author: Pulop, D. C. J.

text:
    District Court of the Second Judicial District of the County of Union.
    SAUL ZAETZ, PLAINTIFF, v. GENERAL INSTRUMENT CORP., A CORPORATION, DEFENDANT.
    Decided February 23, 1943.
    Por the plaintiff, Charles M. Grosman.

    Por the defendant, Stein, Stein & Stein.

   Pulop, D. C. J.

This is a suit under the “Pair Labor Standards Act of 1938,” commonly known as the Wages and Hours Law. Plaintiff was employed by the defendant from April 18th, 1942, to September 19th, 1942, when he was paid his salary for two weeks in advance and discharged. He seeks to recover $171.57 overtime pay, plus the same amount as liquidated damages and a reasonable counsel fee which he alleges to be $100. The total claim is therefore $443.14.

The applicable statutory provisions are:

Fair Labor Standards Act of 1938, Public Law Ho. 718, 75th Congress (U. S. C. A. Title 29, §§ 207, 213 and 216) :

“Section 7 (a). Ho employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—

*******

“(3) for a work week longer than forty hours after the expiration of the second year from such date (effective date of this section) unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one half times the regular rate at which he is employed.”

“Section 13 (a). The provisions of sections G and 7 shall not apply with respect to (1) any employee employed in a bon fide executive * * * capacity * * * (as such terms are defined and delimited by regulations of the administrator) ; * *

“Section 16 (b). Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one ór more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”

The regulation of the administrator defining “bona fide executive” as used in section 13 (a) of the act, reads as follows:

“Section 541.1—Executive.

“The term ‘employee employed in a bona fide executive * * * capacity’ in section 13 (a) (1) of the act shall mean any employee—

“(A) whose primary duty consists of the management of the establishment in which he ls employed or of a customarily recognized department or subdivision thereof, and

“(B) who customarily and regularly directs the work of other employees therein, and

“(0) who has the authority to hire or fire other employees or whose suggestions, and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight, and

“(D) who customarily and regularly exercises discretionary powers, and

“(B) who is compensated for his services on a salary basis at not less than $30 per week (exclusive of board, lodging, or other facilities), and

“(B) whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 per cent, of the number of hours worked in the workweek by the nonexempt employees under his direction; provided that this subsection (B) shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment.”

This definition has the force of law under the provisions of the act and supersedes common understanding and dictionary definitions.

In the present ease it has been stipulated or otherwise agreed by both sides that:

1. Plaintiff was employed by defendant during the period above mentioned.

2. That the defendant was engaged in the production of goods for interstate commerce exclusively.

3. That the plaintiff was engaged solely in such production.

.4. That it was agreed that he should be paid a salary of $40 per week for a 44 hour week and straight time for any hours worked in excess.

5. That plaintiff worked a varying number of hours in excess of 44 per week during each of 21 weeks of his employment as listed in a schedule annexed to the state of demand.

6. That plaintiff received payment of the weekly sums listed in the aforesaid schedule, which were calculated at $40 for 44 hours, plus straight time for overtime, and he was not paid at one and a half times the hourly rate for the overtime worked. He was paid the $40 whether or not he worked at all.

Plaintiff’s testimony was evasive and equivocating. Taking the evidence as a whole, I find the following additional facts:

1. Plaintiff was employed under the title of “foreman.”

2. He was in charge of a sub-department, sometimes known as the hand soldering department, which was physically confined to one area and separated from other sections of the plant.

3. There were usually 18 to 22 employees under his command. All of these employees worked in the physical area assigned to plaintiff’s department.

4. It was plaintiff’s duty to instruct and supervise these employees.

5. Plaintiff’s recommendation as to the number of employees required, the retention of any employee taken on by the personnel department, and the discharge of any employee in the subdivision under his charge was expected, received and given great weight. His recommendations were usually followed in these respects.

6. Most of the employees under plaintiff’s supervision were engaged in assembling and soldering radio parts.

7. Three or four employees under plaintiff’s supervision were engaged in auxiliary work, including especially, the filing of soldering iron tips to a special form required for the work being done.

8. Plaintiff did not normally, usually or for any substantial part of his work week, engage in assembling or soldering. Plaintiff may have done some limited manual production work, but the percentage of his time so employed was not proved.

9. Most of plaintiff’s time was taken up with procuring and furnishing jigs or fixtures in which the soldering operation was performed, gloves and other equipment for the production workers, instructing these workers and cheeking their work, instructing the soldering tip pointers, maintaining production schedules and improving production methods.

10. Plaintiff did some auxiliary manual work, such as filing soldering tips, but the percentage of his time so employed was not proved. He did this only when the men employed for the purpose were not available or when he was instructing them.

11. Plaintiff did experimental and development manual work for three weeks exclusively and to a limited extent throughout his employment. The percentage of his time so employed was not proved.

12. Plaintiff was not a member of the labor union to which all employees under his supervision belonged. Plaintiff was a member of the Key Men’s Club to which all executives of the plant belonged.

A “working foreman” is not an executive within the meaning of the act. A working foreman performs the same type of work as those whom he supervises. His executive functions are merely superimposed. Plaintiff was not a working foreman.

Applying the administrator’s definition to the foregoing finding of facts, it appears that:

A. Plaintiff’s primary duty consisted of the management of a recognized subdivision of a department of the establishment.

B. Plaintiff customarily and regularly directed the work of other employees in the department subdivision.

C. His suggestions and recommendations as to hiring, firing and change of status of other employees were given particular weight.

D. He customarily and regularly exercised discretionary powers.

E. He was compensated on a salary basis at more than $30 per week.

E. It does not appear that his hours of work of the same nature as that performed by the non-exempt employees under his direction exceeded 20 per cent, of the number of hours worked in the work week by the nonexempt employees under his direction.

There is no question about A, B, C, D and E. The burden was upon the plaintiff to prove non-compliance with E. He has failed to sustain that burden.

There will be a Judgment in favor of the defendant.


source: Caselaw Access Project

author: Del Mar, C. P. J.

license: Public Domain

text:
    Bergen County Court of Common Pleas.
    WOODROW HUTCHINSON, PETITIONER-APPELLEE, v. STORM PROOF ROOFING CO., RESPONDENT-APPELLANT.
    Decided February 10, 1943.
    For the petitioner-appellee, Nathan Rabinowiiz and Isadore Rabinowitz.

    For the respondent-appellant, Avidan & Avidan (by Alexander Avidan).

   Del Mar, C. P. J.

The above matter having come on for hearing before me from the Workmen’s Compensation Bureau, in the presence of Isadore Kabinowitz, attorney for petitionerappellee, and Alexander Avidan, attorney for respondent-appellant, and the matter having been argued and submitted on briefs of the respective parties, I do hereby find and determine as follows:

From a judgment in favor of the petitioner-appellee and against the respondent-appellant, the latter has appealed to this court; its contention is that the petitioner was an independent contractor and not an employee.

The testimony of the petitioner and his co-worker, Emil Searmazzo, both support the petitioner’s claim. The respondent attempted to meet this evidence with proof that the petitioner was a partner of Searmazzo and that these two as partners entered into a contract to perform certain labor and supply materials as subcontractor for the respondent. Ho plans and specifications were offered in evidence and the testimony relating to the alleged contract is, at best, nebulous. The same is also true of the alleged partnership. There is no. written evidence tending to support either claim. As a matter of fact, after the petitioner was injured, the evidence shows that the respondent prepared a document bearing date earlier than the day on which the work was actually commenced, which document purports to be an offer from Scarmazzo to the respondent to perform certain carpentry work, including apparently the furnishing of the materials therefor, at a price of $400. The petitioner’s name is not even mentioned in this document which was evidently prepared for fraudulent purposes.

There is no satisfactory, evidence that the petitioner either alone, or together with Scarmazzo ever contracted with the respondent to do any definite amount of work, or furnish any definite amount of material for the alleged contract price; neither does the evidence of the transactions occurring between the petitioner and the respondent indicate that as the work progressed any recognition was made by the respondent of the existence of either such a partnership, or such a contract.

