author: Giordano, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    MARGARET OSBORNE, PETITIONER-APPELLEE, v. BOROUGH OF BELMAR, RESPONDENT-APPELLANT.
    Decided January 19, 1943.
    Por the petitioner-appellee, Ansclielewitz & Barr.

    Por the respondent-appellant, Durand, Ivins & Carton.

   Giordano, C. P. J.

The subject of this appeal arises out of the Employers’ Liability Act. Plaintiff’s decedent died under circumstances hereafter related while at his place of employment on July 6th, 1940. The Workmen’s Compensation Bureau determined that the petitioner-appellee had carried the burden of proof and held that Newell S. Osborne, the deceased, died as a result of an accident arising out of and in the course of his employment and that death was caused by coronary thrombosis, precipitated by the activities of his employment on that date.

The decedent was employed by the Borough of Belmar as superintendent of streets and had so been employed for five years prior to his death. He was years of age at the time of his death. The testimony discloses that he regularly performed all of the duties required of him during this period without any loss of time or any outward physical manifestation of incapacity. It is uncontradicted that the decedent had previously suffered from a cardiac condition that required periodic consultation with physicians up until approximately the year 1936. Between the year 1936, when he last con-suited a doctor with respect to his condition, and July 6th, 1940, the date of his death, he demonstrated no outward indication or symptom of that ailment in any manner and was not impeded in the regular performance of his work.

On the morning of July 6th, 1940, he left his home in apparent good health and reported for work as usual. After assigning the various men under his control to their respective tasks, he proceeded to the Yacht Basin on K Street, in Belmar. There he mounted a Case tractor which was operated from a seat and by means of a steering wheel in the same manner as an automobile. To the rear of the tractor was attached a “scoop” or “scraper” by means of which the washed-up sand was to be conveyed from the upper portion of the beach and road to the lower part of the beach, in order to cover up the mud at the water line and thus permit the same to be used for bathing.

The decedent was in the act of demonstrating to his men, who were already on the job, the manner in which the tractor was to be operated, and drove it for some period of time over and across the sandy beach. The witnesses produced disclosed that he made some four or five trips, causing the tractor to be turned in the soft sand twice during each trip. The proofs further show that just prior to his death he had been seen driving the tractor on the hard surfaces of streets or roads, but that this was the first time that the decedent was observed operating this vehicle in soft sand. After he had completed making one of these turns and as the tractor was proceeding toward the opposite point, the decedent was seen to slump from his seat and fall over the left side of the tractor to the ground. The men ran to his assistance and shut off the motor of the tractor. The first witness who reached the decedent found him speechless and according to his testimony he was breathing hard and he started to turn blue. Artificial respiration was attempted by some of the men and a physician was summoned who arrived some five or ten minutes later. Dr. Hancock was the physician and he testified that the decedent appeared to be dead; however, he injected adrenalin into decedent’s heart and the first aid squad gave him extended artificial respiration. At 9:15 a. m., on the morning of July 6th, 1940, the decedent was pronounced dead by the- doctor and the death certificate indicated the cause of death as “probable cardiac insufficiency.” Dr. Hancock further testified that when he first reached the decedent, whom he knew, he was lying on his back, apparently dead. His face was eechymotic and discolored and cyanosis was prominent around and about his lips. The pupils of his eyes were dilated and respiratory motion was absent, and that in his opinion death was due to coronary thrombosis.

The witnesses who were present and observed the demonstration that the decedent was performing testified that a considerable amount of physical, effort was required to turn the wheels of the tractor in the soft sand.

In addition to the four witnesses who were present, the petitioner-appellee produced Dr. Hancock, to whom I have already referred, and Dr. R. A. Leighton, who testified that at intervals up until the year 1935, the decedent had consulted him with respect to a rheumatic heart condition.

Dr. Irving Applebaum, a specialist in diseases of the chest and heart, whose qualifications were not disputed, testified in response to a hypothetical question, unobjected to by respondent, that it was his opinion that the decedent’s death, in all probability, was due to coronary thrombosis, which was precipitated by the effort involved in the operation of the tractor on the morning in question and that the thrombosis was superimposed upon a previous cardiac condition. It was his opinion, and he so testified, that there was a causal relationship between the effort required by the work and the ensuing death.

To overcome this testimony the respondent-appellant produced Dr. Leon Lewis and Dr. Asher Yaguda, who in answer to hypothetical questions directed to them, gave as their opinions that there was no relationship between the death of the decedent and his work that morning.

That there was a pre-disposing physical condition remains unchallenged.

Hpon the facts here stated I think that the holding of the Court of Errors and Appeals in Hentz v. Janssen Dairy Co., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, is controlling. “As for an accident in the sense used in the earlier days, there was none; but it appears to be the effect of our more recent decisions that where the performance of manual labor entails a strain upon the heart without which death would not have occurred but in consequence of which, combined with causes disassociated with the employment, death does occur the experience constitutes an accident within the meaning of the Employers’ Liability Act, and that when the contributory strain arises out of and in the course of the employment the accident likewise so arises.”

Our Court of Errors and Appeals has held that “* * * the requirement that the injury or death arise by accident, under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained of, i. e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred.” Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512, 520; 6 Atl. Rep. (2d) 396; Ciocca v. National Sugar Refining Co., 124 N. J. L. 329, 334; 12 Atl. Rep. (2d) 130. In the English case of James v. Partridge Jones et al., 6 A. C. 501; 26 Butterworth’s Workmen’s Compensation Cases 277, at least twice cited with approval by our Court of Errors and Appeals; Hentz v. Janssen Dairy Corp., supra; Bollinger v. Wagaraw Building Supply Co., supra, accident was determined upon these statements of pertinent principles:

“I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * Kor do I think we should attach any importance to the fact that this man’s health was as described. * * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health. * * * The real question, as it seems to me, is this: Did it (this death) arise out of his employment ?”

The proofs, as I have stated, indicate that the decedent was employed as superintendent of streets and that his work was of a supervisory nature, but on the morning in question, in line with his duties, he was demonstrating by operating a tractor the manner in which he desired the particular job to be done. The death, in my opinion, was caused by a strain arising out of the work he was doing at that time. The operation of the tractor may not have .been heavy work under ordinary circumstances, but it was too heavy for the deceased.

I am satisfied that but for the employment the death would not have occurred when it did. That, under the statement of principle quoted above, constitutes a statutory accident. The effort would not have been undue if the man had been in health but it-was excessive for the weakened member.

The respondent-appellant contends that the petitionerappellee did not carry her burden of proof, and that the proof is not at all certain as to the exact cause- of decedent’s death. In making an analysis of the proof, the question is: did the respondent-appellant introduce evidence of sufficient weight to overcome the proofs of the petitioner-appellee and the inferences to be drawn therefrom, from which it could be said under all of the attending circumstances that the decedent did not die as a result of coronary thrombosis, which was contracted while in the performance of his duties in the course of his employment? I think not.

In light of all that has been said, I, therefore, hold that the petitioner-appellee has established, by the preponderance of probabilities, that death ensued from coronary thrombosis while in the course of his employment.

Accordingly, the judgment of the court below is sustained, and the petitioner-appellee, as surviving widow of Newell S. Osborne, is entitled to compensation under the Workmen’s Compensation Law of New Jersey.


source: Caselaw Access Project

author: Silbeeman, D. C. J.

license: Public Domain

text:
    Second District Court of the City of Paterson.
    WILLIAM E. DAVENPORT AND WILLIAM A. MOODY, TRADING AS DAVENPORT AND MOODY, PLAINTIFFS, v. JAMES KIMBLE, DEFENDANT.
    Decided January 12, 1943.
    Por the plaintiffs, Milton Schamach.

    Por the defendant, Addison P. Rosenkrans.

   Silbeeman, D. C. J.

This was an action instituted by the plaintiffs for the recovery of an amount due representing a balance for goods and merchandise sold and delivered. The original action is based on an account stated and at the trial a second count was added to cover a book account. The defendant contends that the claim is barred by the statute of limitations. He further denies that he owed the amount claimed by the plaintiffs and stated that his recollection of the indebtedness was $50. The plaintiffs’ allegation that the balance of $281.30 is due was climaxed by a transaction wherein the defendant’s son sold to the plaintiffs certain tires and was entitled to a commission, which the plaintiffs claim Kimble, Jr., authorized to be credited to the account of his father. The plaintiffs further testify that this was discussed with the defendant herein and met with his approval. In other words, the allegation of the plaintiffs is that a credit of $3.66 was given on the account of the defendant, James Kimble, on April 22d, 1938, being within six years before suit was started and that he at that time and for some time subsequent thereto promised to continue to pay off the indebtedness. The defendant claims that he never knew of any such transaction and was never informed of any credit given to him by reason of a commission due to his son. The defendant’s son testified that the credit was given by arrangement between the plaintiffs and himself but that he never discussed the same with his father nor did he have his father’s permission to have a credit entered for him on this account. Further proof was presented by the plaintiffs that the account was discussed often between the respective parties hereto and on each occasion there was an admission by the defendant of the indebtedness with the continued statements of a promise to pay. The defendant on the other hand stated that he never made any promises to pay and that there was no approval of the credit allegedly entered on his account, and that if there was any indebtedness, it did not exceed the sum of $50.

