee, Rveritt Rhinehart.

   Elannagan, 0. P, J.

This is an appeal from a determination by the Workmen’s Compensation Bureau dismissing the petition of the petitioner by which he' sought compensation from the respondent, his employer, for an assault and battery by a third person, one known as “Willie.” The respondent presented no witnesses, and at the close of the petitioner’s case both sides rested on the issue of liability and submitted that issue to the court on the evidence then adduced. The court decided the case in favor of the respondent and dismissed the petition, from which determination the petitioner now appeals to this court.

Petitioner, in the performance of his duties as a truck driver for respondent, accidentally backed his truck into an army truck. Petitioner alighted from his truck and undertook, as was his duty, to obtain the license number of the driver of the army truck. The driver of the army truck was co-operative, and no difficulty occurred until a large man on the army truck, the man known as “Willie,” whose status is unexplained and, as far as the testimony shows, was merely an intermeddler, undertook to ask petitioner why he was asking for the driver’s license of the driver of the army truck when he, the petitioner, was the one who had hacked into the army truck. The petitioner replied that “it was orders.”

Thus far the petitioner acted in the discharge of the duties of his employment, and it would have been well for him if he had stopped there.

If the episode had culminated then and there in an assault by “Willie” on the petitioner, then the petitioner’s acts and words in the performance of his duties could have been said to have inspired the assault.*

Instead of stopping then and there, petitioner obtained, or there was handed to him, a stick, and he entered upon a contest with “Willie” in the exchange of abusive language, each trying to excel the other in the intensity of the sting of his insults and abuse. By no stretch of the imagination could the acts of the petitioner in this connection have been intended by the petitioner to inure to the benefit of his employer or to further the accomplishment of the employer’s instant business, to wit, the securing the army truck driver’s license or permit number.

The permit number seems never to have been secured, but its pursuit with the army truck driver put aside or forgotten by petitioner in the intensity of the verbal exchange with “Willie” until the purpose of securing it was finally abandoned at the direction of Rice, a fellow employee of the petitioner working with him on the truck, who told the petitioner to get into the truck and to “forget it.”

Petitioner yielded to this suggestion or direction and got into his truck, and the assault upon him by “Willie” immediately followed. This perhaps demonstrated petitioner’s victory or superiority in the tongue lashing art, as it was “Willie” who bolted the arena of verbal conflict and entered upon that of physical violence, thus indicating a lack of satisfaction with his success in the former field.

The exact words used in the verbal duel do not appear. Rico testified that they were “calling one another name for name * * * they were throwing pretty rough language, they were cussing out one another with names.” But the grossness and vulgarity of the exchange is indicated by the fact that when petitioner was asked on cross-examination if he would deny that he called “Willie” a “big fat-bellied son of a bitch,” he answered, “blot necessarily. I might have called him that.”

It was obviously the act of petitioner in the gratification of his own spleen which motivated retaliation by “Willie” in the form of a physical assault. This arose out of the tongue lashing contest, not out of petitioner’s employment.

The exchange of words which started with the request for information degenerated into a mere personal contest in the exchange of individual insults and abuse. It was the sharpness of petitioner’s tongue which produced the sting responded to by “Willie” with the retaliating physical assault.

It surely cannot be that a truck driver, meeting with an accident, can, after asking the opposite driver for his license, at the risk of his employer, yield to the impulses of a poor temper and enter upon an ad libitum indulgence in insult and abuse entirely beyond the purposes of the mission on which he is sent. The fact that these childish exchanges are unfortunately all too prevalent on our highways is not enough to constitute the employer an underwriter against the consequences.

The ease does not fall within the holding of Geltman v. Reliable Linen Supply Co., 128 N. J. L. 443; 25 Atl. Rep. (2d) 894. This is made clear by Mr. Justice Heher in writing the opinion of the court when he says: “Here * * * the employee was forced by the operator of the other vehicle fto drive to the side of the road and stop,’ and was immediately thereafter assaulted in resentment of the manner in which he had driven his automobile in fulfillment of the master’s service; and so his death was the consequence of * * * a risk connected with what he was obliged to do in the performace of his work.” 128 N. J. L. (at p. 448); 25 Atl. Rep. (2d) (at p. 897). (Italics supplied.)

Neither is the English case of Trim Joint District School v. Kelly [1914], A. C. 667, cited in the Geltman case, in point. There the pupils of an assistant schoolmaster entered into a conspiracy to assault him in “retaliation for unwelcome discipline” in the performance of the duties of his employment.

The assault on petitioner by "Willie/5 motivated by and in retaliation for insults by petitioner in a tongue lashing contest, pursued as an outlet for the gratification of the ill temper of the participants and not in the performance of the duties of the ■petitioner’s employment, did not arise out of the petitioner’s employment and the employer is not responsible for the injuries resulting from such assault.

The petition is dismissed.


author: Bkennan, C. P. J.

text:
    Essex County Court of Common Pleas.
    GUS JOHNSON, PETITIONER-APPELLANT, v. C. F. HARMS COMPANY AND GLOBE INDEMNITY COMPANY, RESPONDENTS-APPELLEES.
    Decided February 6, 1947.
    Eor the petitioner-appellant, David Boslcein (John A. Laird, on the brief).
    For the respondents-appellees, Kalisch & Kalisch (Isidor Kalisch).

   Bkennan, C. P. J.

This is an appeal from a finding and determination of a Deputy Compensation Commissioner, dismissing the petition of petitioner-appellant (hereinafter called petitioner) for compensation, upon the ground that the Workmen’s Compensation Bureau has no jurisdiction to hear and determine the matter.

The pertinent facts are that the petitioner was injured on the highway contiguous to Port Newark while out on a journey for the procurement of groceries. It appears from his own testimony that he was a captain of a barge then tied up at Port Newark, and on his return from his journey in search of food he was refused admittance at the proper gate; that when he withdrew from that point to make complaint to the proper officials because of refusal of his admission he was struck on the highway by an automobile.

Learned counsel for the petitioner advances the proposition that he was nothing more or less than a watchman and did not fall into the category of crew member on the particular barge to which he was assigned. The petitioner’s testimony directly on the point, however, is otherwise. He describes himself as the captain of the barge, which was of some 7,800 tons. Whether that be the actual weight of the barge or its carrying capacity is not clear. There is further warrant for the assumption petitioner was the captain of the barge on his own testimony in the record to this effect: "Q. What did you go to Newark for, to buy in Newark? A. To buy groceries, like all the boat captains do.” (Testimony, page 9.)

Learned counsel for the petitioner asserts that the case here the subject-matter of consideration is controlled by Ramsey v. Leahey, 102 N. J. L. 513; 134 Atl. Rep. 91, and Baldwin v. Linde, Griffith Construction Co., 115 N. J. L. 608; 181 Atl. Rep. 35. While there was a recovery in the case of Ramsey v. Leahey, supra, it was evident from the expressed opinion of Mr. Justice Parker that the question of jurisdiction had not been raised; and the facts in Baldwin v. Linde, Griffith Construction Co., supra, are in my judgment not analogical to those in the instant case.

The law, .as it would appear to be, is that under the federal constitution the jurisdiction of the federal courts is extended to “all cases of admiralty and maritime jurisdiction” (U. S. Constitution, art. 3, § 2, cl. 1, U. S. C. A.). This provision was made effective by section 9 of the Judiciary Act of 1789 (1 Stat. at L. 76, ch. 20, as now contained in paragraph 3 of section 256 of the Judicial Code, 28 U. S. C. A., § 371, subd. 3), which gives exclusive jurisdiction to courts of the United States of all civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.” It is evident that the Workmen’s Compensation Act of New Jersey, N. J. S. A. 34:15-1, et seq., is not a common law remedy. Spencer-Kellogg & Sons, Inc., v. Hicks et al., 285 U. S. 502 (at p. 515) ; 52 S. Ct. 450.