Cheeks were made out by the respondent .to Scarmazzo, one dated April 26th for $50 and one dated May 3d for $35. The testimony indicates that the payment of $85, represented by these two checks, was approximately, if not exactly, computed at the rate of $1 an hour for the services rendered by the petitioner and Scarmazzo up to the time of the accident. The first of these two checks was cashed by Scarmazzo and one-half the proceeds given to the petitioner. The second of these checks was turned over to and endorsed by the petitioner, who apparently shared the proceeds with Scarmazzo. Later on other checks were given to Scarmazzo and endorsed by him, one of them, dated June 20th, having been made out in the sum of $216.09, which check was not really delivered to Scarmazzo excepting for the purpose of obtaining his endorsement to the order of the American Home Building Products, a company a^iliated with and controlled by the same management as that of the respondent, said company having allegedly furnished the materials used on the job in question.

If the relationship between Scarmazzo and the petitioner had been that of a partnership each would have been entitled to one-half of the net proceeds arising from the contract; whereas, the undisputed proof is that the petitioner made no claim for anything paid on account of the alleged contract after the time he was injured, and neither did Scarmazzo recognize any right on his part to make any such claim, or to turn over or account for any further sums. The fact that all of the checks in question were made out to Scarmazzo and none to ITutchinson is further indication of the fact that the respondent did not consider that the work in question was being done by reason of a contract between it and Hutchinson and Scarmazzo as partners. The alleged contract price does not represent a meeting of the minds of the respective parties. The figures were computed by Gross, an agent of the respondent corporation, and, in my opinion, were simply used as a part of the scheme whereby it was to appear that the petitioner and Scarmazzo were, as a matter of fact, independent contractors, so as to avoid the cost of carrying compensation insurance and to evade the provisions of the -Social Security Act and possibly other laws.

I find from the evidence that the actual relationship between the petitioner and the respondent was that of employee and employer, and, therefore, affirm the judgment of the Workmen’s Compensation Bureau.

The evidence in this ease is somewhat akin to that existing in the case of Wadge v. Crestwood Acres, Inc., 20 N. J. Mis. R. 186, opinion by Judge McGrath in the Common Pleas Court of Union County, and much of what the learned judge said with reference to the case considered by him is applicable in this case.

It is, therefore, on this 10th day of February, 1943, ordered that the case be remanded to the Workmen’s Compensation Bureau for the purpose of fixing the temporary and permanent disability and the allowance of counsel fees for the work done in the Workmen’s Compensation Bureau; and

It is further ordered that application for counsel fees and costs in the Common Pleas in connection with this appeal is hereby reserved to the appellee, such application to be made subsequent to the entry of the rule for judgment entered in the Court of Common Pleas from the said Workmen’s Compensation Bureau.


author: Rosecrans, C. P. J.

text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ESTATE OF EDWARD NIXON, DECEASED.
    Submitted March 17, 1943
    Decided March 24, 1943.
    Proctors for the appellant, William Nixon, Lewis S. Beers and William P. Tollman.

    Proctors for the executor and respondent, Praneis L. Thompson and for Jeanne Lommason, legatee, By man Herr and Wesley L. Lance.

    Proctors for Delilah Aagaard and Harriet Little, legatees, Wilbur M. Bush and W. Beading Qebhardt.

    Proctor for Carrie M. Nixon, guardian ad litem of Joseph Nixon, residuary legatee, Claude B. Code.

    Por Grace Nixon, legatee, and for Grace Nixon, administratrix of the estate of Donald L. Nixon, deceased, Thomas Kelly, Jr.

    Proctor for the surrogate as guardian ad litem of Donald Nixon, Grace Helen Nixon and Charles Nixon, minor ehil- • dren of Grace Nixon, and proctor for William Nixon, in military service, Andrew Varga, Jr.

   Rosecrans, C. P. J.

This is an appeal from probate in common form of a purported will of Edward Nixon, deceased. The contention of the appellant is that the will was the product of undue influence or fraud exerted upon the decedent by his attorney, Francis L. Thompson, and the appellant challenges the “very existence” of the document as a will.

This paper-writing is dated August 22d, 1942. The testator, Edward Nixon, died on November 6th, 1942, approximately two and one-half months later. He was about seventy years of age. He could neither read nor write, hut could sign his name. He left him surviving as his only heirs-at-law and next of kin two half sisters and a half brother, William Nixon, who was not mentioned in the will and who takes this appeal. The value of the estate is estimated to be approximately $50,000. The will provides the following specific legacies:

Hoy Beers, a nephew ........................... $500
Joseph Nixon, a nephew........................ 1,500
Jeanne Lommason, secretary of. Mr. Thompson, for “many favors and courtesies”.................. 750
Francis L. Thompson, described as “Attorney at Law of New Jersey, my most reliable and trusted friend” 2,500
Harriet Little, a half sister ..................... 3,000
Lila Aagaard, a half sister ...................... 3,000

The attorney, Francis L. Thompson, was appointed sole executor.

Mr. Thompson was the deceased’s attorney from the time he began the practice of law in 1934. He was confidential adviser to the testator; he drafted the will which was typed in his office, by his secretary, Jeanne Lommason, a legatee; he procured the witnesses, one of whom was his mother and the other a client; he was a beneficiary and retained the will in his custody until after the testator’s death.

Hnder these circumstances “it is clear that a presumption of undue influence has been raised, and that the burden of overcoming the presumption and proving that the will was a spontaneous act of the testator was thrown upon” Mr. Thompson. *In re Bartles, 127 N. J. Eq. 472; 13 Atl. Rep. (2d) 642; In re Smalley, 124 N. J. Eq. 461; 2 Atl. Rep. (2d) 321; *126 N. J. Eq. 217; 8 Atl. Rep. (2d) 296; In re Romaine, 113 N. J. Eq. 477; 167 Atl. Rep. 683; *115 N. J. Eq. 172; 170 Atl. Rep. 16; In re Colton, 11 N. J. Mis. R. 410; 166 Atl. Rep. 521; *115 N. J. Eq. 327; 170 Atl. Rep. 610; In re Cooper's Will, 75 N. J. Eq. 117; 71 Atl. Rep. 676; *76 N. J. Eq. 614; 75 Atl. Rep. 1100; In re Sparks' Case, 63 N. J. Eq. 242; 51 Atl. Rep. 118; Kocher's, N. J. Probate Law 162, &c.; Waltzinger’s, N. J. Probate Practice 305, &c.; Clapp’s, Wills and Administration in N. J., § 34.

This presumption may be overcome by testimony which “must be impeccable and convincing,” In re Morrisey’s Will, 91 N. J. Eq. 480; 111 Atl. Rep. 26; and calls “for a complete vindication of the beneficiary’s conduct” so that the court may be satisfied from all the evidence that the will “expresses the untrammeled wishes of the maker,” In re Colton, supra. The testimony must be credible and convincing, In re Neuman, 132 N. J. Eq. 7; 26 Atl. Rep. (2d) 499. Upon such a presumption arising there is presented “a matter which excites the judicial mind to suspicious scrutiny,” *Rusling v. Rusling, 36 N. J. Eq. 603. The charge of “undue influence embraces fraud” and considerable reliance must be placed upon inferences from the proofs, and the decision depends “in each case very much on the special facts and surroundings which that ease presents.” Lynch v. Clements, 24 N. J. Eq. 431.

With the foregoing rules of law as a guide, the examination of the evidence is approached.