I am inclined to place little credence in the testimony of the defendant and his son in view of the fact that if a commission was due to Kimble, Jr., as he allegedly testified, he certainly would not have permitted the commission to go unpaid and there is no doubt in the court’s mind that the credit was entered with the consent of the son and the father, and was by a prearranged transaction meeting with the approval of all parties concerned. If this was not done, the son would without question have pressed the plaintiffs herein for the payment of the commission due him. There is no doubt in my mind that the father knew of this transaction and I believe the testimony of the plaintiffs that the same was discussed with him and that in addition to his approval, he agreed to continue the payments on the account, which without any question brought the account out of the statute and permitted the plaintiffs to maintain this action.

In so far as the book account is concerned, the offer of the book into evidence upon objection of the defendant, was excluded from admission in following the case of Oberg v. Breen, reported in 50 N. J. L. 145; 12 Atl. Rep. 203, wherein the court held: “That books of account of a merchant are not evidence in his own favor with respect to payments credited in them to his customer;” so that the action on the second count must fail.

In so far as the action on the account stated, counsel for the defendant has called to the court’s attention N. J. S. A. 2 :24-9 which provides in actions of debt or upon the case grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any ease out of the operation of this act or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by, or in some writing to be signed by, the party chargeable thereby.

The plaintiffs have come within the provision of this section in an acknowledgment made or continued by the defendant herein. In his arrangement for the credit to the account after the six year period and his promise to pay the indebtedness at that time and on numerous occasions thereafter.

The case of DeRaismes v. DeRaismes, 70 N. J. L. 15; 56 Atl. Rep. 170, is not analogous to the case at bar; in that case a writing was signed by one who was purported to have been a duly authorized agent. This does not come directly within the statutory exceptions which require a writing to be signed by the party chargeable thereby. In the ease at bar there was no writing but the other portion of the enactment governs wherein it is an acknowledgment or promise made or continued by the party chargeable thereby.

The case at bar comes sufficiently within the case of Romaine v. Corlies, 47 N. J. L. 108, wherein the court held: “That a part payment of a book account with an express verbal promise to pay the balance within six years takes the ease out of the statute of limitations.” The court therein further stated, “That a promise to pay the balance of the account is competent evidence to show that the payment was made in part satisfaction only of an admitted claim.” This theory is further substantiated by the case of Trenton Banking Co. v. Rittenhouse, 96 N. J. L. 450; 115 Atl. Rep. 443.

Judgment will therefore be rendered in favor of the plaintiffs in the sum of $281.30 together with interest and costs of suit.


text:
    Monmouth County Court or Common Pleas.
    ALICE LAWSON, PETITIONER-APPELLEE, v. MR. AND MRS. WILLIAM SAGE, RESPONDENTS-APPELLANTS.
    Decided January 21, 1943.
    Por the petitioner-appellee, Thomas F. Shebell.

    Por the respondent-appellant, Durand, Ivins & Carton (by Robert V. Carton, of counsel).
   Giordano, C. P. J.

The subject-matter of this appeal is one which emanates from the Employers’ Liability Act. The petitioner alleges in her petition that she was employed by the respondents as a domestic servant at a weekly wage of $9.50, together with meals and that while being transported from her place of employment to her home, at 1051 Embury Avenue, Neptune, New Jersey, in respondent’s automobile, a collision occurred between respondent’s automobile and another ear, at the intersection of Comstock Street and Third Avenue, in the City of Asbury Park, New Jersey, and as a result of the collision she received injuries to her head, neck and back; and that as a consequence of said injuries received on July 24th, 1941, she is entitled to workmen’s compensation, claiming that the injuries received by her while being so transported arose out of and in the course of her employment.

The point at issue in this appeal is purely one of fact and the query is: did the accident arise out of and during the course of her employment with the respondents? The result of the hearing in the Workmen’s Compensation Bureau was a finding and determination that the petitioner had sustained the injuries complained of; that they arose out of and in the course of her employment, and that she was entitled to a sum for temporary and permanent disability.

The petitioner relies upon her contract of hire, which she alleges was to the effect that in addition to her wages and meals for one-half day’s work each day of the week except Thursday, on which day she was to work a full day, that she was to he transported from her home in Hep tune, to the respondent’s home, where her employment was, and that this contract of hire, according to petitioner, was made between the petitioner and Mrs. William Sage, Jr., one of the respondents.

The respondent Mrs. William Sage, Jr., denies having had any conversation with the petitioner concerning her hire, which is in direct contradiction to that which the petitioner alleges. Mrs. Sage admits, however, that after the illness of Mt. William Sage, Jr., which occurred about July 10th, 1941, a faithful and long-time employee, Manson Johnson, was authorized to engage the services of extra help and to make what arrangements he saw fit in the engagement of such' extra help. The testimony of Manson Johnson, who acted as a chauffeur, butler and general handy man around the home, is to the effect that he engaged the petitioner’s services and not Mrs. Sage, as testified to by the petitioner. Johnson further states in his testimony that he did not at any time promise to transport the petitioner from and to her home and that the matter of transportation was not part of the agreement of hire. The witness, Johnson, frankly admits, however, that he picked the petitioner up at her home on at least two occasions during the two weeks that she was employed, but that his act in doing so was merely one of kindness and because of his friendship for the petitioner.

It is also disclosed by the testimony, and undenied, that on one other occasion when the daughter of the respondents was taking her mother, Mrs. William Sage, Jr., for an automobile ride, namely on July 24th, 1941, they offered to take petitioner home at the same time, and it was then that the collision occurred and the petitioner was injured.

The petitioner invokes the law as expounded by the court in the case of Rubeo v. Arthur McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662; affirmed, 118 N. J. L. 533; 193 Atl. Rep. 797, and the case of Gray v. Greenwood et al., 21 Atl. Rep. (2d) 601.

The principle of law enunciated in these two eases would be applicable if the facts before me came within their scope. The proofs do not sustain the allegation of the petitioner that there was an expressed contract to provide transportation, and neither do the proofs sustain the theory that transportation had been provided in such a manner so that the duty to furnish transportation had developed into a custom between the parties, or if not the custom, at least into a definite practice between the parties.

The testimony of Eosie Woolridge, by whom the petitioner attempted to corroborate her allegation that it was customary for the respondents, or their agents, to have her transported to and from her employment each day, is not convincing and is of little probative value.

It is the duty of the petitioner-appellee to convince the court by a preponderance of the evidence that the respondents were liable for her injuries under the contract of hire. Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458; Dunnewald v. Steers, 89 N. J. L. 601; 99 Atl. Rep. 345.

The proof adduced by the petitioner-appellee to sustain this burden must be competent evidence and must be such evidence that the inferences drawn therefrom are probabilities, not possibilities. Reimer v. Proctor Publishing Co., 85 N. J. L. 441; 89 Atl. Rep. 931; Price v. New York Central, 92 N. J. L. 429; 105 Atl. Rep. 187, and Carlson v. Rosenfeld, 5 N. J. Mis. R. 416.

In reading the testimony I find the following significant statement made by the court below:

“The Court: Well, it’s a jumbled-up mixture as far as the testimony goes, that is, if you are going to let the testimony confuse you. But maybe we don’t have to.

“Of course there is no question here but what there was an accident sustained, by this petitioner, an automobile accident on July 24th, 1941. The main question seems to he whether or not this accident arose out of and during the course of the employment. It is sought to he shown by the petitioner that it did, in that the transportation was part of her contract.

“As I say, if you try to analyze all the testimony of these different witnesses, it seems to me that the more we do, the moro confused it gets. But the general impression left with me, and which seems to be all that is necessary under the decisions in a civil case, is that the evidence is parole and circumstantial and it favors the petitioner in her tendered hypothesis.”

It is the function of the court to weigh the testimony which I have done, and in making my analysis of the proof and giving the evidence all the probative value it is entitled to, the best that can be said is that the evidence is evenly balanced, and, under the law, that being so, I must find that the petitioner has failed in her proof, and I must resolve the dispute in favor of the respondents, and accordingly reverse the decision of the court below.


author: Waesciie, President.

text:
    State Board of Tax Appeals.
    CITY OF JERSEY CITY, PETITIONER, v. STATE TAX COMMISSIONER, DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, RESPONDENT.
    Decided January 19, 1943.
    For the petitioner, Franlc P. McCarthy.

    For the State Tax Commissioner, Harry A. Walsh..
    For the Delaware, Lackawanna and Western Eailroad System, Maximilian M. Stallman.

   Waesciie, President.

On June 17th, 1940, the petitioner, the City of Jersey City, filed its appeal in this matter from the assessment of second class railroad properties of the Delaware, Lackawanna and Western Eailroad System used for railroad purposes, for taxes due during the year 1940, as determined by the State Tax Commissioner. The hearing of this appeal has been adjourned from time to time by consent of counsel for the respective parties.

At the time of calling the calendar of appeals on September 15th, 1942, the respondent Delaware, Lackawanna and Western Eailroad System moved to dismiss this appeal on the ground, among others, that the State Board of Tax Appeals had lost jurisdiction to hear and determine the appeal because the hearing thereon was not held and. concluded on or before October 15th, 1940, in accordance with the provisions of R. S. 54:26-10; N. J. S. A. 54:26-10.

The assessed value of the railroad properties of-the respondent Delaware, Lackawanna and Western Eailroad System, which is the subject-matter of this appeal, was finally determined by the State Tax Commissioner and certified to the comptroller of New Jersey on or before June 1st, 1940. (1937, R. S. 54:27-1; N. J. S. A. 54:27-1.) Any appeal from his final determination had to be taken by filing a written complaint with the State Board of Tax Appeals on or before Monday, June 17th, 1940. (1937, R. S. 54:26-7; N. J. S. A. 54:26-7.) This appeal should have been heard on or before October 15th, 1940, and the final determination of the State Board of Tax Appeals should have been certified to the State Tax Commissioner between November 1st, and November 5th, 1940. The statute reads as follows:

“The State Board of Tax Appeals shall conclude its hearing on or before the fifteenth day of October following the filing of the complaint, and, between November first and November fifth following, shall certify to the State Tax Commissioner its final determination, and the State Tax Commissioner shall forthwith certify to the State Comptroller all changes and corrections in the assessment and tax.” (1937, R. S. 54:26-10; N. J. S. A. 54:26-10.)