The real question for resolution is whether or not there is a remedy under the Workmen’s Compensation Act of New Jersey on the facts in this case, or whether resort must be had to maritime jurisdiction.

The relatively early case of Spencer-Kellogg & Sons, Inc., v. Hicks et al., supra, held that the Workmen’s Compensation Act of New Jersey had no applicability to maritime torts.

The incidental questions involved in this situation are whether or not the petitioner was a member of a crew, and that has antecedently been established by his own statement, as I have indicated, and whether he does not come within the exclusive purview of the Jones Act, so-called. The relevant section of the Jones Act, 46 U. S. C. A., § 688, for the purpose of resolution of the second question follows:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with a right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply.”

The word vessel has been defined by the Congress of the United States under Title 1, chapter 1, U. S. C. A., § 3, as follows: “The word Vessel’ includes every description of water craft or other artificial contrivance used or capable of being used as a means of transportation on water.” That a barge, even without motive power of its own, is a vessel within the intendment of that language, and can have a crew, is I think clearly established in Norton v. Warner Co., 321 U. S. 565; 64 S. Ct. 747.

The case of O’Donnell v. Great Lakes Dredge and Dock Co., 318 U. S. 36; 63 S. Ct. 488, clearly indicates that a seaman injured on shore while in the service of his vessel is entitled to recover for his injuries in a suit • brought against his employer under the Jones Act.

The controlling cases it would appear, therefore, are Norton v. Warner Co., supra, and O’Donnell v. Great Lakes Dredge and Dock Co., supra. I think it can be said incontrovertibly that on the facts in the instant case the sole right of recovery derives from the Jones Act and that the petitioner has no standing under the law to invoke the jurisdiction of the ISTew Jersey Workmen’s Compensation Bureau.

The appeal is dismissed. Submit determination accordingly.


author: Conklin, Commissionek.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF THE CITY OF HOBOKEN v. STEVENS INSTITUTE OF TECHNOLOGY FOR THE YEAR 1945.
    Decided September 2, 1947.
    For the petitioner, John J. Fallon (Otmar J. Pellet and John J. Traynor, of counsel).
    For the respondent, Isador Haber.

   Conklin, Commissionek.

The City of Hoboken appeals from the action of the Hudson County Board of Taxation in cancelling the assessments on Block 227, Lot 2; Block 258, Lot Pt. 3; Block 228, Lot 11; Block 228, Lot 13; Block 234, Lot 2; Block 234, Lot 3; Block 258, Lot Pt. 3; "Block 234, Lots 1, 2 and 3; Block 236, Plot 27; Block 236, Lot 27a; Block 236, Plots 27b and 27c; Block 236, Lot 28; Block 258, Lot 4; Block 258, Lot 5, Block 258, Lot 30, Block 238, Lot 31; Block 238, Lot 32; Block 258, Lot 33; Block 258, Lot 35; Block 258, Lot 36; Block 259, Plot 5, Part 6, and Block 259, Lot 17, the appeal involving the question of the exemption of the said properties of the Stevens Institute of Technology in the City of Hoboken for the year 1945. These appeals, with few exceptions, are governed by the ruling of this Division in the 1944 case and the affirmance of that judgment by the Supreme Court, Hoboken v. Division of Tax Appeals, 134 N. J. L. 594; 49 Atl. Rep. (2d) 587. At the time the 1944 appeal was heard, Plot No. 5 and Lot No. 17, both in Block 259, were not in educational use, but the use of the said parcels has changed prior to October 1st, 1944, and should be exempted for the year 1945. Since the testimony taken in the 1944 appeal was stipulated to be a part of. this record and since there appears to be no change in the status of the appellant, or the use to which it put the property (except as hereinabove mentioned), we are bound by the ruling of the Supreme Court unless 'it is reversed by a higher tribunal.

But there is a new issue raised in this case. There has been a new sub-division made of the plots by the assessors and it is contended by the City of Hoboken that the land heretofore held to be exempt is now taxable as land not necessary for the enjoyment of the buildings used for educational purposes. An example of what was done by the assessors is evidenced by Plot No. 32 on which Stevens Castle was erected; this plot originally contained 128,127 square feet, or considerably less than five acres. It was divided on the assessing map into two separate parcels; the parcel on which the Castle was erected on the new tax map was designated as Plot No. 32A and contained 77,650 square feet; the balance of the' plot was designated as Plot No. 32 and contained 50,477 square feet. The city said that Plot No. 32 was not necessary for the use of, nor essential to give access to Stevens Castle and therefore should be assessed. The same is alleged to be true with respect to other parcels in the Institute’s assemblage.

The exempting statute, R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, provides in part:

“The following property shall be exempt from .taxation under this chapter: all buildings actually used for colleges, schools, academies or seminaries; * * * the land whereon any of the buildings hereinbefore mentioned are erected, and which may be necessary for the fair enjoyment thereof, and which is devoted to the purposes above-mentioned and to no other purpose and does not exceed five acres in extent; * * *. The foregoing exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this State and authorized to carry out the purposes on account of which the exemption is claimed.”

Prom a reading of the above statute it is noted that there is nothing contained therein which could possibly lead to the conclusion that the building plus the land (not exceeding five acres), must be of one assessment. It is quite possible that the building may be assessed on one parcel of land just barely large enough to hold the building, and the adjoining land which would be necessary for the fair enjoyment of the building would be exempt; the mere fact that there were separate assessments would not deprive the owner of the building and the land from the allowable exemption if the owner otherwise complied with the statute. The assessor, by the use of pen and ink on a tax map, and by it making subdivisions of the parcels of property, cannot defeat the rulings of this Division and of our courts. We hold that the land exempted by the County Board was necessary for the fair enjoyment of the buildings.

The judgments of the County Board of Taxation of Hudson County are affirmed, and the appeals of the City of Hoboken are hereby dismissed.

Judgments accordingly.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF MAJOB REALTY CORPORATION v. CITY OF HOBOKEN FOR THE YEAR 1945.
    Decided September 2, 1947.
    Por the petitioner, Fredman & Fredman.

    Por the respondent, John J. Fallon (Otmar J. Pellet and John J. Traynor, of counsel).
   Conklin, Commissioner.

The Majob Realty Corporation appeals from the assessments made by the City of Hoboken on Block 223, Lot PI (Wo. 44 Wewark Avenue); Block 223, Lot PI (Wo. 89 Hudson Street); and Block 223, Lot PI (Wo. 91 Hudson Street) for the year 1945. These assessments were made under the provisions of R. S. 54:4-63.2 and 54:4-63.3, as amended by chapter 137 of the laws of 1945 (N. J. S. A. 54:4-63.2, 54:4-63.3). The properties were purchased by the petitioner after the assessing date, October 1st, 1944, but prior to April 10th, 1945, the effective date of the amendment of the Revised Statute hereinbefore referred to.