Francis L. Thompson is an attorney-at-law with offices at Phillipsburg and Haekettstown in Warren County. Edward Nixon, the deceased, lived all his life near Phillipsburg. Thompson was acquainted with Nixon before being admitted to the bar and he testified that he had acted as his attorney and adviser in numerous matters over the years. In the year 1940 Thompson had drawn a will for Nixon, and this will had been placed by the testator after execution in a safe ■deposit box which he maintained in the Phillipsburg Trust Co., where it was found when the box was opened after his death. This will left nothing to Thompson nor to his secretary. Thompson states that he drew another will for Nixon in 1941 which Nixon later tore up. Thompson testified that Nixon came to his Phillipsburg law office at about 11:45 on Saturday morning, August 22d, 1942, and asked Thompson to draw a will for him. Thompson called Miss Jeanne Lommason, his secretary and stenographer, to his inner office and dictated briefly the principal clauses of the proposed will. Thompson said that he used no form book while dictating and had no copies o£ Nixon’s previous wills for reference. Miss Lommason produced a 1942 diary of Mr. Thompson’s which was habitually kept on his desk for his use. This diary contained penciled shorthand notes on several pages which Miss Lommason read in evidence. These notes did not represent the complete will but only parts of some oE the clauses. Miss Lommason testified that from her experience she was able to satisfactorily complete the will. No corrections were necessary. Her only legal experience at that time had been a year and a half in Mr. Thompson’s office since graduating from high school. She stated that although she had typed quite a number of other wills during this time that this was the only one in which she had used Mr. Thompson’s diary in taking her notes. On all other occasions her regular stenographer’s notebook had been used. She also testified that the “favors and courtesies” which she had rendered the deceased were only such as arose in the conduct of the office and the client’s business.

While Miss Lommason was typing the will, Mrs. Laura Thompson, mother of the attorney, came to her son’s office on a trifling personal errand. During this time there also came to the office one Alden Carpenter, of Hackettstown, a client of Thompson’s. These two were the subscribing witnesses. Another visitor during this period was Owen Jones, of Belvidere, also a client of Thompson’s, a social friend and former neighbor. It was testified that these three persons came to the office somewhere between 2:00 and 2:30 P. M. Thompson did not confer with them because he was busy in his private office. When Miss Lommason completed the typing of the will, she placed it on her desk in the outer office and left for the day. At about 3 :30 p. m. Thompson came from his private office and greeted the aforementioned people who were assembled in the outer office together with Edward Nixon. Thompson testified that he was preparing to read the will to Nixon when someone knocked at the door. He excused himself to talk with another client, suggesting that Carpenter read the will to Nixon. Upon Carpenter’s refusal to do so, Thompson asked his mother but she also refused. He then requested Jones to read the will which Jones did. The reading took place in Thompson’s private office but Thompson was not in the room. Thompson, on cross-examination, stated that he was unaware at the time that Nixon could neither read nor write. Why it then seemed necessary for someone to read the will to Nixon was not explained. Upon conclusion of the reading, Thompson reappeared and asked Nixon if the will was satisfactory and upon receiving an affirmative answer, it was executed. It was about four o’clock when Nixon left the office, followed shortly thereafter by the others. Thompson testified with regard to his legacy that he supposed that Nixon desired to leave something to him in appreciation of his efforts in doing a hundred and one legal tasks for which he had never charged. Thompson said that Nixon wanted to leave something to Miss Lorn-mason because she was “a nice girl.” He also stated that he had been indebted to Nixon in the past in the amount of $2,500 and that he still owed $1,600 on another loan from Nixon.

Examination of the will shows that the pages are not numbered nor are they individually initialed or signed by the testator as is commonly done.

On motion of the appellant, the subscribing witnesses were excluded from the court room and were examined out of the hearing of each other and of the other witnesses. The similarity in the testimony of those present at the execution of the will is surprising. Each stated that there had been no discussion of the case nor of their proposed testimony among one another nor with Mr. Thompson nor with anyone else. On Thompson’s being recalled after they had testified, he said he had not discussed the case in particular with them but only in a general way, advising them that they would be called. It was, however, later brought out that the witnesses were examined on the day of the hearing by Thompson and his counsel. The witness, Carpenter, said he did not telephone Thompson’s office for an appointment but just dropped in. This contradicted the specific statements of both Mr. Thompson and Miss Lommason that he had telephone on Friday or Saturday for an appointment. The witnesses had each remembered every detail, even to the knock on the inner office door which caused Thompson to leave the room during the reading oE the will.

Thompson testified that he did not retain a copy of the 1940 will which was found in the safe deposit box, nor of the 1941 will which had been destroyed. An examination of the two existing documents discloses a marked resemblance between them, with the cardinal exception that no bequests were made to Thompson or his secretary in the earlier will. Aside from the similarity in the shorter and more simple paragraphs, it appears that the second paragraph of the 1942 document is exactly the same in wording and punctuation, as the 1940 will. It reads:

“Second—I give and bequeath unto Eoy Beers, son of Flora Beers, deceased, the sum of Five Hundred Dollars ($500.00) to him, his heirs and assigns forever; with this proviso, in the event the said Boy Beers should predecease me, then in that event, I order and direct that the aforesaid sum of Five Hundred Dollars ($500.00) is to become a part of the corpus and residue of my estate.”

Miss Lommason reading her shorthand notes from the diary said that Mr. Thompson had only dictated:

“Boy Beers, son of Flora Beers $500. If he dies it becomes a part of the corpus of the estate.”

The legal phrasing and composition of the paragraph were hers. The tenth paragraph of the 1942 document bears a striking resemblance to paragraph five of the earlier will. This paragraph contains sixteen lines and sets up a life estate with a remainder over. The eleventh paragraph of the 1942 will consists of ten lines and provides a prohibition against contest by the beneficiaries. It is practically identical, word for word and in punctuation, with paragraph six of the 1940 will. The twelfth paragraph of the 1942 document consists of seven lines and provides for the executor’s powers, and the last paragraph of five .lines, appoints the executor with a direction that no hond shall be required, &c.’ These latter paragraphs are exactly the same as in the earlier will except that Thompson’s name is substituted as executor in the 1942 instrument. Thompson’s testimony that in drafting the document under examination he did not have the benefit of referring to copies of the former wills nor to a form book, would indicate an unusual memory. It is difficult to comprehend how his secretary, Miss Lommason, could have composed and typed so similar a document when she did not have a copy of the earlier will and when according to her testimony Thompson did not even dictate all the clauses but only referred to some of them sketchily, leaving much of the phrasing to her. She had no knowledge of how the 1940' will was worded'or punctuated because she was not employed in Thompson’s office when it was prepared. She testified that" she did not know of it.

The appellant also produced a number of friends and intimates of the deceased who testified to the effect that after the execution of the 1940 will to the day before his death on November 6th, 1942, Nixon had told them that his will was in his safe deposit box with other valuable papers at thePhillipsburg Trust Co. These witnesses were disinterested. One was Dayton Little who acted as clerk for Nixon for-years, reading his documents for him and assisting him with his papers generally. Another was Mrs. Elsa Bouder, who' lives on a neighboring farm. She testified that even on the-night before he died, Nixon detailed his property holdings and said that his will was in the deposit box in the bank. Miss Margaret Barber, a person of highest standing and of unimpeachable reputation in the community testified that she had known Nixon practically all her life and that he often visited her at her home and confided in her his financial' affairs. She saw him last just two weeks before his death. On that occasion Nixon told her something of the provisions-of his will and stated that the document was in his lock box in the Phillipsburg Trust Co.

An employee of the bank produced records to show that Nixon entered his safe deposit box No. 350 on Saturday-morning, August 22d, 1942—the very morning on which it was claimed that he went to Thompson’s office to have the present document prepared. The hank records further show that Nixon entered this box four times thereafter at intervals of about every two weeks until his death. There was no testimony offered to the effect that Nixon had ever alluded to the document in Thompson’s possession as his will.

The decision in the Bartles case, supra, turned largely on the fact that the testator had retained custody and control of his will after execution. In the instant ease, custody of the document was never in the testator but always with the attorney. If he had intended to make the subsequent 1942 document his last will, and understood its nature, is it not likely that he would have destroyed the 1940 will which remained in his box, in the same manner as he did the will drawn in 1941 ? Applying the words of the Court of Errors and Appeals in the Bartles case to the 1940 will found in the safe deposit box “it would have been the simplest thing in the world for testator to destroy it if he was not satisfied with it.”