The “Railroad Tax Law of 1941” (chapter 291, Pamph. L. 1941), which supersedes the act under which this appeal was taken, provides the same method for assessing second class railroad properties used for railroad purposes, and for taking appeals from the assessments levied by the State Tax Commissioner. Section 34 of the “Railroad Tax Law of 1941” provides as follows:

“The State Board of Tax Appeals shall conclude its hearing on or before the fifteenth day of October following the filing of the complaint, and between November first, and November fifth following shall certify to the State Tax Commissioner its final determination.”

In an opinion filed on November 4th, 1942, in the case of Jersey City v. William D. Kelly, State Tax Commissioner and New York Central Railroad System et al., this Board, in referring to the dates set forth in section 34 of the “Bail-road Tax Law of 1941,” held that, “all of such dates are mandatory and that this Board must conclude its hearings on or before the fifteenth day of October following the filing of the complaint.”

It is the opinion of this Board that this appeal should have been heard and the hearing concluded on or before October 15th, 1940, and since the appeal was not heard before that date, the Board has lost jurisdiction to hear the appeal now.

This appeal is accordingly dismissed and the tax assessments levied by the State Tax Commissioner for the taxes due in the year 1940 against the above named company are affirmed.


author: Waesche, President.

text:
    State Board of Tax Appeals.
    GEORGE A. FULLER CO., PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided January 19, 1943.
    Bor the petitioner, John G. Flanigan.

    Bor the respondent, Frank P. McCarthy.

   Waesche, President.

This ease was set down to be heard at the court house in Jersey City on January 6th, 1943, and notices of the date and place of the hearing were mailed to all interested parties on December 14th, 1942.

On January 5th, 1943, counsel for petitioner appeared before the State Board of Tax Appeals in Trenton, and moved for an adjournment of the hearing. Counsel for Jersey City, the respondent, appeared at the same time before the State Board but did not oppose petitioner’s application for an adjournment.

After due deliberation, this Board denied the motion.

This refusal to grant petitioner’s request for an adjournment would seem to be only an unimportant exercise of discretion by this Board. But that is not the case here. This Board’s refusal was based on fundamental principles of law and policy, and we feel that the questions involved are of such importance as to warrant the filing of an opinion explaining the reasons for the Board’s action.

The appeal in this ease is from the action of the County Board of Taxation of Hudson County in dismissing an appeal from an assessment levied on personal property of the petitioner for taxes falling due during the year 1939.

The amount of revenue required to be raised each year by taxation for municipal, and county governments, and the public schools is determined in advance, i. e., during the first two months of the year, by the annual municipal, county and school budgets. These three divisions of government operate on a credit basis, that is, they incur debts and obligations in anticipation of the revenues they expect to receive from the collection of taxes during the ensuing year. If such revenues fall short of the anticipated amount, the shortage is made up by including it in the budget for the following year. Under the law these budgets must be published, and in some school districts they are voted upon by the electorate at the annual school election.

More than eighty per cent of the revenue needed each year for the support and maintenance of our municipal and county governments, and our public schools is raised by taxing real and personal property. The assessed valuations on all taxable property, except property used for railroad or canal purposes, is determined annually, in the first instance, by the local assessor as of October 1st, of the year next preceding the year in which the taxes fall due. (R. S. 54:4-9, 54:4-23; N. J. S. A. 54:4-9, 54:4-23.) The State Tax Commissioner fixes the assessed value of all property used for railroad or canal purposes (R. S. 54:20-2; N. J. S. A. 54:20-2).

On or before March 10th of each year, the County Board of Taxation determines the total value of the taxable real and personal property in each taxing district, and also determines, for each taxing district, the tax rate for that year (R. S. 54:4-52; N. J. S. A. 54:4-52). Local taxes are due and payable in four installments—on the first day of February, May, August and November in each year (R. S. 54:4-66; N. J. S. A. 54:4-66). All unpaid taxes assessed locally on real estate become liens on the real estate on which they are assessed on and after December 1st, of the year in which they fall due (R. S. 54:5-6; N. J. S. A. 54:5-6).

Therefore, each taxpayer knows in advance the amount that he is expected to contribute to the support of municipal and county governments, and the public schools during the ensuing year, and the time when such contributions are due and payable. Any change in the assessed value of any taxable property after March 10th shifts the burden of taxes on every taxpayer and changes the total amount of taxes levied for that year for the support and maintenance of municipal and county governments, and public schools. All such changes require an adjustment in the tax assessments for the following or subsequent years (R. S. 54:4-49, et seq.; N. J. S. A. 54:4-49, et seq.). It is, therefore, a matter of great importance to the public welfare as well as to each taxpayer that the assessed values of all taxable property be finally determined during the year in which the taxes on those assessed values fall due or as soon thereafter as possible.

In the case of Montclair v. State Board of Tax Appeals, 127 N. J. L. 382; 22 Atl. Rep. (2d) 525; affirmed, 128 N. J. L. 319, the Supreme Court said:

"A suitor municipality which would obtain the statutory relief should be diligent in seeking it. The granting of the proposed credits to the Borough of Koseland would create a burden upon the remaining municipalities, and that burden would now be distributed in entirely different amounts and proportions than would have been the case in 1938. It is the policy of the state that the settlement of tax controversies be effected within a reasonable time so that the assets of the dependent interlocking political divisions of city, county and state, with their financial requirements, shall be finally and harmoniously adjusted.”

An appeal from any assessment levied by the local assessor may be taken to the County Board of Taxation by filing with it a petition of appeal on or before August loth of the year in which the tax is due (R. S. 54:3-21; N. J. S. A. 54:3-21). The County Board of Taxation must hear and determine all such appeals within three months after the last day for filing such appeals—that is, by Yovember 15th of the year in which the tax is due (R. S. 54:3-26; N. J. S. A. 54:3-26).

Any petitioner who is dissatisfied witli the judgment of the County Board of Taxation upon his appeal may appeal from that judgment to the State Board of Tax Appeals by filing a petition of appeal to the State Board within one month from the date fixed for final decisions by the County Board— that is, by December 15th of the year in which the tax is due. The State Board is required by law to hear and determine all such appeals and render its judgment thereon “as soon as may be” (R. S. 54:2-39; N. J. S. A. 54:2-39).

The Supreme Judicial Court of Massachusetts, in the case of Crawford v. Roloson, 149 N. E. Rep. 707, construed the words “as soon as may be” to be the equivalent of “as soon as was reasonably possible.” The Supreme Court, Appellate Division, First Department, of New York, in the case of In re Varet’s Estate, 168 N. Y. S. 896; 181 App. Div. 446, construed the words “as soon as may he” to mean “as soon as reasonably may he.” In the opinion in the Yew York case it was pointed out that the phrase “as soon as may be” had been construed by other judicial tribunals to be similar in meaning to “within a reasonable time;” “as soon as possible;” “forthwith;” “as soon as they conveniently can.”

Whatever meaning may he ascribed to the words “as soon as may he,” it is perfectly clear that the Yew Jersey statute intends that the State Board of Tax Appeals shall hear and determine all appeals from the county boards of taxation promptly and with due diligence.

The legislative scheme for assessing taxable property in Yew Jersey definitely intends that the assessed or true value of all property subject to taxation shall be finally determined, if reasonably possible, during the year in which the tax on such assessed values is due and payable. This is certainly a logical, if not an essential provision, if great confusion, uncertainty and injustice axe to be avoided.

The assessment under appeal' in this proceeding is for taxes due and payable during the year 1939. The hearing on this appeal ought not be postponed except for the most substantial reasons. We do not consider that the reasons offered in support of the motion are of such a nature.

The motion for an adjournment of the hearing is accordingly denied.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BERTHA KIEVSKY, PETITIONER, v. UNITED NEON SUPPLY CORP., AND ROYAL INDEMNITY CO., RESPONDENTS.
    Decided November 13, 1942.
    For the petitioner, David Roslcein.

    For the respondent, A. Lionel Reid.

   * * * * * * *

The sole issue presented for determination is as follows: Was the death of the petitioner’s decedent, Benjamin Kiev-sky, by his own hand on September 8th, 1939, related to the accident which he admittedly sustained on January 17th, 1939, while in the employ of the respondent, as recognized by the Compensation Act of this state. It appears without dispute that on January 17th, 1939, Benjamin Kievsky was in the employ of the respondent United Neon Supply Corp., and while so employed, met with an accident which arose out of and in the course of his employment, when he fell, sustaining severe burns about his lower extremeties and body. The employee was taken to his home and remained under the treatment of Dr. S. Greenberg. The doctor made a diagnosis of severe burns to his lower back, buttocks and thighs and lower extremeties. At the time of the said accidental occurrence, the petitioner fell into certain chemicals and acids which produced the said burns. Petitioner remained at his home until January 24th, 1939, when he developed a temperature, severe pain in the injured areas, uncontrollable hiccoughs, became nervous and unruly, necessitating his admission to the Newark Beth Israel Hospital. There he developed a severe ease of pneumonia. During the course of treatment he was placed in an oxygen tent, became very restless, excited and violent. The hiccoughs which he had developed and which were attributed to the toxic poisoning from the burns, however, subsided. A lymphangitis developed, which necessitated numerous incisions and considerable drainage. ' Private nurses were put on the case and Dr. M. W. Bergman, a neurologist, was consulted, The doctor was of the opinion that he manifested symptoms of a severe depression and made a diagnosis of manic depressive psychosis. The said employee recovered from his hiccoughs and pneumonia and at the time of his discharge from the hospital was still under medical treatment for abscesses which had developed following the burns in his lower left extremity. Upon discharge from treatment, Kiev-sky attempted to resume his employment. Marked personality changes became manifest. He complained of numerous symptoms referable to his eyes, his ears and lower extreme-ties. He appeared to have difficulty in seeing, in hearing and in walking. He became melancholy and depressed and on September 8th, 1939, took his life. It was the opinion of the treating physician, Dr. Greenberg, as well as the neurologist, Dr. Bergman, that the suicide and death of the decedent was due to a manic depressive psychosis which was co-related and attributable to the accident of January 17th, 1939.