Former President Quinn of the Board of Tax Appeals ruled that property owned by a taxing district as of the assessing date and subsequently sold, is exempt from taxation for the entire tax year, and no partial or proportionate tax assessment thereon could be made against a purchaser of the property during that tax year; Corrado v. City of Hoboken, 20 N. J. Mis. R. 134; 25 Atl. Rep. (2d) 287. This opinion has been followed by this Division. With the intention to restore to the tax rolls, property purchased from a taxing district, chapter 137 of the laws of 1945 was passed and became effective on April 10th, 1945, as an amendment to R. S. 54:4-63.2 and 54:4-63.3; N. J. S. A.. 54:4-63.2 and 54:4-63.3. It provides that when any parcel of real estate has been sold by a municipality as property not needed for public use, and the deed has been delivered after October 1st in any year and before the January 1st following, the assessor shall, after examination and inquiry, determine the full and fair value of such parcel of real property as of January 1st, and if such parcel of real estate was not assessed as of October 1st preceding, the assessor shall enter the amount of such assessment on the added assessment list. And also, if a deed is delivered after the 1st of January, then the assessor shall determine the value as of the first of the month following, add the property to the assessment rolls as an added assessment and pro rate the taxes for the balance of the year.

When these sales were made and title closed, the premises in question were listed on the tax records as being exempt from taxation and there was no law in effect covering payment of taxes by way of added assessment. The appellant contends that the act of April 10th, 1945, relating to added assessments, does not affect the premises in question. I do not believe that it does.

It is a well known rule of statutory construction that the legislative intent to give a statute retroactive effect must be expressed in the particular statute in clear and concise terms.

See the following cases: Harrington Co. v. Chopke, 110 N. J. Eq. 574; 160 Atl. Rep. 335; Bradford v. Commonwealth Casualty Co., 10 N. J. Mis. R. 301; 158 Atl. Rep. 840; Burdett v. Municipal Employees, &c., of Newark, 129 N. J. L. 70; 28 Atl. Rep. (2d) 93; Wittes v. Repko, 107 N. J. Eq. 132; 151 Atl. Rep. 850; Regan v. State Board of Education, 109 N. J. L. 1; 159 Atl. Rep. 691; affirmed, 112 N. J. L. 196; 170 Atl. Rep. 16. Ho such intent is expressed in the statute under which the assessment was made, to the effect that it be retroactive or retrospective. For this reason it would not apply to sales made between October 1st, 1944, and April 10th, 1945, and no taxes were lawfully levyable for the year 1945 upon these particular properties.

Judgments accordingly.


author: Labrecque, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF BOROUGH OF NORTH ARLINGTON, PETITIONER, v. RIVERVIEW GARDENS, SECTION ONE, INCORPORATED, RESPONDENT. For the Year 1945.
    Decided September 23, 1947.

      For the petitioner, Bruch <& Bigel.

    For the respondent, Charles Bubenslein.

   Labrecque, Commissioner.

Biverview Gardens, Section One, Incorporated, is the owner of certain property situated in the Borough of North Arlington, consisting of a garden type apartment development. For the year 1945, the property was assessed at $224,750. On or about August 3d, 1945, the Borough of North Arlington filed its petition of appeal to the Bergen County Board of Taxation seeking an increase in the assessment to $267,000. The petition of appeal recites that the petitioner is aggrieved by the assessment because “the said assessment is lower than its true value.” The Bergen County Board of Taxation dismissed the borough’s appeal, following which the present appeal was filed with us on December 5th, 1945. In the petition filed with us, it is again charged that the municipality is aggrieved because the said assessment is less than its true value. Both the petition to the County Board and the petition filed with the Division of Tax Appeals are signed and sworn to by John B. Manson, Mayor of the appealing municipality.

The taxpayer moves to dismiss the appeal on the ground that we are without jurisdiction to hear the same for various reasons, which will be hereafter referred to.

From the undisputed facts, it appears that on or before the 10th day of January, 1945, the municipal tax assessor filed with the County Board his complete assessment list and duplicate as required by law. R. S. 54:4-35; N. J. S. A. 54:4-35. In this list, the taxpayer’s property was assessed at land, $20,000; improvements, $204,750; total, $224,750. The County Board, in pursuance of the various duties required of it by the statute, R. S. 54:4-55; R. S. 54:4-46 to 54:4-48; N. J. S. A. 54:4-55, N. J. S. A. 54:4-46 to 54:4-48, revised and corrected the assessments and certified and transmitted the same. In the instant case no change was made in the assessment, as originally fixed by the assessor.

The respondent taxpayer urges that there should be a dismissal of the appeal for the reason that the municipality has failed to charge in its petition of appeal to the County Board and to us that it has been discriminated against.

It is also urged that there was no official action by the municipal governing body finding that the borough was discriminated against and authorizing the filing of the appeal.

It is clear that the motion of the taxpayer should be granted and the appeal dismissed. The rule is well settled that only a municipality which may feel discriminated against by the assessed valuation of property in the taxing district may appeal to the County Board of Taxation. The applicable statute, R. S. 54:3-21; N. J. S. A. 54:3-21, provides:

“A taxpayer feeling aggrieved * * * or feeling that he is discriminated against * * * or a taxing district which may feel discriminated against * * * may * * * appeal to the County Board of Taxation * *

The authority thus conferred is not a general right. It is especially 'limited and may be exercised only in the event of discrimination against the municipality. In re Jersey City, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189. The power to increase valuations of property for the purpose of taxation being a statutory one, it must be exercised in strict compliance with the statute conferring jurisdiction. Englewood v. Hopper, 54 N. J. L. 544; 23 Atl. Rep. 948. In order to confer jurisdiction upon the County Board, therefore, it is necessary, first, that the municipality charge, in its petition of appeal, that it is discriminated against, and that it set forth what assessment brought about this discrimination. In re Jersey City, 24 N. J. Mis. R. 315; 49 Atl. Rep. (2d) 26. It was further required to show, on the face of its records, that it felt discriminated against. In re Jersey City, 24 N. J. Mis. R. 315; 49 Atl. Rep. (2d) 26. In re Jersey City, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189.

It is undisputed that the petition of appeal filed with the County Board failed to charge or allege discrimination against the municipality. Since this was the sine qua non to the assumption of jurisdiction by the Board, the Board was without power to hear the appeal. If the County Board was not vested with jurisdiction to hear the case, neither are we. Oradell v. State Board of Tax Appeals, 125 N. J. L. 27; 13 Atl. Rep. (2d) 479. And this is especially so since the petition of appeal filed with us likewise fails to allege discrimination.

It is urged that a resolution was passed by the municipal governing body, correcting this omission. The resolution in question was adopted on September 17th, 1946. It is clear that the cited resolution could not give validity to the proceedings before the County Board which had antedated it by many months, and even were this not so, the resolution itself is devoid of any direction or authorization that the petition of appeal be amended to set up a charge of discrimination. In point of fact, this latter course would have been futile since, at the time the resolution was passed, the action of the County Board on the appeal was a matter of history.

It is further urged that, since the question of jurisdiction was not formally raised before the County Board, it cannot be raised here. The rule is to the contrary, however. The city and the taxpayer could not, by agreement, confer jurisdiction upon the County Board where, under the statute, it had no such jurisdiction. In re Jersey City, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189. The question of jurisdiction is properly raised before us notwithstanding that it may not have been raised below. McMichael v. Horay, 90 N. J. L. 142; 100 Atl. Rep. 205.

Since the County Board was without jurisdiction to hear the appeal in the first instance, the appeal should have been dismissed. It follows that the municipality’s appeal to this Division should likewise be dismissed.

The conclusion reached makes it unnecessary to consider the remaining grounds urged in support of the motion.