The reported cases in the courts of this state in which the presumption of undue influence was applied, do not seem to differentiate between undue influence exercised by a lawyer or by a layman. The question as to whether or not there is a distinction seems not to have been heretofore raised or decided. Of the cases cited herein, those of Neuman, Smalley, Colton and Lynch involve undue influence exerted by a layman; in the Bartles, Eomaine and Cooper cases a- lawyer was the confidential adviser involved. A more convincing explanation of all the circumstances surrounding the execution of a will should be expected of a lawyer than of one not a member of the bar. Particularly so in his dealings with an illiterate client. Vice-Chancellor Kays in the recently reported case of Schenck v. Davis, 133 N. J. Eq. 81 (not a will contest), pertinently observed:

“Courts have laid down a rule of 'strict scrutiny’ relative to transactions between attorney and client. The rule is intended to protect a client against a 'strong influence’ which arises from the confidential relationship between a lawyer and his client.”

See, also, Dwyer v. Anderson, 113 N. J. Eq. 210; 166 Atl. Rep. 293 (not a will case), for a statement of the responsibility of an attorney.

The confidence which must necessarily be reposed in an attorney by a client requires a-higher standard of integrity than is expected of a layman. The bar demands and the public has the right to expect that a lawyer realize the sacredness of his trust and the necessity for irreproachable professional conduct. A case such as this demands an explanation made with convincing candor. It is the solemn obligation of the courts to uphold and enforce these principles.

However, without placing any added burden on Mr. Thompson by reason of the relationship of attorney and client, the evidence considered as a whole renders his denial of complicity 'in the making of this will' unconvincing. Consideration of all the evidence and observation of the witnesses and their demeanor on the stand leads to the conclusion that the burden cast upon the proponent of overcoming the presumption of undue influence by credible and convincing evidence has not been met. Probate must be denied. The order appealed from is reversed and the letters testamentary revoked. Counsel may submit a decree in accordance with this opinion on three days’ notice.


author: Lbyden, C. C. J.

text:
    Passaic County Circuit Court.
    ARTHUR J. O’DEA, TRUSTEE IN BANKRUPTCY FOR WEBBER MOTOR CO., PLAINTIFF, v. UNIVERSAL CREDIT COMPANY, DEFENDANT.
    Decided March 25, 1943.
    Por the plaintiff, Wallace S. DePuy.

    Por the defendant, Koplin & Ryan.

   Lbyden, C. C. J.

The defendant’s motion to strike the reply as insufficient raises a point of law namely, the interpretation of the statutes, R. S. 46:28-5 and R. S. 46 :28-5.1; N. J. S. A. 46:28-5 and 46:28-5.1, the determination of which, the parties agree, is dispositive of the controversy with judgment to the successful party on the pleadings.

The question of law presented is stated by the parties in the stipulation of facts as follows: are the chattel mortgages null and void and invalid because they do not have annexed thereto an affidavit or affirmation made and subscribed by Universal Credit Company, the holder thereof or by its agent or attorney, stating the considerations of the said chattel mortgages and further stating as nearly as possible the amounts due or to grow due thereon?

Prom the stipulated facts it appears that for some time prior to March,'1940, the Webber Motor Co., Inc., of West-wood, Bergen County, Hew Jersey, was engaged in the business of storing, shipping and selling goods, merchandise and chattels, to wit, new and used motor vehicles and trailers.

On March 13th, 1940, the- Webber Motor Co., Inc., and the defendant, Universal Credit Company, duly executed a statement of intention to execute and accept a series of chattel mortgage transactions and the said statement was recorded in the office of the clerk of the county of Bergen on June 12th, 1940.

Between June 12th, 1940, and May 18th, 1942, the six chattel mortgages in question were made, executed and delivered by the Webber Motor Co., Inc., to the Universal Credit Company. The Universal Credit Company advanced the sum- of money recited in each -of the mortgages and it is admitted that- at the time of the execution and delivery of the several mortgages the vehicles described therein were in the possession of the Webber Motor Co., Inc., and remained in its possession until taken by the Universal Credit Company; that the several chattel mortgages were not recorded in the office of the clerk of the County of Bergen, and that the mortgages do not contain affidavits or affirmations made and subscribed by the Universal Credit Company, its agent or attorney, stating the considerations therefor and as nearly .as possible the amounts due or to grow due thereon; that at the time of the execution and delivery of the mortgages and at the time of the taking of the said motor vehicles by the Universal Credit Company there were in existence other unsecured creditors of the Webber Motor Co., Inc.

On the 18th day of May,T942, the Webber Motor Co., Inc., was adjudicated a bankrupt on petition filed by creditors of said company and the present plaintiff is its trustee in bankruptcy.

The plaintiff’s complaint is in replevin, seeking the possession of the motor vehicles described in the several chattel mortgages, now admittedly in the defendant’s possession. The answer denies the plaintiff’s right to possession and it affirmatively asserts that defendant is entitled thereto. The reply attacks the validity of the chattel mortgages.

On the facts presented the chattel mortgages are void as against creditors of the Webber Motor Co., Inc., and the present plaintiff. A chattel mortgage not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged is void as against creditors of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, (1) has annexed thereto an affidavit or affirmation made and subscribed by the holder of such mortgage, his agent or attorney, stating the consideration therefor, and, as nearly as possible, the amount due or to become due thereon, and (2) is recorded in the proper public office. Such is the mandate of the statute, R. S. 46 :28-5; N. J. S. A. 46 :28-5. The purpose of the familiar affidavit or affirmation of consideration is to prevent fraud; that of recording to give notice, actual or constructive. Where, however, the parties contemplate a series of chattel mortgages to be issued by one as a dealer on his stock in trade, obedience to the command of the statute with reference to the recording of each chattel mortgage is rendered unnecessary, if prior to the execution and delivery of any such mortgage, or series thereof, the proposed mortgagor and mortgagee execute under seal, acknowledge and record in the proper public office, a statement setting forth the location of the chief place of business of each of the parties, the fact that the mortgagor may execute and the mortgagee may accept a series of chattel mortgage transactions arising out of the business of the mortgagor, and a general description of the type of chattels to be made the subject of such mortgages, R. S. 46:28-5.1; N. J. S. A. 46:28-5.1. A substitute method of giving notice of the existence of a particular lien is therein provided by requiring the holder of any such mortgage so executed to disclose on proper demand whether any chattel described in the demand is subject to the lien of any such mortgage.

Nothing can be found in the context of the statute, R. S. 46:28-5.1; N. J. S. A. 46:28-5.1, which would justify the conclusion that its provisions were intended to or do obviate the affidavit of consideration as an indispensable requisite to a valid chattel mortgage. Recording fees are saved and a new method of giving notice of the existence of a particular mortgage lien is provided but each chattel mortgage, executed and delivered under its provisions, must have annexed the affidavit of consideration pursuant to R. S. 46:28-5 to be valid against the creditors of the mortgagor.

The reply is, therefore, sufficient in law and judgment may be entered in favor of the plaintiff, Arthur J. O’Dea, trustee in bankruptcy for Webber Motor Co., Inc., and against the defendant, Universal Credit Company, for possession of the motor vehicles demanded.


author: Hartshorn®, C. P. J.

text:
    Essex County Court of Common Pleas.
    MAX FISCHBEIN, PETITIONER-APPELLEE, v. REAL ESTATE MANAGEMENT, INC., AND COMMERCIAL CASUALTY INSURANCE COMPANY, RESPONDENTS-APPELLANTS.
    Decided April 1, 1943.
    Por the petitioner-appellee, David Roslcein (Harry (John).

    Por the defendants-appellants, Henry M. Grosman (Isidor Kalisch).

   Hartshorn®, C. P. J.

The issue here is whether payments by the employer to the employee toll the two-year statutory bar (R. 8. 34:15-51), such payments having been in an amount equal to the employee’s wages previous to the accident and paid weekly, as the wages were. Nor has this issue been previously decided in New Jersey under the present statute; while in other jurisdictions, the decisions aie variant, due both to differences in the statutes themselves, in the philosophic approach thereto, and in the facts.