The respondent rested without producing any testimony or offering any evidence. The real question thus presented for determination is whether or not the undisputed proofs, as well as the reasonable inferences to be drawn therefrom, sustain the burden of proof imposed upon the petitioner under our Workmen’s Compensation Act. Prom a full consideration of the evidence, I find and determine that the petitioner here has carried that burden. We find an employee, who, up to the date of the accident, was in apparent good health' and capable of performing all of the duties required of his employment, suffering occupational injuries which, resulted in extensivo and painful burns over a considerable area of his body and which necessitated his immediate and prolonged cessation from work. The distressing physical developments and complications which ensued this accident not only required extended medical treatment but hospitalization as well. The uncontrovorted testimony as to the effect that the toxic sequellae of the burns, the shock of the accident and the pain which followed, the prolonged attack of hiccoughs with ensuing pneumonia and the lymphangitis which necessitated frequent surgical incisions and drainage, cumulatively had the effect of undermining the mental status of the decedent and resulted in the psychosis which unquestionably brought about the act of self-destruction.

The evidence is satisfactory and the inference is warranted that the conceded compensable accident set in motion a chain of related events which culminated in the employee’s death some nine months later. In view of the direct and circumstantial evidence tending to establish an unbroken continuity of first physical and then mental degeneration of the employee immediately following the injury, to the date of his death, the proofs are ample to support a finding that the death of the decedent was causally related to the accident. Lundy v. Brown, 93 N. J. L. 107; 106 Atl. Rep. 362, as affirmed by the Court of Errors and Appeals in 93 N. J. L. 469; 108 Atl. Rep. 252. The language employed by Mr. Justice Heher in Kuczynski v. Humphrey, 118 N. J. L. 321; 192 Atl. Rep. 371, is particularly appropriate: “A causal connection between the accidental injury so suffered and the mental derangement is fairly inferable from all the facts and circumstances. That is a probable or more probable hypothesis with reference to the probability of other hypotheses. The evidence on the whole leads itself to inferences that bring this within the realm of probability.”

Accordingly, I find and determine that the petitioner’s decedent met with an accident which arose out of and in the course of his employment with the respondent on January 17th, 1939, of which accident the respondent had due notice; that his death on September 8th, 1939, was causally related to the injuriés which he suffered in said accident and the sequella and complications which ensued; that Bertha Kiev-sky, his wife, the petitioner herein, is a total dependent within the meaning of the Workmen’s Compensation Act and entitled to compensation as such. The respective parties have stipulated that the dependent’s compensation rate was $11.85 per week. The decedent was paid compensation for temporary disability for a period of 16 weeks and for partial permanent disability on the- basis of 5% of total during his lifetime, and following his death the sum of $180 was paid to his widow, the petitioner herein. The respondent is entitled to a credit for said sum of $180. The respondent has heretofore paid all medical and hospital costs incurred on behalf of the decedent.

It is, therefore, * * * ordered that judgment be and the same is hereby entered in favor of Bertha Kievsky, the petitioner, and against the United Keon Supply Corp. and Boyal Indemnity Co., the respondents.

% ifí íj* íJí Hi ❖ ❖

In the event of the death or re-marriage of the petitioner, ■Bertha. Kievsky, prior to the expiration of the aforesaid 300 week period, the respondent herein is entitled to make application for the modification of this award.

¥ * * * * * *

John C. Wegner, Deputy Commissioner.


author: John C. Wegnek, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    LILLIAN RUTH FOSTER, PETITIONER, v. JARKA CORPORATION, RESPONDENT.
    Decided November 27, 1942.
    Por the petitioner, Nicholas Martini.

    Por the respondent, Schneider & Schneider.

   ^ ^ ^ ^

It appears that the petitioner, on May 1st, 1914, married Clifford Pitzgerald in New Brunswick, New Jersey, and that after living with him for a short time, they separated. The petitioner claims that she has never seen or heard from the said Clifford Pitzgerald since that time. She states that she met Thomas Joseph Poster, the deceased, several years before 1936 and that, although she knew he was married, she lived with him. On July 16th, 1936, the petitioner instituted divorce proceedings against her first husband, Clifford William Pitzgerald, and filed a proof of publication in that suit on July 18th, 1937, but did not proceed any further with the said suit.

It also appears from the evidence that on July 16th, 1936, the deceased, Thomas Poster, instituted divorce proceedings against his wife, Agnes Jones Poster, whom he had married on December 1st, 1919. In other words, the deceased and the petitioner, both married, but not to one another, both instituted divorce proceedings against their respective spouses on the same day and both engaged the services of the same attorney. The deceased’s wife, on June 22d, 1937, filed a counter-claim setting up her husband’s adultery with the petitioner. The deceased’s petition was dismissed on September 20th, 1937, and a decree nisi was granted to Agnes Foster. The final decree was awarded to the said Agnes Foster on December 21st, 1937.

The petitioner states that several days after the deceased was divorced and the final decree entered, she and the deceased entered into a common-law marriage which continued up to the date of his death. Her claim is that she is therefore the widow of the deceased, Thomas Foster, and that she is entitled to compensation from the respondent for that reason.

The petitioner did not continue with her suit for divorce. She alleges that, in accordance with the 1937 Devised Statutes 3:42-l; N. J. S. A. 3 :42-1, she had a right to presume that her first husband, Clifford Fitzgerald, was dead.

It then becomes incumbent upon the respondent to prove that “he [her first husband, Clifford Fitzgerald] was alive within that time.” Of course, the most definite way to prove that Fitzgerald was alive at the time the petitioner entered into an alleged common law marriage with the deceased, Thomas Foster, would be to prove that he was alive at the time of the death of the decedent, Thomas Foster. This the respondent has done.

Despondent applied for and received on July 20th, 1942, an order to take the deposition of one, Clifford William Fitzgerald, in. the State of Connecticut, at a time to be arranged by the attorneys for the petitioner and the respondent, the latter having agreed to pay for the transportation expenses of the petitioner and her attorney. The attorney for the petitioner then sent a letter, which is in evidence, to the attorney for the respondent saying that he had “decided not to go to Connecticut to attend deposition to be taken and his client refuses to leave the State for that purpose.” Subsequently, an order was applied for and granted to the respondent to take the deposition of Clifford William Fitzgerald at a certain time and place in Connecticut. This deposition is in evidence and shows to the satisfaction of the court that Clifford William Fitzgerald is the person who married the petitioner in this case on May 1st, 1914; that he never instituted divorce proceedings against the petitioner; that he was never served in any divorce proceedings; and that, therefore, the petitioner’s first husband is now alive and was necessarily alive at the time the petitioner entered into her alleged common law marriage with the deceased, Thomas Joseph Foster. The marriage between Lillian Buth Foster and Fitzgerald is still valid and legal and subsisting, and therefore the alleged common law marriage between the petitioner and the deceased, Foster, is rendered absolutely void ab initio.

The conclusion stated above, based upon the undisputed facts as set forth herein, is stated clearly in many cases cited in the State of New Jersey. The case of Keller v. Luisenmyer, 101 N. J. Eq. 664 (at p. 681); 139 Atl. Rep. 33, holds: “If the defendant was lawfully married to Frank Luisenmver prior to her marriage to the petitioner, and said Luisenmyer was alive on May 20th, 1923 (the date when she married the petitioner), and the Luisenmyer marriage subsisted when the defendant and the petitioner were ceremonially married, the latter marriage is, under the provisions of the Divorce Act, void ab initio, and no decree of this court is required to declare such result.”

Likewise, in the Court of Errors and Appeals case of Tyll v. Keller, 94 N. J. Eq. 426 (at p. 429); 120 Atl. Rep. 6:

“In order to entitle him to a decree of nullification, he was bound to prove not only the former marriage of the respondent to Bozear, but the fact that the latter was alive when he (the appellant) married the respondent and that Bozear and the respondent had not been divorced. * * *”

We do not feel that under the facts presented in our case it is necessary to determine whether or not the facts presented by the petitioner warrant the conclusion that a presumption of the death of the petitioner’s first husband did or did not exist. Yet, even assuming that such presumption of death did exist, the verdict of the court must be resolved in favor of the respondent in that, as indicated above, the important un contradicted facts show that the petitioner’s first husband is still alive and still legally married to her and that any presumption of death that might be presented to the court must necessarily be overcome by the undisputed fact that the one presumed to be dead, that is the petitioner’s first husband, is still alive.