The motion is granted, the action of the County Board is affirmed, and the petition of appeal dismissed.


author: Kreamer, Commissioner.

text:
    Division of Tax Appeals.
    BANK OF PASSAIC AND TRUST COMPANY, PETITIONER, v. COUNTY OF PASSAIC AND CITY OF PASSAIC, RESPONDENTS. For the year 1946.
    Decided September 23, 1947.
    Dor the petitioner, Riskin & Riskin (by Philip Riskin).

    Dor the City of Passaic, Thomas E. Dufy.

    Dor the County of Passaic, Nicholas Martini.

   Kreamer, Commissioner.

This is an appeal from the-action of the Passaic County Board of .Taxation in denying a deduction of the' assessed value of certain real estate in ascertaining the value for taxation for the year 1946 of the shares of common stock of the petitioner, Bank of Passaic- and Trust Company.

Our present Bank Stock Tax Act may be found in R. S. 54:9-1 to R. S. 54:9-18, inclusive; N. J. S. A. 54:9-1 to 54:9-18, inclusive. R. S. 54:9-4; N. J. S. A. 54:9-4 of that act provides, in part, as follows:

“The value of each share of common stock of each bank shall be ascertained and determined by adding the amount of its capital, surplus and undivided profits and deducting therefrom the assessed value of its real property * * * and by dividing the result by the number of its shares of common stock * *

R. S. 54:9-5; N. J. S. A. 54:9-5 (before its amendment by Pamph. L. 1946, ch. 146, p. 692, not applicable to this ease) requires the chief fiscal officer of every bank to file with the Secretary of the County Board of Taxation on or before January 10th a statement under oath showing, among other things, the amount of its capital, surplus and undivided profits ■as the same are indicated on the books of the company on January 1st of the year in and for which the statement is filed, and the assessed value of its real property.

The effect of the foregoing two sections when read together is that the real estatp, the assessed value of which the petitioner contends should be deducted, must have been “its” property, that is, property owned by the petitioner, as of January 1st, 1946.

The facts are undisputed. In December of 1945 the petitioner entered into a contract for the purchase of the real estate in question from the American Acceptance Corporation. No formal agreement was executed, the contract being •evidenced by letters exchanged between the parties dated, December 18th and December 24th, 1945. No detailed terms were contained in the letters, reference being made solely to the price agreed upon and the date upon which all adjustments were to be based, namely, December 31st, 1945. Nothing was paid by petitioner on account of the purchase price until the closing of title, which closing took place on February 14th, 1946. The deed was dated and delivered on February 14th and recorded on February 15th.

Counsel for the petitioner argues that the “sole question at issue” is whether or not the bank had such ownership of said certain real estate as of January 1st, 1946, as to entitle it to the deduction of the assessed value of this real estate under R. S. 54:9-4; N. J. S. A. 54:9-4, above quoted. It is urged under well known principles of equity that the petitioner was the equitable owner of the title as of January 1st, 1946, by reason of the contract of purchase previously entered into, •and therefore the real estate was “its” property and consequently the assessed value thereof deductible.

We have no doubt that an equitable title does satisfy the requirement of ownership contained in R. S. 54:9-4; N. J. S. A. 54:9-4. Nevertheless the issue of ownership, as will appear, is not the sole consideration in a determination of the deductibility of the assessed value of this real estate.

In Orange National Bank v. City of Orange, New Jersey Tax Reports, 1913-34, p. 247; 43 N. J. L. J. 151, we held that a bank which had foreclosed on certain real estate and had placed the title in the name of a cashier who held in trust for it, thus constituting the bank as the equitable owner of the fee, was entitled to deduct the assessed value of the real estate. The decision, however, was based primarily upon the fact that the real property in question represented an investment of part of the capital, surplus and undivided profits of the bank, and that to deny the deduction merely because of the equitable nature of the fee would in effect subject the property to double taxation, which was what the statute was designed to avoid. In' referring to what is now R. S. 54:9—4; N. J. S. A. 54:9-4, we stated;

“* * * The purpose and consequence of the provision is not to exempt the property from taxation, but apparently to prevent it from being taxed twice. The capital, surplus and undivided profits of the bank comprehend all of its real estate. In other words, this real estate represents an investment of part of the bank’s capital, surplus and undivided profits. The value of this real estate was reported by the bank to the County Board and necessarily was taken into account in fixing the value of the shares of stock. * * *”

We further clearly indicated in this opinion that had the real estate not formed part of the assets of the bank so as to be reflected in the value of the shares, the deduction would not have been permitted, in spite of the fact that the property was owned by the bank within the meaning of what is now R. S. 54:9-4; N. J. S. A. 54:9—4. Again quoting from this opinion:

“If the petitioner did not carry the property in question as real estate of the bank, and if this real estate had not entered into the valuation of its shares, we should come to. a different conclusion. * * *”

Clearly, therefore, since the deduction provision in R. S. 54:9-4 was designed to prevent the double taxation of real ■estate, that which was not included originally in the computation of the value of the taxable shares cannot be considered deductible.

A parity of reasoning was used in City of Newark v. National Commercial, &c., 20 N. J. Mis. R. 205; 26 Atl. Rep. (2d) 252, in considering a very similar statute providing for the taxation of fire insurance companies and stock insurance companies. This statute, Pamph. L. 1918, ch. 236, § 307; R. S. 54:4-22; N. J. S. A. 54:4-22, since superseded by Pamph. L. 1938, ch. 245; N. J. S. A. 54:4—22, read in part as follows:

“Every fire insurance company and every stock insurance ■company other than life insurance, shall be assessed * * * upon the full amount of its capital stock paid in and accumulated surplus. The real estate belonging to every such corporation shall be taxed in the taxing district where situated, and the amount of assessment upon the real estate shall be deducted from the amount of any assessment made upon the capital stock and accumulated surplus. * * *”

In determining whether the assessed value of certain real estate was deductible, wo held that “to allow a reduction in the company’s assessment on account of property not entering into the determination of its capital stock and surplus” is in clear violation of the statute. See, also, National Commercial, &c., v. City of Newark, 18 N. J. Mis. R. 186; 11 Atl. Rep. (2d) 759; affirmed, 125 N. J. L. 503; 16 Atl. Rep. (2d) 553.

It should therefore be perfectly apparent that the ownership of the real estate by the petitioner herein, whether that ownership be legal or equitable, is not the sole consideration involved in the issue of deductibility. There remains the further and more basic question of whether the realty represented an investment of part of the capital, surplus and undivided profits of the bank as of January 1st, 1946, so as to have been necessarily included in the computation of the value of the shares.

As already shown, the contract for the purchase of the property was entered into in December of 1945, but the petitioner did not pay the purchase price until February 14th, 1946, when title passed. Additionally, it appears that the bank itself did not carry the property as real estate of the bank as of January 1st, 1946. In answer to a direct inquiry,, counsel for the petitioner advised this body that the property was not listed in the statement required to be filed with the-County Board of Taxation under R. S. 54:9-5; N. J. S. A. 54:9-5. The reason advanced for the omission was that the Commissioner of Banking and Insurance had not yet approved the transaction. But for whatever ieason, the fact is that the property was not, nor could it have been under the circumstances of this case, considered an investment of part of the bank’s capital, surplus and undivided profits.