We turn to the facts, so far as they bear on such issue, it being substantially agreed on all sides that an accident occurred, of which the employer had notice. Petitionerappellee, the employee, a man of fifty-four, had for some years been branch manager of the respondent-appellant-employer’s real estate business in Newark, bis work being both in the office and outside, including the physical inspection of numerous apartment houses and other buildings managed by his employer. On April 17th, 1939, while making such. inspections, in walking up a four-story, walk-up apartment, lie suffered a heart attack, which recurred shortly thereafter while he was performing similar duties. This was diagnosed as an acute coronary occlusion, from which he has never recovered and was probably an aggravation of a preexisting latent condition.

After an extended absence from work, he attempted to resume some of his duties, but was only able to work an hour or so a day until January, 1941, when his condition became so acute that he was ordered by his doctor to remain away from work entirely, and he went to Florida to regain his health. There he suffered a relapse, was compelled to return to Newark, and remained in bed for several months. Subsequently, he was able again to work intermittently for a brief period each day until January 30th, 1942, when he was discharged by his employer. During all this- period his employer continued to pay him regularly each week an amount equal to his previous weekly salary, and on occasion, certain additional amounts for. certain minor, extra services. (Record, page 13.)

Since the accident occurred almost three years before the petition was filed, the petition is out of time, unless the above payments constitute “an agreement for compensation * * * between the employer and the claimant,” as statutorily defined. For, a petition “filed within two years after the failure of the employer to make payment pursuant to the terms of such an agreement” is timely. (B. B. 34:15-51.) It is settled that the “compensation” referred to in such section means statutory compensation, not the compensation or remuneration which is paid for services performed. Pathe Exchange v. McGovern, 3 N. J. Mis. R. 652; 129 Atl. Rep. 468; affirmed, 102 N. J. L. 443; 131 Atl. Rep. 923; Betsy Ross Ice Cream Co. v. Greif, 121 N. J. L. 323; 22 Atl. Rep. (2d) 511.

In DuPont Co. v. Spocidio, 90 N. J. L. 438; 101 Atl. Rep. 401, it was held that where the employer, after an accident to his employee, continued to pay the latter substantially half his weekly wages, such payments evidenced an implied agreement between the two as to the payment of the statutory compensation. But in 1918, shortly after this decision, this section of the act was changed, and it was thereafter held that, in the light of the statute as amended, the only agreement as to compensation, which would toll the statutory bar, was a formal written one, not the mere informal one which existed in the Spocidio case. Paths Exchange v. McGovern, supra. After the rendering of this latter decision, and in an evident desire to liberalize the situation, the statute, as amended in 1918, was further amended to provide that: “Any payment made in accordance with the provisions of article 2 of this chapter (R. S. 34:15-7, et seq.) shall constitute an agreement for compensation.” (Pamph. L. 1931, ch. 280, p. 708, § 1.) (R. S. 34:15-51.)

It would thus seem that our legislature in 1931 determined to make the law revert to its status as defined in the Spocidio case, to wit, that the payment by an employer of half wages to an injured employee, who was laid up by such injury, should bo considered to be an agreement for statutory compensation sufficient to toll the statutory bar. Nor is Randolph v. Hamersley Manufacturing Co., 94 N. J. L. 530; 111 Atl. Rep. 15, to the contrary. For the Randolph ease “was decided before many of the [statutory] changes above noted” (Betsy Ross Ice Cream Co. v. Greif, supra), and specifically before the enactment of the amendment which made “payments” in accordance with the statute sufficient to toll the statutory bar. In addition, the wages paid in the Randolph case were strictly wages, as they were paid solely while the employee was working.

But respondent employer argues that the rule in the Spocidio case does not apply in view of the latest statutory amendments and of the fact that here the payments equalled the full wages, and the employee was working at least part of the time. Consequently, both sides have referred to numerous decisions of similar character throughout the country. To these we briefly refer. In California, Louisiana and Missouri, the courts seem to have laid down an extremely liberal rule, holding in practically all circumstances that the employer’s payments of an amount equal to wages must be considered as payments of statutory compensation sufficient to toll the statutory bar. London Guaranty Co. v. Ind. Comm., 268 Pac. Rep. 670 (Cal.); Bulger v. Ind. Acc. Comm., 24 Id. (2d) 796 (Cal.); Morrison v. Ind. Acc. Comm., 85 Id. (2d) 186 (Cal.); Carpenter v. duPont, 194 So. Rep. 99 (La.); Lawson v. Capital City Co., 52 S. W. Rep. (2d) 421 (Mo.); McEneny v. Kresge, 62 Id. (2d) 1067 (Mo.).

On the other hand in Colorado, Delaware, Georgia, Illinois and Pennsylvania, the principle adhered to seems to be that it is a question of fact to be determined in the light of the legislative intention. Comerford v. Carr, 284 Pac. Rep. 121 (Col.); Bethlehem Shipbuilding Co. v. Mullen, 119 Atl. Rep. 314 (Del.); New York Indemnity Co. v. Allen, 171 S. E. Rep. 191 (Ga.); Marshall Field v. Ind. Comm., 137 N. E. Rep. 121 (Ill.); Somerton v. Bell Telephone, 169 Atl. Rep. 579 (Pa.); Chase v. Emery Manufacturing Co., 113 Id. 40 (Pa.); Elkins v. Cambria Library, 82 Pa. Super. 144.

While, as previously stated, our courts do not seem to have ruled on this question under the statute in its present form, they have, nevertheless, had occasion to construe the above statutory clause in passing on the question of whether the payment of “employee aid,” otherwise than by the payment of wages or their equivalent, will constitute “payment made in accordance with the provisions of [the Workmen’s Compensation Act]” so as to toll the statutory bar. And our courts have naturally, in so doing, applied the settled, liberal and remedial construction of the act by holding that such payments will be so construed under any of the following situations: (1), when medical aid was paid by the employer (Betsy Ross Ice Cream Co. v. Greif, supra); (2), when compensation was paid by mistake under the Massachusetts act instead of under the Hew Jersey act (Sweet v. Austin Co., 12 N. J. Mis. R. 381; 171 Atl. Rep. 684); (3), when compensation was paid on an erroneous mathematical basis. (DiMoglio v. Slonk Construction Co., 121 N. J. L. 366; 2 Atl. Rep. (2d) 470; affirmed, 122 N. J. L. 379; 5 Atl. Rep. 691.) Indeed, in the last of the above cases which ruled on this section of the statute, that of Betsy Ross Ice Cream Co. v. Greif, supra, the court says: “The legislative meaning seems clear to put all kinds of employee aid on the same basis * * *. There seems no reason, if a payment he made which eonld have been required under the act, to limit the period in which a petition may be filed, by a judicial construction which defeats the interests of the workman.”

Further, our courts have ruled on the effect of the payment of wages under other sections of the "Workmen’s Compensation Act. And here, the differing results definitely indicate the view of our courts that it is the facts that count in the light of the remedial legislative intention. For instance, where an employee was injured, but shortly thereafter continued to work regularly for his employer for a year and more, being paid full wages during that period, it was held that these payments were strictly the payment of wages, and not the payment of compensation under the act which could be credited on the disability award. (De Zeng Standard Co. v. Pressey, 86 N. J. L. 469; 92 Atl. Rep. 278; affirmed, 88 N. J. L. 382; 96 Atl. Rep. 1102. See, also, Purcell v. International Motors, 91 N. J. L. 707; 104 Atl. Rep. 894.)

