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(108 A.)

(94 N. J. Law, 55) FINEBERG v. PUBLIC SERVICE RY. CO. (Supreme Court of New Jersey. Nov. 25, 1919.) 1. MASTER AND SERVANT 361-WORKMEN'S COMPENSATION; "EMPLOYÉ."

ed. It is suggested on behalf of the plaintiff that Timms and Bernstock were guilty of deception in their identification; that they kept back facts which would have tended to exonerate the plaintiff from the charge laid against him. Even if this be true, the fact can have no bearing upon the question wheth- Applicant for position as conductor, who er the defendant had probable cause for its was injured before he had received an appointaction, for, as already stated, it is not even ment and while being instructed in the duties suggested that it had knowledge of the al- of a conductor under an arrangement whereby leged dishonesty of its employés when it he was to receive no compensation during such caused these proceedings to be taken against time except a bonus in case he was ultimately accepted, was not an employé of railroad at the plaintiff; nor can it be said, as a mat-time of injury within Workmen's Compensation ter of law, that these two detectives were Act. acting within the scope of their employment [Ed. Note.-For other definitions, see Words when they fraudulently withheld facts from and Phrases, First and Second Series, Emthe police department of Jersey City, and ployé.] that for this reason their dishonest conduct is attributable to the defendant. Hartdorn v. Webb Mfg. Co., 89 N. J. Law, 262, 75 Atl. 893.

2. STREET RAILROADS

82-INJURY TO APPLICANT FOR POSITION UNDERGOING STRUCTION.

street railroad to exercise due care.

WARD INVITEE.

IN

32(2)-OWNER'S DUTY TO

The owner of a store or business or public house holds out a constructive invitation to the public to enter and to trade with him, such due care for the visitor or invitee while upon invitation implying an undertaking to exercise the premises commensurate with the situation and the circumstances.

Where applicant for position as conductor [4] What has been said is based upon the on street railroad was injured before having theory upon which the plaintiff's case was received an appointment and while being inrested, namely, that the alleged malicious structed under agreement that he was to reprosecution of which he complains was in-ceive no compensation while being instructed, stituted by the defendant. But our examina- except a bonus in the event of being accepted, tion of the proofs in the case fails to dis- his right to recover for injuries from derailment close anything which will support this con- of the car was not that of a servant, or that of tention. The defendant company's two de-a trespasser, but was based upon the relationtectives reported the robbery to police head- ship of mutual express invitation, requiring quarters at Jersey City, and described the occurrence to the officer in charge. He there- 3. NEGLIGENCE upon, acting as the representative of one of the departments of the city government, and not at all as the agent of the defendant company, caused the arrest of the plaintiff and his confinement in prison. It appears that the complaint then made against the plaintiff was made by a member of the city police force, and there is nothing in the case to show that the defendant was responsible for the making of that complaint. So, too, the hearing before the police magistrate, and the bonding of the plaintiff to appear before the grand jury, were not at the instigation of the defendant; nor were the parties responsible for these various steps in the proceeding (all members of the police force) in any way acting as representatives of the defendant. Nor is there anything in the evidence which will support the conclusion that the defendant company had anything to do with the action of the grand jury in find

Error to Circuit Court, Hudson County.

Action by Max Fineberg against the Public Service Railway Company. Verdict for plaintiff, and defendant brings error. Affirmed.

Argued June term, 1919, before the CHIEF JUSTICE and MINTURN and BLACK, JJ. Charles M. Egan, of Jersey City, for plain

tiff.

Lefferts Hoffman, Leonard J. Tynan, and George H. Blake, all of Newark, for defend

ant.

MINTURN, J. The plaintiff on May 8, 1918, signed an application for an appointment as conductor, in which application he

stated:

ing the indictment. For all that appears to the contrary, the plaintiff having been held by the police magistrate to appear before the grand jury, the proceedings subsequent thereto were all the ordinary routine steps "I hereby make application for a position as by which a criminal charge is brought to conductor in the service of the Public Service the attention of a grand jury for its investi-Railway Co. with the full understanding that in the event of my securing employment I am to gation and action. abide by such rules and regulations governing The views which we have expressed upon the employés as the management may from both of these matters lead to the conclusion time to time establish. If employed I promise that the judgment under review should be to loyally and faithfully serve the company, reversed. etc."

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He was then and there sent to the school, therefore, is not the determining rule of liaof instruction which he attended for three bility. days and then left.

On June 17, 1918, the plaintiff signed defendant's agreement "that the Workmen's Compensation Act (Act April 4, 1911 [P. L. p. 134], as amended by Act April 1, 1913 [P. L. p. 302]) shall govern the parties in any relation of employer and employé into which they have or may enter."

During the entire day he was under the instructor upon a trolley car, and during the time he was being instructed as a conductor he was paid nothing. There was no arrange ment made with the company through which he was to be paid anything. On the third day, about 5:30 p. m., while being instructed, he was in a car going from Jersey City to Newark, and while he was nearing a switch, the car going at a high speed jumped the track and overturned, pinning plaintiff under the rear platform. For the injuries thus sustained he obtained a verdict at the circuit, and the result of that trial is before us upon exceptions.

The plaintiff was not appointed a conductor at the time of the accident, and was receiving no compensation for the time during which he was being instructed in the duties of a conductor. The $10 bonus which he was to receive was entirely conditioned upon the fact that if, after instruction, he were found to be competent, and should receive his appointment as conductor, and remain in the employ of the company for 30 days, the bonus would be paid to him.