Bor the reasons stated herein, the action of the PassaicCounty Board of Taxation in disallowing the assessed value of the real estate as a deduction is accordingly affirmed.


author: Kirgpield, D. C. J.

text:
    First Judicial District Court of Warren County.
    EMPLOYEES PERSONAL LOAN COMPANY, A CORPORATION, FORMERLY EVEREADY LOAN COMPANY, PLAINTIFF, v. REGINALD JACOBSEN, ALSO KNOWN AS JACK JACOBSEN AND JEAN JACOBSEN, HIS WIFE, DEFENDANTS.
    Decided October 29, 1947.
    For the plaintiff, Charles Blume.

    For the defendants, Frederick Sundheim.

   Kirgpield, D. C. J.

The above suit is on two counts: the first is based on a promissory note; and the second on a ■ chattel mortgage covering household furniture, musical instruments and other chattels. It was admitted that the .statute of limitations barred recovery on the first count. The said chattel mortgage was not a purchase-money mortgage; and was executed by the defendants, who were husband and wife.

The defendants contended that since the said chattel mortgage was unrecorded, it was void under the provisions of R. S. 46 :28-6; N. J. S. A. 46 :28-6, thereby precluding the plaintiff from any recovery whatsoever on his state of demand. In cases construing similar chattel mortgages, they were held to be void only to the extent that they included household furniture: the purpose being to protect property used in a household by a family. Green v. McCrane, 55 N. J. Eq. 436; 37 Atl. Rep. 318; Dunham v. Cramer, 63 N. J. Eq. 151; 51 Atl. Rep. 1011; McHugh v. Spotts, 121 N. J. L. 447; 3 Atl. Rep. (2d) 141.

In the recent case of Ehnes v. Hronis, 127 N. J. L. 551; 23 Atl. Rep. (2d) 592, decided by the Court of Errors and Appeals, recovery was allowed upon the covenant contained in an unrecorded chattel mortgage identical to the one in question.

In the unreported case of Ehnes v. Boenisch, decided by Judge Masueei, in the-District Court of the Secqnd Judicial District of Essex County, recovery was allowed on a similar chattel mortgage, the court stating that despite the fact that the chattel mortgage is void under R. S. 46 :28-6; N. J. S. A. 46 :28-6, it does not relieve the defendants of their personal responsibility to pay their debt. The cited statute only affects the validity of the lien of said mortgage against the said household furniture.

Therefore it is my opinion that although an unrecorded chattel mortgage executed by a husband and his wife covering household goods is void as a lien against such household goods, a suit based upon: the covenant in the said mortgage to pay a certain sum of money constitutes a valid cause of action. There will be a judgment entered against the defendants and in favor of the plaintiff for $81.23 upon the second count.


text:
    Bergen County Circuit Court.
    JAMES McALPINE, PLAINTIFF, v. CITY OF GARFIELD, BERGEN COUNTY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided November 5, 1947.

      For the plaintiff. Bichard J. Baker and Warren Dixon, Jr.

    For the defendant, Ghandless, Weller, Kramer & Frank.

   Leyden, 0. C. J.

James McAlpine sues for the compensation he would have received had he not been illegally dismissed from his employment as water plant superintendent of the City of Garfield. The answer consists of denials seriatim of the allegations of the complaint and separate defenses, variously stated, to the effect that the plaintiff was never lawfully appointed to or held any office, position or employment in the service of the City of Garfield. The denials are attacked as sham and the defenses as insufficient in law. The matters raised by these defenses are put in issue by the denial of the allegations of employment contained in the complaint. The separate defenses are merely reiterations of the denials. They do not raise any affirmative defensive matter not arising on the face of the complaint which would he likely to cause surprise on the trial if not pleaded. They are unnecessary and improper and will he stricken as insufficient in law. Save for the question of whether the plaintiff ever held any office, position or employment in the service of the city, the facts are not in dispute.

The plaintiff was an employee of the city in connection with the operation of the water plant and distribution system owned by it on August 23d, 1921, when the city adopted an ordinance establishing the Board of Water Works Commissioners and defining their duties and compensation. This ordinance placed the supervision of the water plant and the employment of such help as may be needed to its efficient operation and maintenance in the board thereby created. The plaintiff has worked for the city in and about the operation and maintenance of its water plant from that time, or prior thereto, until January 1st, 1945, when he was dismissed as the superintendent of the water plant. There is no denial that the plaintiff so worked and that he was paid compensation by the city for his labors during that period of time.

As a result of an investigation by two members of the Garfield Water Commission, a successor agency, the plaintiff was suspended from his duties as water plant superintendent on September 16th, 1944. He was served with formal charges alleging that he failed to discharge his responsibilities and was given a notice of hearing of such charges, which hearing was held on November 2d, 1944, and continued from time to time until December 13th, 1944, when the Commission found him guilty of sixteen of the twenty specifications and dismissed him from his employment. The Water Commission, an agency of the City of Garfield, in taking the course which it did, recognized the plaintiff as the water plant superintendent and further recognized that he had tenure of employment by virtue of R. S. 58:11-18.7; N. J. S. A. 58:11-18.7.

The plaintiff, by certiorari, reviewed the resolution of the Commission dismissing him and his discharge was upheld in the Supreme Court; see McAlpine v. Garfield Water Commission, 134 N. J. L. 432; 48 Atl. Rep. (2d) 783. In that proceeding it was stipulated by the attorneys for the parties that MeAlpine “was employed by the Water Plant Commission of the City of Garfield as Water Plant Superintendent in 1924, having previously served the City of Garfield from 1914 to 1924 as operator and foreman in the Water Department, and enjoys tenure of office by virtue of Pamph. L. 1941, ch. 234, p. 654 (R. S. 1937, Title 58:11-18.7; N. J. S. A. 58:11—18.7).” The Supreme Court in its opinion, undoubtedly as a result of this stipulation, took the view that the plaintiff occupied the office of water plant superintendent and had tenure. If, as is now contended, the plaintiff never held any office, position or employment in the service of the City of Garfield, that defense could and should have been raised in the hearing of the writ.

The judgment of the Supreme Court dismissing the writ was reversed by the Court of Errors and Appeals upon the ground that the plaintiff was not accorded a fair and impartial hearing. See McAlpine v. Garfield Water Commission, 135 N. J. L. 497; 52 Atl. Rep. (2d) 759. It is safe to say that again the court assumed that the plaintiff held either an office or a position in the service of the city. In any event, the illegality of his dismissal was judicially determined. Thus is brought into play the statute, R. S. 40:46-34; N. J. S. A. 40:46-34, providing that whenever a municipal officer or employee has been illegally dismissed from his office or employment, and such dismissal has been judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal. It is upon this statute that the plaintiff has drawn his complaint.