All the eases cited in New Jersey bear out this point and further, the very statute upon which this presumption of death is based specifically states that (2 Comp. Stat., p. 1904, or R. S. 3:43-1; N. J. S. A. 3:43-1) :

“If a resident or non-resident of this State remains beyond the seas, absents himself from this State or from the place of his last known residence or conceals himself in this State or in the place of his last known residence, for seven years successively, he shall whenever his death comes into question, be presumed to be dead, unless it is proved he was alive within that time.”

In other words, the fact that the respondent has undisputedly proved that the first husband of • the petitioner is still alive, overcomes completely any presumption of his death. Sillart v. Standard Screen Co., 119 N. J. Eq. 143; 194 Atl. Rep. 787; Rehder v. Rehder, 13 N. J. Mis. R. 310; 178 Atl. Rep. 361; Michaels v. Michaels, 91 N. J. Eq. 408; 110 Atl. Rep. 573; Vreeland v. Vreeland, 78 N. J. Eq. 256; 79 Atl. Rep. 336.

The Workmen’s Compensation case of Dunn v. O’Day, 18 N. J. Mis. R. 679 16 Atl. Rep. (2d) 195, cites a' number of the above cases as authority and although the facts in that case are not on all fours with our case, there are sufficient facts therein to allow but one conclusion in our case, and that is, that the petitioner was always and still is the legal spouse of Clifford Fitzgerald, her first husband, and she cannot therefore be the widow of the late Thomas Joseph Foster and she is therefore not entitled to any benefits under the Workmen’s Compensation Act for the death of the said Thomas Joseph Foster.

It is, therefore, * * * ordered that the petition in the above entitled matter be hereby dismissed.

John C. Wegnek, Deputy Commissioner.


author: Gtobdano, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    CHRISTINA SIMPSON, PETITIONER-APPELLEE, v. SEABOARD ICE COMPANY, RESPONDENT-APPELLANT.
    Decided February 25, 1943.
    For the petitioner-appellee, Beniamin Madnick.

    For the respondent-appellant, Arthur T. Vanderbilt.

   Gtobdano, C. P. J.

The subject of this appeal arises out of the Employers’ Liability Act. For the purpose of determining the basic issues involved in this case it becomes necessary to review the circumstances of the decedent’s employment and activities immediately preceding his death. The evidence discloses that the appellant is in the business of manufacturing and distributing ice. Its plant and store house is located in Neptune City, Monmouth County, New Jersey. Appellee’s decedent, hereinafter referred to as Simpson, was 47 years of age and had been employed by appellant for a number of years prior to 1940. He was employed in the store house storing ice. His employment was not continuous but seasonal. His work consisted principally of pushing cakes of ice in the storehouse a distance of twelve to fifteen feet, and it required the expenditure of ten pounds of effort to push each cake of ice. In addition to this work it was his duty part of the time to lift wooden lids weighing approximately 60 pounds, by the use of two rods which were attached to the ends of each lid.

At midnight of October 15th, 1940, Simpson reported to work. His hours of work were to be from 12:00 P. M. until 8:00 A. M. on October 16th, 1940. From 12 :00 o’clock midnight until 2 :00 A. M. of the morning of October 16th, he performed the work heretofore referred to. At 2:00 A. m. Simpson stopped work to eat his lunch. While eating his lunch he sat on the desk along side of one Warren Hulse, an engineer employed at the plant and who was Simpson’s immediate superior. After finishing his lunch Simpson had a smoke and then read a magazine. During this period of time, which according to the evidence, was estimated to be at least 45 minutes, Simpson was completely at rest and doing no work. At the conclusion of his lunch hour and before commencing work he told Mr. Hulse that he felt ill and that he thought he had indigestion. Hulse advised Simpson not to go back to work. Simpson, however, did not take Hulse’s advice and resumed work at about three o’clock in the morning. Hulse testified that he was near Simpson most of the time and noticed that he was getting sicker and that his face was getting white. The testimony discloses that from three o’clock in the morning Simpson was lifting lids previously described and so continued until 4:00 A. M., after which he lowered 34 cakes of ice from the dip tank. After lowering this group of ice he went into the storage house to pull them, and while so pushing the ice, he suddenly waved his hand to the engineer Hulse to come and take his place. Simpson stopped work immediately and went out to sit on the chair by the desk where he had had his lunch. The testimony discloses that Simpson could not answer Hulse at first and the color of his face was real white. Simpson sat in the chair for about 10 or 15 minutes and at about 5:00 A. M. on the morning of October 16th he was driven home by Mr. Hulse.

The decedent’s wife, Christina Simpson, testified that she saw her husband after he was brought home that morning between 5:00 and 5:30 a. m. She observed her husband sitting in a chair with his head back against the wall, his face very white and that he was gasping for breath. She contacted Dr. Jamison who was unable to come that morning, but she succeeded in contacting Dr. Sehlossbach who visited her husband. Mrs. Simpson testified that the next day Dr. Jamison saw her husband who remained at home from October 16th to October 21st, on which day he was taken to the Pitkin Memorial Hospital.

Christina Simpson further testified that during the time he was home he would continually gasp for breath and keep rubbing his chest; that he did not sleep well during this period of time and that she was awakened by her husband and requested to put his head upon pillows as he could not breathe; that his appetite was very poor and that he spent most of the time at home. She also testified that the decedent had been in good health prior to October 16th, 1940.

Simpson died on October 21st, 1940, and the death certificate, which was marked in evidence, states the cause of death to be due to “heart failure and coronary occlusion.”

The respondent introduced evidence that during the evening of October 16th, 1940, which was the same day he was brought home by Mr. Hulse, Simpson came back to the plant about 6 :00 o’clock, saw the other employees working on the night shift and spoke to Mr. Vreeland, the chief engineer, and asked Vreeland whether he had made arrangements for him to come hack to work. In answer to his inquiry he was told that another man had been hired to take his place and that since there was only four or five days more work to do, there would be no use for Simpson to return. The evidence further discloses that on October 17th he returned to see Mr. Vreeland to ascertain whether or not he, Simpson, could return at 12:00 o’clock that night. According to the testimony, Simpson told Mr. Vreeland that there was nothing wrong with him, that he had a little upset stomach and that his doctor told him he was O. K. and able to work. Vreeland, however, did not like the way he looked and told him to please stay off work. Simpson apparently got angry and went off in a huff. He went downstairs, grabbed his bicycle and tore off down the driveway, jumped over the seat and went on, waving his hand. Ho one at the plant saw Simpson again, nor did they hear of his death on October 21st until sometime thereafter.

The respondent contends under these circumstances that the petitioner’s decedent did not suffer an accident arising out of and in the course of his employment on October 16th, 1940, because Simpson on the morning of October 16th was doing his ordinary work, in the usual manner and was subjected to no unusual heavy physical exertion or strain, and argues- further that Simpson, who did not die immediately after having become ill while at work could have died from some other unrelated cause, and suggests that Simpson overexerted himself when on October 17th he “grabbed his bicycle, tore off down the driveway, jumped over the seat and went on, waving his hand.” This latter contention is not substantiated by competent proof, and it is elementary that what you assert you must prove by competent and credible evidence, which I fail to find in my analysis of the proof.

It is well established in this state that death must have been caused by accident arising out of and m the course of decedent’s employment in order to support an award of compensation, and the decisions in this state are too well known and too numerous to take time to quote. It is just as equally well settled that the burden of proving that an employee’s death was the result of an accident arising out of and in the course of his employment rests upon the petitioner. We, therefore, come to these two questions: did the petitioner’s decedent suffer an accident on October 16th, 1940, and assuming that he did suffer an accident, did it arise out of and in the course of Lis employment with respondent P

Our highest tribunal has held that “* * * the requirement that the injury or death arise by accident, under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained of, i. e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred.” Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512, 520; Ciocca v. National Sugar Refining Co., 124 Id. 329, 334.

Upon the facts here stated I believe that the holding of the Court of Errors and Appeals, in Hentz v. Janssen Dairy Co., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, is controlling.

As for an accident in the sense used in the earlier days, there was none; but it appears to be the effect of our more recent decisions that where the performance of manual labor entails a strain upon the heart without which death would not have occurred but in consequence of which, combined with causes disassociated with the employment, death does occur the experience constitutes an accident within the meaning of the Employers’ Liability Act, and that when the contributory strain arises out of and in the course of the employment the accident likewise so arises.

In the English case of James v. Partridge Jones et al., 6 A. C. 501; 26 Butterworth's Workmen’s Compensation Cases 277, at least twice cited with approval by our Court of Errors and Appeals; Hentz v. Janssen Dairy Corp. supra; Bollinger v. Wagaraw Building Supply Co., supra, accident was determined upon these statements of pertinent principles:

“I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * ISTor do I think we should attach any importance to the fact that this man’s health was as described. * * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health. * * * The real question, as it seems to me, is this: Did it (this death) arise out of his employment ?”

Our cases hold that reasonable probability and not absolute medical certainty is the test to be applied in compensation eases, Jackson v. Delaware, Lackawanna and Western Railroad Co., supra; 111 N. J. L. 487; 170 Atl. Rep. 22, and all that is required for the petitioner to prevail is that the claimed conclusion from the facts be a probable or more probable hypothesis with reference to the possibility of other hypotheses, Belyus v. Wilkinson Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873.

The case of Ciecwirz v. Public Service Electric and Gas Co., 128 N. J. L. 16; 24 Atl. Rep. (2d) 394, holds:

“However, whether the work the petitioner was doing be characterized, as “effort expended,” or “extra strain,” or “exertion of the moment,” so long as there was a causal relationship between the employee’s work and his disability, then his disability was the result of an accident arising out of and in the course of his employment.”