On the other hand, it has several times been held that payment of wages, or the equivalent, should be considered as the payment of statutory compensation during the periods when they were paid, so that they should be credited on the disability award under the act. For instance, in Blackford v. Green, 87 N. J. L. 359; 94 Atl. Rep. 401; affirmed, 89 N. J. L. 357; 100 Atl. Rep. 1069, the court had before it a case where the employer “paid the petitioner $10 a week for 41 weeks subsequent to the injury. The amount to which he was entitled under the statute was $5 a week. The defendants were credited with $5 a week for 39 weeks.” In other words, the court below held that, barring the first two weeks, during which no weekly compensation was payable, one-half of the moneys paid as wages was to be considered as payment of compensation under the act, and this “although it was not questioned that he [the employee] could not earn the full 10.” Our Supreme Court, in affirming the award, said, citing the De Zeng case, supra, “In so far as the money was paid for his labor, the prosecutors [employers] were entitled to no credit. In so far as it was paid from a spirit of benevolence, the same line of reasoning would be applicable and no credit should be allowed. * * * While he [the trial judge] might have found that the subsequent payments [after the first two weeks] were made as compensation for the petitioner’s labor, or as a gratuity from benevolent motives, it was a fair presumption that they were made in discharge of the legal liability, so far as there was such liability, and that payments in excess of that liability were either compensation for labor or benevolence.” For it would seem but a fair presumption that payments, made by one under a legal obligation to make compensation, should be deemed made in compliance with such obligation rather than otherwise, in the absence of clear evidence to the contrary. (Dubies v. Manufacturers Liability Insurance Co., 96 N. J. L. 107; 114 Atl. Rep. 309; affirmed, 97 N. J. L. 567; 117 Atl. Rep. 926.) In Beach v. Sullivan, 13 N. J. Mis. R. 582; 179 Atl. Rep. 847, our Supreme Court held that the payment of wages to the injured employee, so far as they were not paid by him to a substitute for the employer’s benefit, were to be considered as disability compensation and credited on the award.

Of course, the fact that in all these cases the employer was contending that the payments were compensation under the act, whereas here he is contending the contrary, can make no difference. The point is that our courts have repeatedly held that the payment of wages, or their equivalent, do or dp not constitute payment of compensation under the act, depending on the surrounding circumstances. And it will further be noted that the facts in the present ease, except for the converse situation of the parties above stated, are essentially on all fours with those in the case of Blackford v. Green, supra. There, as here, “it was not questioned that he [the employee] could not earn the full” (amount paid). There, as here, the amounts paid far exceeded the amount of the statutory liability. Hence, the “presumption” would likewise seem “fair,” here as there, that such payments “were made in discharge of the legal liability, so far as there was such liability, and that payments in excess of that liability were either compensation for labor or benevolence.”

Indeed, if we follow not simply the above liberal rule laid down by so many courts in our sister states, but the principle enunciated by our own Supreme Court in Betsy Ross Ice dream Co. v. Greif, supra, that the payment of “all kinds of employee aid” will “extend the term to file the petition,” the above “fair presumption” of fact, referred, to in Black-ford v. Green, supra, becomes a presumption of law, definite and final.

But even considering the presumption merely as one of fact, we find no clear and unambiguous evidence by which it is overcome. True, the employer’s representative states they did not talk of accident. But the employer was told “about the entire happening of the accident” (Record, page 82), and so, must be presumed to have known that he was dealing with an accident, and that payments of wages, or their equivalent, to one who could not fully earn them, due to such accident, had been repeatedly credited by our courts as the payment of statutory compensation. True, the employer stated that he did not himself consider the payments to be compensation for an accident. (Record, page 119.) But there is no evidence that he communicated this thought to the employee, who, likewise, must not only be presumed to know the law, but was entitled to act thereon and remain quiescent, as long as statutory compensation, and more, was being paid him. True, the employer contends that the payments were made as a matter of business policy, because the employee was sick. But at the same time he admits he knew this sickness, the heart disease, occurred under circumstances which constituted a.n accidental disability, and yet he paid him. (Record, page 123.)

And since, after all is said and done, we are dealing with an implied “agreement for compensation,” as evidenced by “a payment,” it is the outward acts of the parties, not their unknown intentions which must control. Thus, in the absence of evidence that the employer communicated to the employee his intention that these payments were not to be considered statutory compensation, the “fair presumption,” that they were to be treated as statutory compensation, must still control.

Indeed, considering the matter practically, any other construction would both put an unreasonable burden upon the employee, and enable an unscrupulous employer to take unjust advantage of Ms employees. Por if an employee is being regularly paid by Ms employer after an accident, not simply the statutory compensation, but double or treble that amount, and at a time when he cannot possibly render the equivalent services, he would certainly be considered an ingrate to insist upon his employer’s telling him why the payments were being made, and that they were a matter of legal obligation. Indeed, such insistence would be more than apt to result in a speedy termination of his employment. On the other hand, if an employer could, by simply paying wages, or their equivalent, lull his employee into a feeling of security till after the two-year period had expired, it would be a simple matter for unscrupulous individuals, in eases of serious accidents, to escape their statutory responsibilities by the payment of a relatively paltry sum. (DuPont Co. v. Spocidio, supra.)

Hence, according to reason, authority and the spirit of the act itself, the payments by the employer here, who admittedly acted in all good faith, must be held to be payments of compensation under the act, which toll the bar of the statute. The petition thus having been filed in time, the award below which gave credit for the payments made to the extent they were statutory compensation, will be affirmed, and a determination may be entered accordingly.


author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    PETER MARROCCO, Jr., ADMINISTRATOR OF THE ESTATE OF ANGELO LEOMBRUNI, DECEASED, PETITIONER-APPELLANT, v. ALLIED TEXTILE PRINTERS, INC., RESPONDENT-APPELLEE.
    Decided April 6, 1943.
    For the petitioner-appellant, 'Ward & McGinnis.

    For the respondent-appellee, John Pom,fret, Jr.

   Delaney, C. P. J.

The petition in the above stated matter was dismissed in the Workmen’s Compensation Bureau, without a hearing on the merits, on the ground that the petitioner, as general administrator of the estate of Angelo Leombruni, deceased, had no footing to file a petition on behalf of the dependents—a widow and child—of the decedent.

The law seems to be to the contrary.

In Conners v. Public Service Electric Co., 89 N. J. L. 99; 97 Atl. Rep. 792, the Supreme Court said:

“This is a workman’s compensation suit. The suit is brought for the benefit of the father, mother and sister of the deceased, all of whom claim to be dependents. * * *
“The fourth point raises the question whether the action was properly brought by the administrator of the deceased. As to this counsel relies on section 19 of the act, which provides that, where no executor or administrator is qualified, the judge shall by order direct payment to be made to such person as would be appointed administrator of the estate of the deceased, &c. The provision of the act plainly contemplates the institution of the proceeding by the executor or administrator of the deceased, where there is an executor or administrator, and, if there is none, by such person as would be entitled to administration. There is an administrator in the present ease, and plainly the suit was properly brought by him. See McFarland v. Central Railroad Co., 84 W. J. L. 435; 87 Atl. Rep. 144.”

In McFarland v. Central Railroad Co., supra—a workman’s compensation suit—Mr. Justice Garrison said: “By what-

ever name the proceeding may be called, it may properly be set on foot by the person to whom, under the nineteenth section of the act, payment is to be made, i. e., payment for the purpose of distribution.”

In Reimers v. Proctor Publishing Co., 85 N. J. L. 441; 89 Atl. Rep. 931, the petition was filed by the father of the decedent, an unmarried man.” The court declared: “Ho

executor or administrator qualified. We see no objection to the father instituting the proceeding.”

Bor section 19 in force when the above cited cases were decided, R. S. 34:15-21; N. J. S. A. 34:15-21, is now substituted, and reads: “In case of death compensation payments may be made directly to dependents of full age and on behalf of infants ,to the surviving parent, if any, or to the statutory or testamentary guardian of any such infant. The Workmen’s Compensation Bureau, on application or when a petition has been filed, may order such payments to be made to the administrator or executor of the decedent, or to such person as would be appointed administrator of the estate of the decedent.”

The concluding sentence of the last cited section leaves the matter, in its application to the circumstances of the instant case, precisely where former section 19 had placed it. The repealed and the operative sections differ, we think, in phraseology only, not in substance or effect.

Where the petitioner acts in the wrong character, the error, it may be added, is not hopeless. In Lazzio v. Primo Silk Co., 114 N. J. L. 450; 117 Atl. Rep. 251; affirmed, 115 N. J. L. 506; 180 Atl. Rep. 881; the petition was filed by Gladys Lazzio -as administrator ad prosequendum for the benefit of an adult incompetent daughter of the deceased.