Will the City of Garfield now be heard to say that the plaintiff was never legally the holder of any office, position or employment in its service ? I think not. The city is estopped by its conduct and stipulation from setting up that defense at this stage of the controversy. The doctrine of estoppel is nicely set forth by Mr. Justice Heher in New Jersey Suburban Water Co. v. Harrison, 122 N. J. L. 189 (at p. 194); 3 Atl. Rep. (2d) 623 (at p. 626), as follows: “In modern usage, equitable estoppel and estoppel in pais are convertible terms, embracing also gwasi-estoppel. They embody the doctrine, grounded in equity and justice, that one shall not be permitted to repudiate an act done or position -assumed where that course would work injustice to another who, having the right to do so, has relied thereon. An estoppel arises ‘where a man is concluded and forbidden by law to speak against his own act or deed; yea, even though it is to say the truth.’ Termes de la Ley, tit. ‘Estoppel,’ cited in Demarest v. Hopper, 22 N. J. L. 599, 619. It is operative where a person ‘has done some act which the policy of the law will not permit him to gainsay or deny.’ 1 Greenl. Evid. (16th ed.) ch. VI, 22. See, also, Blk. Com. 308. While the creature of equity, and governed by equitable principles, it is a doctrine enforceable in courts of common law jurisdiction. LaRosa v. Nichols, 92 N. J. L. 375; 105 Atl. Rep. (2d) 201; Central Railroad Co. v. MacCartney, 68 N. J. L. 165; 52 Atl. Rep. 575. It is of the essence of equitable estoppel that one is precluded from taking a position inconsistent with that previously assumed and intended to influence the conduct of another, if such repudiation ‘would not be responsive to the demands of justice and good conscience,’ in that it would effect an unjust result as regards the latter. Rothschild v. Title Guarantee and Trust Co., 204 N. Y. 458; 97 N. E. Rep. 879; 41 L. R. A. (N. S.) 740.” In Sherwin v. Sternberg, 77 N. J. L. 117; 71 Atl. Rep. 117, a defendant was estopped by the terms of her agreement from asserting a contrary position at the trial, and in Cleaves v. Yeskel, 104 N. J. L. 497 (at p. 504); 141 Atl. Rep. 814 (at p. 817), it is said: “A party may take alternate positions as to certain matters or things, but not inconsistent ones with reference to the very same identical matter or thing.” The rule thus to be applied is one of procedure rather than strict estoppel. It is a quasi or judicial estoppel based on justice and fair play. Eeliance and injury, therefore, are not necessarily essential to its application. It may be invoked in a subsequent judicial proceeding where, as here, the parties and the questions are the same. The employment of McAlpine by the agency of the city was necessarily adjudged, and was the basis of the decision of the Court of Errors and Appeals that he did not receive a fair and impartial hearing on his dismissal. The same question of employment is sought to be raised again here.

The city is estopped for another reason. The status of McAlpine as an employee is res judicata. The second phase of that doctrine, namely, where the second cause of action is founded on a different claim or demand is brought forth. See City of Paterson v. Baker, 51 N. J. Eq. 49; 26 Atl. Rep. 324. The prior judgment is conclusive only as to such matters as were actually litigated and necessarily determined. Cf. Credit Adjustors and Collectors, Inc., v. Bergen-Essex Construction Co., 127 N. J. L. 547; 23 Atl. Rep. (2d) 779, and Nuzzi v. United States Casualty Co., 121 N. J. L. 249; 1 Atl. Rep. (2d) 890.

In distributing water to its inhabitants for a price the City of Garfield is exercising a private or proprietary function and is governed by the same rules as apply to private corporations. Fay v. Trenton, 126 N. J. L. 52; 18 Atl. Rep. (2d) 66.

The defendant now seeks to take a position inconsistent with and contrary to its stand before the Supreme Court and the Court of Errors and Appeals on the matter of the employment of the plaintiff, and this it will not be permitted to do “yea, even though it is to say the truth.” The denials in the answer are sham. They will be stricken.


author: Conklin, Commissi onek.

text:
    Division of Tax Appeals.
    ATLANTIC CITY TRANSPORTATION CO., PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT. For the year 1946.
    Decided October 14, 1947.
    Por Atlantic City Transportation Co., Thomas IT. Munyan.

    Por Prank E. Walsh, Director of the Division of Taxation, Waller D. Van Riper, Attorney-General (by Max Eisensiein, Assistant Attorney-General).
    Por the City of Atlantic City, Leon Leornard.

   Conklin, Commissi onek.

Two appeals were filed by the Atlantic City Transportation Co., from the assessments made by the Director of Taxation for the year of 194G under the provisions of chapter 5 of the laws of 1940 as amended by chapter 21 of the laws of 1941, N. J. S. A. 54:31-45, et seq. One petition involves the question of the validity of the franchise tax levied under the provisions of paragraph 6, sub-paragraph (a) of the aforesaid act, and the other petition questions the validity of the assessment of the gross receipts tax made under paragraph 6, subparagraph (b) of the same statute. Since common questions of law and fact are presented, they were-tried and can be disposed of simultaneously.

The petitioner was incorporated as the Atlantic City Transportation Co., under the provisions of title 48, chapter 15 of the Revised Statutes, N. J. S. A., which act applies to street railways. On December 1st, 1945, the petitioner took title to various properties together with the operations, rights, and franchises formerly owned by the Central Passenger Railway Co., the Atlantic City and Shore Railroad Co., the Atlantic City and Ocean City Railroad Co., and the West Jersey and Seashore Railroad Co.

In the purchase from the West Jersey and Seashore Railroad Co., the petitioner became the owner of a right of way 24.3 feet in width, which began at or near the car barn at the inlet in Atlantic City, and which right of way extended through Atlantic City, Ventnor City, Margate City, and the Borough of Longport. For the year 1945 an assessment was levied upon this right of way as first class railroad property, and the assessment paid. For the year 1946, no assessment as first class railroad property has been made and no taxes collected. The original plan or map of dedication of the City of Atlantic City, filed April 15th, 1853, covered only the area on either side of the right of way of the West Jersey and Seashore Railroad Co., from the inlet to California Avenue, and as the cities developed they acquired a strip of land on either side of this 24.3 feet right of way and made it a continuation of the original Atlantic Avenue. At the present time, Atlantic Avenue in the City of Atlantic City, is paved from curb to curb, including that area between the rails of the street railway, with the same type of pavement. Pedestrian and vehicular traffic use the paved portions on the right of way of the petitioner, and one not knowing the history of the development of Atlantic Avenue could not ascertain from observation that there was a private right of way through the city. The paving between the rails was originally done by the West Jersey and Seashore Railroad and since that time an agreement has been entered into between the petitioner and the City of Atlantic City that the railway would maintain a row of Belgian blocks on the side of each rail, and that the city would keep the street in repair. There has never been any formal dedication or other abandonment of this right of way other than the user of the public. The portion in dispute is approximately 3.043 miles in length. The balance of the right of way in the City of Atlantic City, Ventnor City, Margate City and Longport is unpaved and does not enter into this dispute.

The Atlantic City Transportation Co., over the purchased lines, created two divisions, one known as the “Atlantic Avenue Division” and the other as the “Ocean City Division.” The Atlantic Avenue Division runs from the inlet in Atlantic City to Longport, iSTew Jersey, and return, a total of 8.31 miles. The Ocean City Division runs from Virginia Avenue and the Boardwalk in Atlantic City to Eighth Street and the Boardwalk in Ocean City, and goes through the cities of Pleasantville, Northfield, Linwood, and Somers Point, a total of 15.412 miles, making the total mileage of the petitioner 27.22 miles.

Paragraph 6, subparagraph (a), giving the formula in computing the franchise tax, provides as follows:

“(a) A tax computed at the rate of five per centum (5%) of such proportion of the gross receipts of such taxpayer for the preceding calendar year as the length of the lines or mains in this State, located along, in or over any public street, highway, road or other public place hears to the whole length of its lines or mains. In case the gross receipts of any such taxpayer for any calendar year shall not exceed fifty thousand dollars ($50,000.00) the tax on such taxpayer for such calendar year shall be computed at the rate of two percentum (2%) instead of at the rate of five percentum (5%).”

Thus, a factor used in determining the taxable gross receipts is arrived at by dividing the total number of miles located on a public place by the total length in miles of the street railway’s operation. The petitioner questions the factor used by the Director of Taxation and claims that he was in error, as the Director determined the total mileage located in the public street to be 4.156 miles, and the petitioner claims it should have been 1.113 miles. This difference is caused by the Director’s insistence that the portion of the petitioner’s right of way on Atlantic Avenue in the City of Atl&Atic City was line 'located on a public place” within the meaning of the statute.