The respondent relies upon the theories expounded by Dr. Yager and Dr. Kuoff. I have carefully read the testimony submitted by these doctors and compared it with the attending physician’s testimony, Dr. Jamison, and with that of Dr. Meehan, who qualified as an expert. Our courts, in the decisions that I have examined, do not hold to the same opinion as expounded by Dr. Yager.

The respondent also urges that the case of Standard Water Systems Co v. Ort, 110 N. J. L. 586; 166 Atl. Rep. 335, is analogous to the instant ease. I have carefully studied this case and am of the opinion that it is distinguishable and not applicable. In the Ort case it was found, as a matter of fact, that the decedent had completed his work with nothing unusual having happened, whereas in the instant case, Simpson complained during his lunch hour of indigestion but continued nevertheless to do his work, which he was subsequently obliged to terminate because of his inability to continue. His subsequent activities clearly demonstrate that he had no real appreciation of the seriousness of the injury he previously sustained, but the fact remains under the proofs that an accident did occur while in the course of his employment.

A careful consideration of the proofs adduced, and all reasonable inferences deducible therefrom, convinces me that the more reasonable and probable explanation presented by the petitioner’s evidence has adequately established, factually and legally, that decedent met with an accident on October 16th, 1940, which arose out of and in the course of his employment with the respondent.

Accordingly, the judgment of the court below is affirmed.


author: Flannagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    SAMUEL GORDON EL, BY HIS NEXT FRIEND, HIS FATHER, SAMUEL GORDON EL, PETITIONER-APPELLANT, v. NEWARK STAR-LEDGER, ALSO KNOWN AS NEWARK MORNING LEDGER CO., AND LIBERTY MUTUAL INSURANCE COMPANY, RESPONDENTS-APPELLEES.
    Decided February 15, 1943.
    For the petitioner-appellant, Harry Krieger.

    For Newark Star-Ledger, Osborne, Cornish & Schech.

    For Liberty Mutual Insurance Co., John W. Taylor.

   Flannagan, C. P. J.

This is the second, appeal in this ■ease from the Workmen’s Compensation Bureau. The first appeal was on a dismissal of the petition upon the testimony of the petitioner alone. This court held that the dismissal was error upon an opinion filed on December 10th, 1941, to which reference is now made, and remanded the case for further testimony and findings. The testimony for both sides was then fully heard in the Bureau and the deputy commissioner, upon the whole ease, reached the same conclusion he had reached on the petitioner’s case alone, and accordingly again dismissed the petition. This appeal is from that dismissal.

On a review of the whole testimony I am not prepared to accept in toto the testimony of either side, but I have endeavored to determine ■where the truth lies from the entire evidence.

The-petitioner, a colored hoy 12 years of age, entered into an arrangement with the respondent newspaper to act as a “route man.” He was given a book containing the names and addresses of a certain number of subscribers already obtained for the respondent, and each day was given a number of papers corresponding with the number of papers to be delivered on that day. A lesser number of papers were given him on Sundays than on weekdays. According to petitioner his hours were from 5:30 to Y :00 A. M., seven days a week. According to testimony in behalf of respondent he started work at 6 o’clock. He delivered these papers and collected for them.

Respondent claims that petitioner accounted for these papers periodically at wholesale prices, thus being, as claimed, a purchaser, “a little merchant,” he retaining as his compensation the difference between the wholesale and retail prices. ’

Respondent wished to make the petitioner an independent contractor, and to establish the petitioner in that status he was required to sign a lengthy printed form denominated “Independent Distributor Agreement” (Exhibit B-l), and his mother was told that in order for him to get the job she would have to sign also. This document, which the petitioner signed (but which singularly enough respondent never signed), designated petitioner as a “distributor.” If viewed as standing alone, it fixed the status of petitioner as that of an independent contractor. It only provided, however, for part of the work which petitioner performed for respondent; it did not include in petitioner’s duties two of the important parts of the work, which petitioner was expected to and did perform for respondent, viz., (1) the collection of insurance premiums, and (2) the soliciting for new subscribers. While the document “advised” the petitioner to “make periodical solicitation visits” to secure new subscribers, it avoided making this a duty. Any mention of the collection of insurance premiums was omitted altogether.

-In deciding whether a laborer is entitled to the benefits of the Workmen’s Compensation Act the court will not be confined to mere written words subscribed by the workman, but will look further to ascertain what in truth was the work the employee actually did at the instance, and for the benefit, of the employer.

The injection of insurance into the work of petitioner was part of a promotion scheme of respondent for maintaining and increasing circulation. For the collection of these premiums petitioner received no additional compensation over and above that indicated by the printed form, but for each new subscriber he obtained it is not disputed that he did receive special compensation, the rate being in dispute.

It is maintained that this arrangement brought the petitioner within the provisions of B. 8. 34:15-36 as “sales agent or distributor as an independent contractor” of a newspaper. In determining whether it did or not the arrangement should be taken as a whole; that part favorable to the contention advanced by respondent cannot be separated, regarded alone as the controlling factor, and the rest ignored.

The statute relied on is an amendment to the Workmen’s Compensation Act (laws of 1932, chapter 64) ; it created a special class, viz., those engaged in publicity (disseminators of newspapers, magazine, and periodicals). The Compensation Act is remedial legislation and, construing the provision in question strictly, it covers only those whose work is strictly and wholly within the descriptions, “sales agent or distributor as an independent contractor.” The collection of insurance premiums does not fall within the functions of a sales agent or distributor of newspapers and the securing of new subscribers was a function separately undertaken and compensated for, and, while “advised,” was not a duty included in those prescribed in the writing which is alleged to make the petitioner an independent contractor.

Taking the petitioner’s work as whole, it does not seem to me to have been performed as “sales agent or distributor as an independent contractor” for the purposes of the Compen■sation Act within the meaning of the section invoked. So far as the collection of insurance premiums is concerned this was not the function of a sales agent or distributor. So far as the obtaining of new subscribers was concerned, it was a separate undertaking, separately compensated for. Neither function was within the obligations of petitioner provided for in the respondent’s independent contractor form. (Exhibit R-1.) It was while performing the latter function that petitioner was injured.

On the day of petitioner’s injury Mendelsohn (petitioner’s “boss”) was in possession of a current copy of the Star-Ledger, which, due to some unforeseen circumstance, had not been delivered to the person intended, one Mrs. Todd. The paper is identified by having written across the top of the front page in large heavy black crayon in Mendelsohn’s handwriting, the words, “Mrs. Todd 109 Orchard.” Petitioner had completed his regular work and was about to leave for the day when Mendelsohn handed him the said Todd, copy, stating it was for the purpose of using it to get a new subscriber. The testimony of Mendelsohn was as follows: “I told the child to put it in some house or I asked him to put it in some house where he could come back and get a customer later on. * * * I said on his way home he could put it in some house and maybe get a customer.” Petitioner took the paper and started on this mission with another hoy, riding on the handlebars of a bicycle. He had only gone a very short distance from Mendelsohn’s office, where he received the paper, when he came in contact with an automobile, resulting in the fracture of his leg.

It is testified by the driver of the ear and one of the occupants (McPadden and Carr) that the petitioner did not have the Todd paper with him at the time of the accident, but this is negatived by the physical evidence. The petitioner testified that he had the paper “all the time” and produced it at the trial to substantiate his version. (Exhibit P-4.) It was identified by the writing thereon (“Mrs Todd 109 Orchard”), admittedly in the handwriting of Mendelsohn.

This isolated venture upon which petitioner was engaged to deliver, not sell, one mutilated newspaper to “some house”' on a chance of securing a new subscriber, cannot be regarded as a delivery by a “distributor or sales' agent” to the “general public.” It was not an act promised to be performed under the printed form malting the petitioner an independent contractor. Hence, it was not excluded from the general provisions of the compensation statute by the special exceptions provided for by the section in question (R. S. 34:15-36; N. J. S. A. 34:15-36).

It is urged that the petitioner was “skylarking” at the time of the accident. What is testified to is that the petitioner was riding on the handlebars of a bicycle operated by the boy with whom he started out, that the operator had lost control of the machine and was on the wrong side of the road. This, if true, seems to me to indicate negligence rather than skylarking. It is denied by both petitioner and his companion.

These views lead to the conclusion that the petitioner is entitled to compensation.

The determination pursuant to this opinion will fix the compensation rate at $3.58 per week. While the petitioner earned some special compensation for securing new subscribers, he failed to see to it that there was any testimony in the whole case giving the exact amount thereof. In consequence of his failure to carry this burden he must lose the benefit of these earnings in estimating his rate of compensation. The period of temporary disability will be from November 7th, 1940, to January 4th, 1941, and the extent of permanent disability will be at 20 per cent, of total permanent of one leg.

The remaining question is as to double liability, petitioner claiming double compensation (R. S. 34:15-10; N. J. S. A. 34:15-10) on the ground that he was employed in violation of the Child Labor Law, being only 12 years of age and working before 7:00 A. n.

By section 3, page 333, of the Child Labor Law, laws 1940, chapter 153, we find that the working of boys under sixteen years of age before 7:00 o’clock in the morning is prohibited, except as may be provided in section 15 of the same act; the language is: “nor shall any minor under sixteen years of age be so employed, permitted or suffered to work in a gainful occupation before seven o’clock in the morning.”