The pertinent part of the opinion runs:

“It is next argued that the cause is improperly styled or captioned. That is so. The prosecutor sues as administrator ad prosequendum. This is improper. But this error is not fatal. The representative designation aforesaid may be treated as mere surplusage or, at all events, the proceedings may be appropriately amended. Martin v. Lehigh Valley Railroad Co., 114 N. J. L. 243.”

We think that the petitioner in the instant case, as general administrator of the deceased, has a right to bring the proceeding for the benefit of the alleged dependents of the deceased. An order may be entered setting aside the order of dismissal.


author: John 0. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDITH M. BURTON, PETITIONER, v. BOARD OF EDUCATION OF BOROUGH OF VERONA, RESPONDENT.
    Decided March 22, 1943.
    For the petitioner, Rilcer, Marsh & Shipman.

      For the respondent, William P. Braun.

   The case sub judice presents an issue of novel impression since a diligent search fails to reveal to date a reported decision analogous to the facts herein contained. It involves primarily the question of whether or not a school teacher injured in connection with a national rationing program can claim compensation from the Board of Education by whom she is legally employed.

The facts, as adduced before me, indicate that the petitioner had been employed for a great many years as a teacher of English in the high school operated by the Board of Education of the Borough of Verona. She admittedly has been teaching long enough to acquire tenure of office and her contract of employment (Exhibit P-2 for identification), which is in writing, is short and specific. By its terms, the respondent employed her to teach in the Verona public schools at a .salary specified. It requires that she hold, or produce before beginning her teaching, a valid permanent secondary teaching •certificate, and further constitutes an acceptance of the aforesaid employment with an agreement to faithfully do and perform the duties under the same and to observe and enforce the rules prescribed for the government of the school by the respondent.

On May 12th, 1942, she passed her immediate superior, Mr. Sampson, the principal of the high school, on the stairs in the school at 'which time he is quoted as saying “We will need you on gas rationing tonight. The assignments are on the bulletin board.” An examination of the bulletin board notice (Exhibit P-3) disclosed her name listed with various other teachers as well as ten or more lay people, the parents of pupils in the school system. These names were variously allocated for various periods of time under certain named schools, the petitioner being listed under Brookdalo Avenue School, 5:30 to 9:00. She reported at Brookdale Avenue School, which incidentally was not the school at which she was regularly employed, and after assisting in the gasoline rationing registration left the promises about 9 :00 p. m. and while proceeding down some outside steps leading to a driveway fell and fractured her right ankle. This, she claims, constituted a compensable accident.

I have carefully reviewed the various exhibits including P-1 and P-2, which were instructions to county and city superintendents and supervising principals issued by the New Jersey State Commissioner of Education on request of the United States Office of Education and the Office of Price Administration, and P-4, which was issued to the superintendents, supervising principals and principals of school districts in the County of Essex. Nowhere in any of the foregoing is there included any order or Instruction making it mandatory or compulsory for teachers to carry on the work outlined therein.

Our statute requires that personal injuries, in order to be compensable, must be the result of accidents arising out of, and in the course of, the employee’s employment. R. S. 34:15-7; N. J. S. A. 34:15-7. These elements must concur in order to entitle an employee to compensation. Kuropata v. National Sugar Refining Co., 16 N. J. Mis. R. 383; 199 Atl. Rep. 897; Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181. The petitioner advances Bird v. Lake Hopatcong Country Club, 119 N. J. L. 415; 197 Atl. Rep. 282, as authority for the contention that hep situation meets the prescribed test. In that case the court reiterated the original' pronouncements in Bryant v. Fissell, 94 N. J. L. 72; 86 Atl. Rep. 458, to wit:

“In order for an accident to arise out of one’s employment, it must have been a risk which, might have been contemplated by a reasonable person as incidental to his employment; and the risk is incidental to his employment when it belongs to or is connected with that which the employee is obliged to do, or is called upon to do in order to fulfill his contract of hire.”

In the Bird case a caddy, whose duties were general and included many items not directly connected with caddying, was injured when he fell from a tree from which he had been picking apples under the direct instructions and supervision of his superior. The case at bar presents no such situation. . Here was no indefinite, oral contract of employment for unskilled labor. There can be no question of employment by sufferance nor could there be any thought in the mind of the employee that failure to act would bring about the ill will or antagonism of her immediate superior and perhaps interfere with her future employment. She was adequately protected by a written contract of employment clearly defining her obligations as professional in character and also by tenure of office, the statutory protection of which is most specific. R. S. 18:13-16, et seq.; N. J. S. A. 18 :13-16, et seq. The activity in which she was engaged when the aceident occurred was not one related to beaching or any related subject-matter coming within the broad, general purpose for which the respondent was organized. It had its inception in one of the many national defense activities which have developed as 'necessary since Pearl Harbor. It presents a striking example of the distinction between the regimented slavery of a totalitarian state and the self-imposed discipline and voluntary co-operation of a free people. When it became evident to the national authorities that some control must necessarily be exercised over petroleum products in the eastern states, the assistance of the citizenry, and particularly of the members of the school systems, was requested in the registration of car owners. This request in turn was directly transmitted from the Commissioner of Education of our state in form of a letter addressed to city superintendents, county superintendents, supervising principals and helping teachers. The supervising principal of the respondent board in making up the list on the so-called assignment did not have every teacher in the system assigned but did include non-teacher volunteers in a number which he has variously estimated from ten to twenty-five.

Despite the protestations of the petitioner and her witnesses to the contrary, I am constrained to the conclusions that the activities of the petitioner on the occasion of her accident were in nowise contemplated as incidental to her employment; did not belong to and were not connected with that which she was obliged to do or called upon to do in order to fulfill her contract of hire; that it was not an extracurricular activity as a teacher but was a voluntary, patriotic undertaking accepted as a duty by all who participated whether teachers or lay people, a duty not to the Board of Education of the Borough of Verona, but a duty as citizens of the United States of America. It would be a sad commentary on the loyalty and patriotism of the teachers of the Verona high school if this determination should interpret the testimony of the principal, Mr. Sampson, that:

“I talked the whole program over with the faculty some time before that and got their reaction to it. It was agreed by us that we would accept whatever assignments were given to us by the supervising principals without question as part of our duties,” as a grudging acceptance of an addition to their legal obligations under their contract of hire without additional remuneration rather than the cheerful acceptance by free citizens of a voluntary obligation necessitated by the exigencies of war.

The court can well take judicial notice of the outstanding efforts made by teachers throughout our state. It is needless to even comment upon the same as the public press has from time to time editorially and otherwise commented upon this fact. They have frequently assisted in many projects.

In passing, I may comment on the response that every profession has made in connection with the national defense. Members of the legal profession can be found 4n many activities in which no thought of remuneration has played the slightest part. One thought, and only one thought, is paramount in the minds of all—an early victory, freedom from dictatorship, and the right to have our participation in the war effort continued on a voluntary basis without the danger of internment in a concentration camp should we refuse on any-occasion to respond to a request for assistance.

Having concluded that the petitioner was not injured in an accident which arose out of, during, and in the course of, her- employment with the respondent, * * * ordered that the petition be and the same is hereby dismissed.

Judgment to be entered in favor of the respondent.

John 0. Wegner, Deputy Commissioner.


author: Leyden, C. C. J.

text:
    Passaic County Circuit Court.
    GERALD F. JACOBSON AND ADRIENNE O. JACOBSON, PLAINTIFFS, v. FIRST NATIONAL BANK OF BLOOMINGDALE, A BANKING CORPORATION, DEFENDANT.
    Decided April 19, 1943.
    For the plaintiffs, Francis D. Plumb.

    For the defendant, J. Chester Massinger.

   Leyden, C. C. J.

The defendant moves for Judgment on the pleadings, asserting that the issues sought to be raised in the present action are res judicata by virtue of a final decree of the Court of Chancery and its satisfaction, in a proceeding between the same parties involving the same subject-matter. A resume of the controversy is necessary to an understanding of the problem.