Paragraph 2 of chapter 5 of the Public Laws of 1940, as amended by chapter 21, of the laws of 1941, paragraph 2, subparagraph (g), defines a public place as follows:

“(g) 'Public street, highway, road or other public place’ includes any street, highway, road or other public place which is open and used by the public, even though the same has not been formally accepted as a public street, highway, road, or other public place.”

The statute is clear and explicit. It is not an attempt by the legislature to define what is a public street, highway, or other public place for any general purpose, but for the purpose of this statute only, and in particular the application of paragraph 6, subparagraph (a) of this act. Clarkson v. Ley, 106 N. J. L. 380; 148 Atl. Rep. 745; O’Neill v. Johnson, 99 N. J. L. 317; 123 Atl. Rep. 538.

We therefore feel that the Director used proper discretion in arriving at the amount of mileage in a public place to determine his factor of .175196020.

But we do believe that the Director was in error in using the figure of gross receipts in his computation of both the franchise tax and the gross receipts tax. 'The figures were arrived at as follows:

Atlantic City Transportation Co. Dee. 1, 1945, to Dec. 31, 1945 ............ $84,865.47
Atlantic City and Shore Railroad Co. Jan. 1, 1945, to Nov. 30, 1945 ........... 1,253,636.06
Atlantic City and Ocean City Railroad Co. Jan. 1, 1945, to Nov. 30, 1945 ........... 11,000.00
Central Passenger Railway Co. Jan. 1, 1945, to Nov. 30, 1945 ........... 4,497.43
Total gross receipts as computed by the Director ■..........................$1,353,998.96

Paragraph 15 of chapter 5 of the laws of 1940, the section under which the determination of the gross receipts was computed, reads as follows:

"15. When any corporation subject to taxation under this act shall acquire the rights, property and franchises of using and occupying public streets, highways, roads or other public places in this State, other than the right and franchise to operate autobuses or vehicles of the character described in Title 48, chapter fifteen, section forty-one to the end of the chapter, of the Revised Statutes (Revised Statutes, section 48:15-41 et seq.), of persons, copartnerships, associations or corporations then subject to an excise tax based upon its gross receipts, and shall retain such rights, property and franchises at the end of the calendar year in which such acquisition occurs, then and in such case on or before the first day of February of the succeeding year, such acquiring corporation shall return to the State Tax Commissioner in the manner and form required by this act and in addition to the statements of gross receipts, scheduled property and length of lines to he filed under this act, a statement showing the gross receipts from the business over, on, in, through or from the lines or mains of the persons, copartnerships, associations, or corporations whose rights, property and franchises were acquired as aforesaid, from January first of the year in which such property was acquired to the date of such acquisition, together with a statement showing the scheduled property and length of lines or mains as of July first of the year in which such acquisition took place, as hereinbefore required, unless such information has previously been supplied and filed with the State Tax Commissioner. The total of the gross receipts as shown in both of said statements to the State Tax Commissioner, or as otherwise ascertained by him, shall he used in ascertaining, fixing and apportioning the excise tax imposed by section six (a) of this act upon such acquiring corporation, and if said rights, property and franchises were acquired from a corporation subject to taxation under this act, then the total of the gross receipts as shown in both of said statements to the State Tax Commissioner, or as otherwise ascertained by him, shall be used in ascertaining, fixing and apportioning the excise tax imposed by section six (b) of this act upon such acquiring corporation.”

This section provides that where the street railway acquires the rights, &c., of another street railway subject to an excise tax based upon its gross receipts, then the gross receipts tax shall be figured on the basis of the gross receipts of the prior operator of the street railway.

As a general rule, a liberal construction must be given all tax laws for public purposes, and it is the duty of the courts to see that no one, by mere technicalities which do not afiect his substantial rights, shall escape his fair proportion of the public expenses, and thus impose them upon others. Paulison v. Taylor, 35 N. J. L. 184.

But two of the petitioner’s predecessors in title, the Atlantic City and Shore Railroad Co., and the Atlantic City and Ocean City Railroad Co., were chartered under the Railroad Act, N. J. S. A. 48:12—1, et seq., and as such were in operation up to December 1st, 1945. Atlantic City and Shore Railroad Co. v. State Board of Assessors et at., 88 N. J. L. 219; 96 Atl. Rep. 568. The Director was not within his rights in computing the gross receipts of those two railroad corporations in arriving at his total, as they were not corporations subject to taxation under the provisions of section 15, supra. The Central Passenger Railway Co. was subject to such a tax and its gross receipts for the previous year were reported.

It is our finding that the gross receipts for the year ending December 31st, 1945, that should have been considered by the Director are:

Atlantic City Transportation Co. Prom Dec. 1, 1945, to Dec. 31, 1945 ........ $84,865.47
Central Passenger Railway Co. Prom Jan. 1, 1945, to Nov. 30, 1945 ....... 4,497.43
Total ............................... $89,362.90

Therefore, both the franchise tax and the gross receipts tax should have been determined by using gross receipts of $89,362.90, and the franchise tax by using the factor of .175196020.

The Director of the Division of Taxation should reassess, reapportion and recertify the franchise tax and the gross receipts tax for the year 1946 on the basis above set forth.

Judgment accordingly.


author: Case, Chief Justice.

text:
    GEORGE KOVAL, PETITIONER-PROSECUTOR, v. NATURAL PRODUCTS REFINING COMPANY, RESPONDENT-DEFENDANT.
    Submitted March 29, 1947
    Decided May 6, 1947.
    Before Case, Ciiiee Justice, sitting alone pursuant to the statute.
    For the petitioner-prosecutor, Michael Biblco, Jr.

    For the respondent-defendant, Kalisch & Kalisch (Isidor Kalisch).

   Case, Chief Justice.

This is an application by the employee for a writ of certiorari with a stipulation by the parties that if I determine a writ should go I may proceed to determine the merits as though upon the return of the writ. I have concluded that a writ should go. The allocatur has been signed. I proceed to determine the issue as though upon a return of the record.

In April of 1946 the prosecutor filed two petitions for compensation, one for disability to his back because of accidental injuries, the other for disability as to his nose because of occupational disease. An award was made on each petition. The award with respect to the nose was for three per centum of permanent disability because of the nasal perforation due to chrome poisoning, an occupational disease. The only dispute is whether the disability to the nose should have been calculated upon the 1945 schedule of compensation or upon the 1946 schedule which was more favorable to the employee. The Bureau held for the latter, and the Common Pleas, on appeal, for the former.

I find-the facts as follows: Prosecutor was employed by Natural Products Refining Company. On December 14th, 1945, which was about two weeks after the employment began, prosecutor suffered a back injury and'lost ten days from work because of it. While receiving treatment for that injury he called’the doctor’s attention to an itch in his nose and was informed that “there was a- hole in it” and was given some salve. That was in December of 1945. On January 8th, 1946, prosecutor quit working for respondent because he could “not stand it any more”—a status which I find included the nose condition. The holé in the septum or nose, with the itching and other incidents thereto, was due to chrome poisoning, an occupational disease which, as is conceded, came from the employment. It had its inception in December of 1945, but there is no proof that it instantly attained its full size. The respondent’s expert testified that “whatever chrome would do to the nasal septum it would do early and that is where it ends,” and from this it is argued by respondent that the damage to prosecutor’s nose was completely accomplished in December of 1945. But that is not the testimony, and I am satisfied it is not the fact. The fair inference is, and I therefore find the fact to be, that the disease was progressive in December of 1945 and until approximately the end of the exposure on January 8th.