Turning to section 15, page 342, we find no exception covering the working of boys under 14 years before seven o’clock A. M. That section contains the following: “hTo boy under fourteen years of age * * * may engage in any street trade, which term for the purpose of this section, shall include the selling * * * soliciting for, collecting for * * * or distributing any newspapers * * * from house to house. * * * provided, that nothing in this section shall prevent boys between twelve and fourteen years of age from delivering, soliciting and collecting for newspapers and magazines over routes in residential neighborhoods at such times and under such conditions as are not prohibited in this act. * Hi

Turning back to section 3 we find, as above pointed out, that the working boys between twelve and fourteen years of age (viz., “under 15 years of age”) before 7:00 o’clock a. m. is prohibited by the act. The age of petitioner being twelve years, it follows that he is entitled to double compensation under R. S. 34:15-10; N. J. S. A. 34:15-10.

Findings may be submitted accordingly under rule 9.


author: Smith, Joseph L., C. C. J.

text:
    Essex County Circuit Court.
    MICHAEL A. CASTELLANO, PLAINTIFF, v. THE CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided March 12, 1943.
    For the plaintiff, Harry Phillipson.

    For the defendant, Raymond Bchroeder (Joseph A. Ward, of counsel).
   Smith, Joseph L., C. C. J.

This case is submitted to the court without a jury. The facts are to be found as stated in the agreed stipulation of facts and depositions, which are made a part hereof as if fully set forth herein.

This is an action brought by the plaintiff, Michael A. Castellano, as an attorney-at-law of the State of New Jersey, against the defendant, the City of Newark, a municipal corporation, for alleged statutory compensation claimed to be due the plaintiff for taking acknowledgments to tax sales certificates of Eeginald Parnell, Esq., then director of the Department of Eevenue and Finance of the said city, and acting comptroller.

These acknowledgments were taken in connection with four tax sales, as follows:

On or about August 10th, 1933, 3,279 acknowledgments;
On or about August 15th, 1934, 2,921 acknowledgments;
On or about October 30th, 1934, and December 18th, 1934, 3,020 acknowledgments;
On or about November 15th, 1934, 2,144 acknowledgments.

This made a total of 11,364 acknowledgments admittedly taken by plaintiff for which he seeks to be compensated as an officer of this state, by a fee of $1 for taking each acknowledgment, a total of $11,364. with interest.

Mr. Castellano has been a member of the bar of onr state since November, 1907, a period of 32 years at the time he made his claim. He has been an employee of -the defendant, the City of Newark, for upwards of 30 years, and since 1920 held’the classified position under civil service, of title searcher.

In fact; he was, on September 18th, 1933, appointed supervisor of a newly created division called Tax Certificate Foreclosure Division, in the comptroller’s office, created for the purpose of reducing all tax certificates to cash. He received an annual salary- of $2,800'. He signed payroll sheets during the entire period covered by his alleged claim, as follows:

“Received from the City Treasurer the sum hereunder placed, opposite my name in full payment for services rendered by me and for the entire time specified in this Pay Roll.”

The plaintiff claims these acknowledgments were taken, by him pursuant to R. S. 54:5-46; N. J. S. A. 54:5-46,. which reads as follows:

“The officer holding the sale shall deliver to the purchaser a certificate of sale under his hand and seal, acknowledged by him as a conveyance .of land * *

R. S. 54:5-38; N. J. S. A. 54:5-38, provides for reimbursement to the .municipality for expenses of' sale as follows:

'“All fees and expenses (of the selling officer) shall form part of the tax lien-and be paid by the purchaser at the tax sale.”

The plaintiff-contends his authority to take said acknowledgments is-to be found in R. S. 46:4-6; N. J. S. A. 46 :14-6, as follows:

“The officers -of this state authorized to take acknowledgments or proofs in this state under authority of this section are the Chancellor, a Justice of the supreme court, á judge of the court of common pleas of any county, a master in chancery, an attorney at law, a notary public, a commissioner of deeds appointed for any county, a clerk of the court of common pleas of any county, a deputy county clerk, a surrogate or deputy surrogate of any county, and á register of deeds and mortgages of any county.”

He contends, having take a these acknowledgments by authority of the aforesaid statute (B. 8. 46 :14-6; N. J. S. A. 46:14-6) he did so as an officer of the state authorized by law so to do and further contends he is entitled to he compensated as a public officer authorized to take acknowledgments, and that his compensation is statutory, and governed by the provisions of B. 8. 22:4-12; N. J. S. A. 22 :4-12, as follows:

“Acknowledgments, proofs, affidavits and oaths. For a service specified in this section * * * judges and other officers .authorized by law to perform such services, shall receive a fee as follows:
“* * * For taking all acknowledgments, one dollar.”

This statute merely fixes the amount, not the person who shall pay. It says the officer shall receive, not that the person for whom the acknowledgment is taken and benefits thereby should pay. The city charged for each acknowledgment taken by the plaintiff as a part of the cost of sale, fifty cents (50c.) per acknowledgment.

No claim was made until on or about July 9th, 1939, by the plaintiff against the defendant city, and he admits that he did not know till shortly before that he had any claim. He claims he did not know at the time the acknowledgments were taken that he was entitled to statutory compensation.

The defenses of the city are that the plaintiff was its paid employee; that it was his duty as part of his employment and services to take acknowledgments to tax sale certificates for which he received an annual salary; that such salary was full compensation for his services, including the taking of acknowledgments; that these services were rendered without expectation of additional compensation; that the plaintiff signed payroll receipts in full payment for services rendered by him during this period; that this was a waiver by plaintiff and that he was paid in full.

The fact that he was a lawyer no doubt caused his assignment to head this division.

The plaintiff took acknowledgments in his capacity as an attorney-at-law. His employment with the City of Newark was as a supervisor, for which he received an annual salary and included therein and contemplated by the performance as a part of such services, was the taking of acknowledgments to tax sales certificates. As of the time of plaintiff performing this alleged service in taking acknowledgments, there was no statutory provision fixing compensation for such services by an attorney-at-law. The plaintiff bases his claim on B. 8. 22:4-12; N. J. 8. A. 22:4-12. That act provides for compensation in the sum of $1 for taking acknowledgments, by certain named officers and “other officers authorized by law,” which would now include attorneys. Chapter 214 of the Laws of 1920, predecessor to B. 8. 22:4-12; N. J. 8. A. 22:4-12, which was in force at the time the alleged services were performed, makes no provision for compensation as now claimed by the plaintiff, for taking acknowledgments by an attorney-at-law. This fact alone would have been sufficient answer to any claim the plaintiff now presents.

In addition to the above, it is clear from the facts, that this plaintiff had no understanding or agreement with the city and that not until nearly four years after taking his last acknowledgment did he attempt to present any claim against the defendant municipal corporation. The facts clearly disclose that he received his salary during this period, that he admitted his salary was for the services he performed in taking such acknowledgments, as he wrote under date of February 8th, 1928, to Director Parnell, among other things, as follows:

“In the 3 tax sales had in our regine, I took your acknowledgments, approximately 12,000 times, for which the city collected fifty cents for each acknowledgment, at that rate I earned for the city approximately $6,000.00 for that work alone. However, my salary since my appointment in August, 1933, to wit, 18 months, amounted to the sum of $3,687.00, just $2,313.00 less than what I earned for taking the acknowledgments.”

Concededly, Mr. Castellano expected or rather hoped for an increase in salary due to this assignment, but then by a change in the directorship of the department where he served, such increase was never granted. That is what he expected, not statutory compensation fox work he had already been paid for through receipt of his annual salary.

Assuredly, if he had any such claim he waived it from all the proofs in this case. Kane v. City of Newark, 129 N. J. L. 562; 30 Atl. Rep. (2d) 404; Vander Burgh v. County of Bergen, 120 N. J. L. 444; 200 Atl. Rep. 561; Weart v. First National Bank of Dunellen, 115 N. J. L. 128; 178 Atl. Rep. 758.

Judgment in favor of the defendant, no cause for action, will be accordingly entered.


author: Caeney, D. C. J.

text:
    District Court of the Second Judicial District of the County of Hudson.
    GRAY PRODUCTS, INC., PLAINTIFF, v. EDWARD FERRIS, DEFENDANT.
    Decided February 19, 1943.
    For the plaintiff, David H. Harris.

    For the defendant, John A. Traynor and Anthony P. La Porta.

   Caeney, D. C. J.

This is plaintiff’s action to recover damages occasioned by the failure and refusal of the defendant to accept certain merchandise and equipment set forth in a written contract and signed by the parties.

The defendant resists the action, contending that although he signed the contract, that it was signed by him under an express understanding and agreement with the agent of the plaintiff that the contract was to be subject to the approval of his wife, who refused to approve it. The wife was the owner and operator of the premises or the tavern where the equipment was to be installed.

The plaintiff contends that such oral or parol testimony of the defendant violates the parol evidence rule and is an attempt to change, alter or vary the terms of a written contract.

I am satisfied that the contention of the defendant does no violation to the parol evidence rule. The effect of such testimony, even though oral, is not to change or add to the written contract, but like fraud, goes to the existence of such a contract.

The plaintiff cites the case of Naumberg v. Young, 44 N. J. L. 331; but here, the court in speaking of the Pym v. Campbell case (which is not unlike the instant case), pointed out (at p. 336) :

“Another class of cases in which oral testimony of an agreement by the parties is held to be competent, are those in which the evidence is offered to show that the written agreement was made to take effect upon a condition which was not performed. * * * The defendant was allowed to prove by oral testimony that the agreement was drawn up and signed, with the understanding that it should be no bargain until approved by A, and that A did not approve of it.”