In June, 1939, the plaintiffs were the owners of a plot of land in Oradell, Hew Jersey, on which they decided to erect a dwelling. To that end, through an intermediary, Mortgage Service Bureau, the plaintiffs and the defendant bank entered into a contract wherein the defendant agreed to lend and the plaintiffs to borrow $5,800 as an installment construction loan to be secured by a Federal Housing Administration mortgage. By the terms of the agreement 20% or $1,160 of the loan was to be paid when the roof was on the dwelling, 30% or $1,740 when it was brown plastered, and the balance of $2,900 upon completion. The first installment was advanced by the bank on July 24th, 1939. The second installment of $1,740 became payable on August 24th, 1939, and under the terms of the agreement the plaintiffs gave promissory notes to the defendant in the amount of each installment and a demand mortgage for $2,900, it being the intention of the parties to cancel the mortgage upon the completion of the building and the execution of a mortgage for $5,800. Through the machinations of the intermediary the plaintiffs did not receive the second installment. The bank refused to make further payment and thereupon the Chancery suit was instituted by the plaintiffs, alleging that they were without adequate remedy at law and praying that the bank :

(1) be enjoined from any action at law or in equity upon the demand notes and the mortgage of $2,900 then of record;
(2) that the mortgage be decreed to be canceled and no longer a lien upon the premises of the plaintiffs;
(3) that the bank be enjoined from assigning the notes and mortgage of $2,900;
(4) that it be decreed that the plaintiffs have received the sum of $900 in pursuance of the mortgage;
(5) that the agreement to lend the $5,800 be specifically performed; and
(6) for such other and further relief as may by the Chancellor be deemed equitable and just.

After hearing on bill, answer and proofs the Court of Chancery on the 26th day of May, 1941, ordered specific performance of the agreement to lend the $5,800, decreeing the immediate payment by the defendant of the second installment of $1,740 and retaining the cause with leave to the plaintiffs to apply for further relief to compel the defendant to pay the balance of the $5,800, upon proof that the conditions of the agreement regarding the final payment had been complied with; Jacobson v. First National Bank of Bloomingdale, 129 N. J. Eq. 440; 20 Atl. Rep. (2d) 19; affirmed on January 9th, 1942, 130 N. J. Eq. 604; 23 Atl. Rep. (2d) 409. The bank completed its part of the transaction and the decree of the Court of Chancery was satisfied on March 16th, 1942.

On September 21st, 1942, the present action was commenced alleging substantially the terms of the agreement for the $5,800 installment construction loan; the commencement of the' erection of the dwelling within the contemplation of the parties; the performance by the plaintiffs of all conditions precedent, and the breach of the agreement by the defendant by its refusal to make the second installment payment when due. The damages resulting from the breach, within the contemplation of the parties, arc alleged to he the value of the use and occupation of the dwelling from October 1st, 1939, the anticipated completion date, to October 1st, 1941, the actual completion date, and for the monetary loss sustained arising out of lien claims filed against the land and uncompleted building by creditors of the plaintiffs. The answer, while admitting the agreement, its terms, the commencement of the construction of the dwelling and the due date of the second payment, denies any breach of the agreement and resultant damage.

Six separate defenses set up in various ways that the final decree of the Court of Chancery is res judicata of the issues sought to be litigated in the present action and a bar to its prosecution by the plaintiffs.

The doctrine of res judicata has two phases; (1) where the second cause of action between the same parties or their privies is founded on the same claim or demand as the first; (2) where the second cause of action is founded on a different claim or demand. In the first, the prior judgment is conclusive not only as to all matters which were actually litigated and decided but as to all which might or should have been. In the second, the prior judgment is conclusive only as to such matters as were actually litigated and determined. City of Paterson v. Baker, 51 N. J. Eq. 49; 26 Atl. Rep. 324; In re Walsh’s Estate, 80 N. J. Eq. 565; 74 Atl. Rep. 563; Clark Thread Co. v. The William Clark Co,, 55 N. J. Eq. 658; 37 Atl. Rep. 599; Perth Amboy Dry Dock Co. v. Crawford, 103 N. J. L. 440; 135 Atl. Rep. 897; Nuzzi v. United States Casualty Co., 121 N. J. L. 249; 1 Atl. Rep. (2d) 890.

The first phase presents a bar to the subsequent action; the second, an estoppel by judgment from taking a position in the subsequent action inconsistent with the determinations of the prior one. The doctrine applies alike to decrees of courts of equity and judgments of courts of law, and the final determination in either court may be invoked as a bar or estoppel in the other. Hoboken, &c., Railroad v. Hoboken, 76 N. J. L. 122; 68 Atl. Rep. 1098.

Turning now to the case at bar, the relief sought to be obtained in the Chancery suit was the cancellation or reformation of the temporary mortgage of $2,900 then of record; the enjoining of any action either at law or in equity upon, or the assignment of the promissory notes and mortgage, and the specific performance of the agreement to lend the $5,800 in accordance with its terms. It was because of the assign-ability of the notes and mortgage that the Court of Chancery took jurisdiction of the controversy. Jacobson v. First National Bank of Bloomingdale, supra, for if the relief prayed for was to compel the specific performance of the agreement to lend money without more, there would be no equity and the bill would have been dismissed. Conklin v. Peoples Building and Loan Association, 41 N. J. Fq. 20; 2 Atl. Rep. 615.

The statement that a court of equity once having assumed jurisdiction of a cause on any equitable ground will reach out and determine the entire subject-matter, to the end that all matters involved in the litigation between the parties or growing out of and connected with the subject-matter of the suit are finally disposed of, even though it is thereby required to pass upon strictly legal questions (10 R. C. L. 370, 120), is not an inflexible rule which the Court of Chancery is bound to follow in every case that comes before it. Shaw v. G. B. Beaumont Co., 88 N. J. Eq. 333; 102 Atl. Rep. 151. It is only where the decision of legal questions is incidental or essential to the determination of the equitable questions that a Court of Chancery can deal therewith. Shaw v. G. B. Beaumont Co., supra. The unliquidated and intangible damages alleged to have been suffered by the plaintiffs in the action at law were not incidental or essential to the determination of the Chancery proceeding and would have been denied had they been prayed for in that action for such “damages cannot be ascertained by the conscience of the Chancellor.” Palys v. Jewett, 32 N. J. Eq. 302.

In Iszard v. Mays Landing Water Power Co., 31 N. J. Eq. 511; affirmed, 34 N. J. Eq. 556, the complainant prayed that the defendant be decreed specifically to perform an agreement to furnish water according to the intent and meaning of the contract, and to pay the damages sustained by its cutting off of the water supply. The court decreed specific performance but as to damages resulting from the breach said “though this court has, in a suit for specific performance, jurisdiction to award compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate, it has not jurisdiction to award damages for the breach of a contract, except as ancillary to a specific performance or some other relief.” Cf. Red Jacket Tribe v. Hoff, 33 N. J. Eq. 441.

In Reilly v. Roberts, 34 N. J. Eq. 299, specific performance of a contract to remove an encumbrance or cloud upon the title was decreed, but complainant’s claim for damages arising from the breach of the agreement was denied as a claim beyond the realm of the Court of Chancery.

In Stanford v. Lyon, 37 N. J. Eq. 94, a mandatory injunction was granted compelling the defendants to remove and abate an obstruction, but the prayer for damages which were allegedly sustained in consequence of being deprived of the way, was denied upon the ground that such claims cannot be admeasured under the authority of the Chancellor.

To the same effect is Alpaugh v. Wood, 45 N. J. Eq. 153; 16 Atl. Rep. 676, where the court held that a demand for unliquidated damages is not cognizable in a court of equity.

The claim or demand in the Chancery proceeding between these parties was the specific performance of the agreement to lend the money with the incidental prayers for relief above noted. The demand in the law action is for unliquidated damages allegedly arising from the breach of the agreement and the defendant’s failure to perforin until compelled to do so by the Court of Chancery. Identity of the claim or demand is lacking and the ease falls within the second phase of the rule of res judicata. As between the parties and their privies, the questions of the validity of the contract and its breach by the defendant bank have been finally determined by the Chancery decree, but the plaintiffs are not barred by that decree from prosecuting the present action at law for the recovery of the alleged unliquidated damages.

The defendant’s motion for judgment upon the pleadings is denied, with costs.