We begin our consideration of the law with the predetermined finding that the employee did suffer a permanent disability of throe per centum of total for which he is entitled to compensation. Sutkowski v. Mutual Chemical Co., 115 N. J. L. 53; 178 Atl. Rep. 71. That is conceded. The only open question is when the disability occurred and that in this case is a mixed question of law and fact. The time of the first symptoms of the poisoning did not tie the disability to that moment. Disability arises rather when incapacity occurs. Textileather Corp. v. Great American Indemnity, 108 N. J. L. 121; 156 Atl. Rep. 840. But incapacity, in the strict fullness of that word, may not occur, perhaps did not occur in this case, and need not occur. Sutkowski v. Mutual Chemical Co., supra. Even when compensation is sought for disability arising out of accident, it is not a prerequisite that the employee shall be incapacitated from doing the same work or earning the samé wages as theretofore. Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859. Lacking proof as to when the progress of the disease was arrested and the condition became’ chronic, I consider that the disability, within the meaning of the statute, became established when prosecutor found himself unable longer to endure the employment and, by .quitting, ended the exposure. R. S. 34:15-34; N. J. S. A. 34:15-34, provides that the period for filing a petition for compensation because of occupational disease shall run from the time when the employee ceased to be exposed; comparing, in this respect, with R. S. 34:15-51; N. J. S. A. 34:15-51, which provides that the period for filing a petition for compensation because of accident shall run from the date when the accident occurred. I conclude that the disability arose on January 8tli, 1946.

The result is that prosecutor was entitled to an award under the 1946 schedule. The judgment in the Pleas in this respect will be reversed, and the judgment in the Bureau will be affirmed, with costs to prosecutor.


author: Case, Chiee Justice.

text:
    JOHN F. CLYDE, PLAINTIFF, v. CHARLES PARILLO, DEFENDANT.
    Decided May 7, 1947.
    Before Case, Chiee Justice, sitting as a single justice pursuant to the statute.
    Bor the motion, Sanford Silverman.

      Contra, Meehan Brothers.

   Case, Chiee Justice.

The defendant moves against the order for bail which was made by a Supreme Court Commissioner. The facts covered in the affidavit as supporting the order for bail are that the assailant, who was one of the proprietors of the tavern where the assault occurred, with his bare fists broke the affiant’s jaw and destroyed his teeth and that the affiant “was confined to the hospital for six days, where his jaw was wired and the same remained wired for a period of six weeks,” and that this was done “without provocation and with maiice.” The inference is that the break was satisfactorily mended. It was conceded at the oral argument that the destruction of teeth referred to the breaking of the affiant’s false plate, which act is clearly not within the statute as a ground for holding to bail.

The statute on the issuing of a capias ad respondendum in tort actions is R. S. 2:27-70; N. J. S. A. 2:27-70, and provides as follows:

“A capias ad respondendum, shall issue in an action founded upon a tort only when (a) the action is founded upon a seduction, an outrageous battery or a mayhem, or is for the recovery of damages for the misconduct or neglect of a public officer, or (b) the proof establishes special cause as heretofore for holding defendant to bail; and, in such cases, only upon proof, by affidavit or otherwise, to the satisfaction of the court in which the action is about to be commenced or to a judge or a supreme court commissioner of the grounds upon which bail is required.”

The statute on mayhem is R. S. 2:151-1; N. J. S. A. 2:151-1, which provides:

“Any person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner, or with intent to kill, maim or disfigure, shall cut out and disable the tongue, put out an eye, cut off or slit a lip, cut off, slit or destroy a nose or ear, or cut off or disable any limb or member of another, willfully and on purpose, shall be guilty of a high misdemeanor.”

Properly, by the old English common law, mayhem consisted of violently depriving another of the use of such of his members as might render him the less able in fighting either to defend himself or to annoy his adversary. 4 Black. Com. 205. Later, by statute, the offense was extended to include certain disfigurements. Our statute on mayhem goes back in much the present language at least as far as 22 and 23 Car. II, ch. 1, called the Coventry Act (3 Statutes at Large 350; Cf. 4 Black. Com. 207); and the seriousness of the offense as there conceived is apparent from the penalty which was “death as in cases of felony without benefit of clergy.” The statute was, according to its recitals, provoked by the “violent and inhuman attempt made upon the person of Sir John Coventry * * * being a member of the Commons House of Parliament and then attending the Parliament * * * by a considerable number of armed men, both on foot and horseback whereby * * * the said Sir John Coventry received divers wounds, some of which were given in such barbarous manner that some of the offenders held him while others wounded him;” a part of the assault of the battery being a slitting of the victim’s nose. A constituent part of the statutory offense was that it was done “on purpose and of malice aforethought, and by lying in wait.”

Our cases, some of which are cited below, are to the effect that the grounds must appear by affidavit, which should consist of competent and legal evidence amounting to proof and should not be the conclusions of the affiant; that the phrase “outrageous battery” is used in conjunction with the word “mayhem” and calls for the application of the maxim noscitur a sociis; that therefore the act or acts complained of must be akin to mayhem and must be malicious. The following acts have been held not to justify the issuing of a capias: striking a woman over the eye with the right hand on which was worn a diamond ring, kicking her in the ribs and stomach, causing her to bleed profusely from the mouth and pulling her hair; brutally and repeatedly striking a woman in the face with clinched fists, pushing her down across a day bed, choking her, breaking her eye-glasses, cutting and bruising her cheek, bruising and injuring her shoulder, arm, back; grabbing a woman and with force and violence attempting to kiss her, squeeze her, pat her cheek, pinch her breasts; breaking a man’s collarbone and causing severe contusions to his head, back, chest, legs and other parts of his body and severe nervous shock. Gardner v. Marcocci, 43 N. J. L. J. 338; Haglich v. Ceverlere, 105 N. J. L. 521; 146 Atl. Rep. 591; Hand v. Nolan, 1 N. J. Mis. R. 428; 136 Atl. Rep. 430; Jacobs v. Costanza, 136 Atl. Rep. 807 (not officially reported) ; Stumbfl v. Datton, 11 N. J. Mis. R. 331; 165 Atl. Rep. 723; Vitalano v. Roffo, 3 N. J. Mis. R. 1130; 130 Atl. Rep. 815; Hufly v. Wilson, 78 N. J. L. 241; 74 Atl. Rep. 137; Siris v. Bialy, 5 N. J. Mis. R. 345; 136 Atl. Rep. 431.

The affidavits are conspicuously lacking in The details of the occurrence. The averment that the attack was “without provocation and with malice” standing alone is simply a conclusion by the affiant. No facts are stated from which a judicial officer may base a finding of malice or premeditated design. An attack with bare hands does not per se denote preparation, and the fact that the alleged assailant was one of the proprietors of the tavern where the affair occurred suggests, although, of course, it carries no inference, that perhaps there was occasion for the incident. A restored jawbone does not weaken a man for combat and does not affect his comeliness; at least neither of these results is manifested in this ease.

Measuring the proofs against our statutes and our cases in the light of the historical background, I r conclude that the acts relied upon to support the arrest must be malicious (Haglich v. Ceverlere, supra) and that since malice is an element in the offense such facts must be averred as will support a finding of malice. I am not satisfied with the proofs either in that respect or in respect of the outrageous character of the battery itself.

The order to hold to bail will be quashed and the bail discharged.