In the case of Cohen v. Cohn, 102 N. J. Eq. 245; 140 Atl. Rep. 319, reference there was made to the rule by the court which pointed out that parol evidence is admissible to show conditions relating to the delivery or taking effect of the instrument; as that it shall only become effective upon certain conditions or contingencies. This goes to the existence of the contract and tends to show that no contract ever existed.

In the instant case, I am satisfied that the contract was delivered and was not to become binding until it was approved by the wife of the defendant. The evidence was that the defendant’s wife refused to approve the contract.

Judgment will be entered in favor of the defendant.


author: Brown, S. C. C.

text:
    JOHAN SWENSON, PLAINTIFF, v. JOHN M. NAIRN, DOING BUSINESS AS SUPERIOR ELECTRIC COMPANY, WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY AND WESTINGHOUSE ELECTRIC SUPPLY COMPANY, DEFENDANTS.
    Decided March 26, 1943.
    For the plaintiff, McDermott, Enright & Carpenter.

    For the defendants Westinghouse Electric and Manufacturing Company and Westinghouse Electric Supply Company, Milton, McNulty <& Augelli.

   Brown, S. C. C.

The defendants Westinghouse Companies move, generally, to strike the amended complaint filed in the above entitled cause and specifically as they are respectively named in the seven counts therein, on the grounds: that sufficient facts are not set forth to constitute a cause of action; for uncertainty and statements of irrelevant matter that are designed to “embarrass the issue.” The general objection of misjoinder of parties has been abandoned. The motions addressed to the first count is denied as that count is directed against the defendant Nairn only and the cause of action arises out of a contract with him and no motion is made to

strike on behalf of that defendant. It follows as this part of the amended complaint is not stricken the motions made generally to strike should be denied and it is so determined. Introcasso v. Jasper, 10 N. J. Mis. R. 494; 159 Atl. Rep. 613; Malone v. B. of L. F. and F., 94 N. J. L. 347; 110 Atl. Rep. 696; Van Schoick v. Van Schoick, 76 N. J. L. 242; 69 Atl. Rep. 1080; McCarter v. United New Jersey Railroad Co., 76 N. J. Eq. 323; 74 Atl. Rep. 315; Fibel v. Von Fell, 63 N. J. L. 3; 42 Atl. Rep. 754; Van Horn v. Van Horn, 52 N. J. L. 284; 20 Atl. Rep. 485. To properly consider the remaining objections made specially to the remaining six counts, reference to the pleadings is necessary. In all the counts of the amended complaint it is alleged that the plaintiff was engaged in the business of building and repairing vessels and in connection therewith owned and operated a dry dock known as No. 2 in Jersey City. In the first count it is stated the defendant Nairn was engaged in ■fee business “of manufacturing, vending, installing and repairing various kinds of electrical machinery and appliances, including electric motors.” In October, 1937, the plaintiff entered into a written contract with Nairn “who agreed to install and did install” in place of the steam power then in use in the dry dock “electric and mechanical equipment, including a motor, such equipment and motor to be of suitable size, type and fitness to operate the said dry dock No. 2 in a satisfactory manner” under the terms of the written agreement which is pleaded as part of the amended complaint. It is further charged that Nairn knew, or should have known, if the motor failed during the raising of the dock it would sink to the river bed and be seriously damaged. In the written agreement Nairn is described as a “general agency” for the Westinghouse Electric and Manufacturing Company. He agreed with the plaintiff, owner, on or before November 19th, 1937, to “complete and finish the electrical and mechanical work to be done on and in Dry Docks Nos. 1 and 2” of plaintiff Swenson, according to specifications and estimate stated to be annexed to the agreement and made part thereof. The agreement also provides that the Westinghouse Electric and Manufacturing Company is to furnish the drawings to be followed as well as furnish all the materials of the kind and quality called for in the specifications. The agreement provides the first payment to be made “on completion of all work involved and on satisfactory operation of dry docks with loads. The remainder was to be paid thirty days after completion and proper and suitable tests with varied load conditions.” It was further provided that Nairn was to do all the work and furnish all the materials and to “provide everything necessary for a proper completion of the agreed on work.” The agreement further provided that all the covenants therein “apply to and bind the parties hereto and their legal representatives. Installation to cover installing one fifty-horse power and one thirty-horse power motor of Westinghouse Electric and Manufacturing Company; sleeve bearing motors together with all equipment both electric and mechanical and any material or labor not specifically mentioned but necessary to be supplied and installed as though mentioned.” The second count alleges the defendant Westinghouse Electric and Manufacturing Company was engaged in the business of manufacturing, vending, reconditioning, repairing and installing various kinds of electrical and mechanical equipment and appliances, including electric motors; that during the months of October and November, 1937, said company “by its servants, agents and employees in furtherance of the work of replacing the steam power then in use in plaintiff’s dry dock No. 2 with electrical and mechanical equipment, including a motor of suitable size, type and fitness to warrant and effect the satisfactory operation of the said dry dock, performed and supervised the work preliminary to the installation of the electric motor * * * and the mechanical and electrical equipment in connection thereto, including tests, estimates and appraisals and thereafter continued to perform and supervise the work of the installation of the said motor and electrical and mechanical equipment, including the testing thereof during and subsequent to said installation, when it knew or should have known that if said motor failed during the raising of the dry dock, the said dry dock would sink to the river bed and would be seriously damaged.” There is thereafter charged a duty owed by tho defendant to the plaintiff to exercise reasonable care and skill. A breach is alleged that “the defendant failed to nse reasonable care and skill but on the contrary was negligent and careless in that it did not make proper inspections and tests of the dry dock, its equipment and appurtenances, and did not make proper inspections and tests of the electric motor and electrical and mechanical equipment prior to, during and subsequent to the installation of the motor and equipment in order to determine the fitness thereof and failed to take reasonable precautions while conducting and supervising test runs of said motor and the equipment above mentioned in that it operated said motor while it was patently overheated and overloaded and that the known intention for a satisfactory and efficient operation of the dry dock was not achieved by reason of the carelessness and negligence of the defendant.” Count three contains substantially the same facts and statement of duty against the defendant Westinghouse Electric Supply Company. Counts four and five contain substantially the same allegations as the previous counts and joins all the defendants as being responsible. Counts six and seven respectively allege that the manufacturing company and the supply company, manufactured, reconditioned and sold and delivered the motors in question for installation in the dry dock “knowing that said motor was to be used to raise the dry dock and knowing that subsequent to its delivery of the said motor no tests thereof would he made prior to or other than the test-raisings of the dry dock and that the respective defendants knew or should have known that if the said motor failed the dry dock would sink; that it was the duty of said defendants to manufacture, recondition, repair, sell, deliver and test said motors with reasonable care; that the defendants were careless and negligent in each respect mentioned and that as a result the motor failed and burned out, among other things, as a result of a defective bearing.” The defendants contend that the separate counts do not allege a cause of action against the moving defendants named therein, because no relationship is shown between those defendants and the plaintiff by reason of which there was due no legal duty to use “due care.” In support of this contention the defendants cite Kahl v. Love (1874), 37 N. J. L. 5; Kingsley v. Delaware, Lackawanna and Western Railroad, 81 Id. 536; 80 Atl. Rep. 327; Morril v. Morril, 104 N. J. L. 537; 143 Atl. Rep. 337, and other cases which are not decisive of the questions presented under the pleadings. It may be true that privity of contract does not exist between the plaintiff and the moving defendants and hence the negligence charged may not arise out of such a relationship; nevertheless, there are many ways in which a relationship requiring due care comes into being without privity of contract. Besides relationship created by contract, both expressed and implied, out of which liability for a tort might arise, there is the fundamental legal right that every person owes to every one else the duty to exercise ordinary care not to injure them either in their property or person. The rule of reasonable care necessarily includes two persons or one person and some right or property in another. It has to do with a person’s act in reference to the person, property or rights of another, thus being a rule of relationship. Danger of damage or injury reasonably to be foreseen at the time of acting is an established test of negligence. Evers v. Davis, 86 N. J. L. 196; 90 Atl. Rep. 677. As a general rule any person who by his negligent personal conduct produces an injury to another is liable therefor. 29 Cyc. 475. It is true as a general rule, where the duty violated by the defendant was created solely by contract, that a cause of action arising out of such a violation is limited strictly to the parties in the contract and those in privity with them. No privity of contract is necessary, however, to sustain an action in tort by an individual specially injured by an act or omission constituting a breach of contract where it also constituted an invasion of the legal right of, or the violation of a legal duty owed to, the plaintiff, independently of or concurrently with the contract. Glanzer v. Shepard, 233 N. Y. 236; App. Div. 186 N. Y. Sup. 98. The separate counts which are specifically attacked on this motion, and in which the moving defendants are named, contain statements of facts, both general and specific, whereby the defendants are charged with damaging the property of the plaintiff through the negligence of those defendants and in violation of a duty which they owed in law not to so canse injury or damage to another. Whether the defendants were on or about the property of the plaintiff! at the time through privity of contract; as licensees; gratuitous performers or trespassers does not affect the stated rule of liability. The moving defendants also contend that the counts affecting them do not state facts sufficient to show that the negligence charged was the proximate cause of the damage sustained. The court finds that there are sufficient facts stated in the complaint of a failure to perform the duty imposed by law and that the failure thereof was the proximate cause of the damages sustained. As to the ground that all the counts from two to seven, inclusive, do not state a cause of action and are uncertain so as to embarrass a trial of the issues, it is found and determined that while the allegations of negligence and liability are quite general in character there is in every count some specific act of negligence charged and in each count a cause of action stated. The motion to strike each and every count in the complaint is denied.