[1] It is therefore clear that the plaintiff was not an employé of the defendant at the time of the accident, and the state Compensation Act therefore does not apply to him. But two questions are before this court, presented by the defendant's grounds of appeal, viz.: The refusal of the court to grant defendant's motion for a nonsuit; and the refusal of the court to grant defendant's motion for a direction of a verdict in its favor. The motion for nonsuit was based upon three grounds:

First. That at the time of the happening of the accident, plaintiff was in the employ of the defendant, and was controlled by the Compensation Act.

Second. That the plaintiff was engaged in a common enterprise of service in the employ of the defendant, and

Third. That the plaintiff was a licensee, and not an invitee upon defendant's car.

[2] The solution of the entire inquiry thus presented, it will be observed, is dependent upon the legal status occupied by the plaintiff at the time of the accident. Manifestly he was not in the defendant's employ, because his employment obviously was dependent and conditioned upon his qualification to serve under the instructions then being extended to

Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478, and the cases following it, in which the doctrine applicable to licensees is discussed, make it manifest that the doctrine there enunciated has no application, except in those cases where the effort is to distinguish between the status of a trespasser, to whom no duty involving care is owing, and one who by permission, express or constructive, enters upon the locus in quo, to whom as licensee the only duty owing is to refrain from acts willfully injurious. Duel v. Mansfield Plumbing Co., 86 N. J. Law, 582, 92 Atl. 367; Guinn v. D. & A. Tel. Co., 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668; Coyne v. P. R. R., 87 N. J. Law, 257, 93 Atl. 595; Tronto v. Reo Motor Co. (Err. & App.) 106 Atl. 383.

That the situation here presented involves more than the possession of a mere license, which usually inures only to the benefit of the licensee, without any reciprocal benefit to the licensor, must be obvious from the fact that a tentative or conditional agreement existed between the parties, which was expected by its terms to ripen into a contract of service, mutually beneficial to both, and from which would be finally evolved the legal status of master and servant.

Such a situation manifestly presents a case of mutual express invitation, where benefit from the relationship thus created is to inure to both parties, not unlike the relationship

created and defined at common law in the

law of bailments by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, and subsequently emphasized by Judge Story in his work on Bailments, and to which the civil law applied the term "mandatum," in which the relationship is created by agreement, but is substantially gratuitous or without consideration. 2 Street's Legal Liability, 278.

Chancellor Kent, in treating of the care required in such a situation, quotes Sir William Jones as authority for the rule that

"The mandatory is bound to use a degree of diligence and attention suitable to the undertaking and adequately to the performance of it." 2 Kent's Com. 570.

This statement manifestly is but an elaboration of our modern definition of due care under the circumstances, and thus Chancellor Kent, further elaborating the doctrine, says:

"It is conceded in the English as well as in the Roman law that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance." Id.

This court in La Brasca v. Hinchman, 81

(108 A.)

388-WORKMEN'S

to determine the liability of a landlord, who | 2. MASTER AND SERVANT
without legal obligation so to do undertook
the repair of the demised premises, from
which act damages resulted to the tenant. In
that case we reviewed the question now pre-
sented, and the rule there enunciated was
similar to the common-law declaration, in-
volving gratuitous bailments to which we
have adverted. The rule thus applied is sim-
ilar in legal import, and doubtless for similar
reasons, to the rule invariably applied to cas-
es involving an invitation, where the benefit
resulting to the parties involved in the trans-
action is concededly reciprocal.

COMPENSATION ACT; FATHER AS "DEPEND-
ENT" OF MINOR CHILD.

That a deceased minor servant gave his wages to his father, in aid of him and his children, constituted the father an actual "dependent" within the Workmen's Compensation Act. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Depend

[3] Thus the owner of a store or business or public house holds out a constructive invitation to the public to enter and to trade with him. This invitation implies an undertaking to exercise care for the visitor or invitee while upon the premises, commensurate with the situation and the circumstances surrounding the locus in quo, over which the invitee has no power of control, and presumably, unless the danger be obvious, no knowledge of existing danger. Cases of that general character are illustrated inter alia by Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139; Higgins v. Goerke Co., 91 N. J. Law, 464, 103 Atl. 37; Cooper v. Reinhardt, 91 N. J. Law, 402, 103 Atl. 24; MacDonough v. Woolworth Co., 91 N. J. Law, 677, 103 Atl. 74.

In either aspect of the situation the defendant was under the legal obligation to exercise due care under the circumstances, and to the jury in this instance was properly committed the solution of that issue of fact.

The judgment under review will be therefore affirmed with costs.

(93 N. J. Law, 332)

COLUCCI v. EDISON PORTLAND CEMENT
CO. (No. 218.)

(Supreme Court of New Jersey. Oct. 29,
1919.)

1. MASTER AND SERVANT 373-WORKMEN's COMPENSATION ACT; SUPERIOR'S ACT CAUS

ING INJURY IN COURSE OF EMPLOYMENT.

Where a servant, on account of shortage of labor, attempted to work through two shifts, and left his place of work and went to sleep in a house on the premises, and his immediate superior, in order to awaken him, threw a brick upon the roof, and the brick went through and killed the servant, the act of the superior added a risk of danger fairly within the conadded a risk of danger fairly within the contemplation of the employer, so that the servant's death resulted from an "accident arising out of and in the course of his employment" within the Workmen's Compensation Law.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

ent.]

WORK

3. MASTER AND SERVANT 417(7)
MEN'S COMPENSATION ACT; FINDINGS SUP-
PORTED BY TESTIMONY NOT REVIEWABLE.
Findings of the trial judge in a proceeding
under the Workmen's Compensation Act to
obtain compensation for the death of a serv-
ant cannot be reviewed, if supported by testi-

mony.

Certiorari to Court of Common Pleas, Warren County.

Proceedings by James Colucci, under the obtain Workmen's Compensation Act, to compensation for the death of a son, opposed by the Edison Portland Cement Company, the employer. There was an award of compensation, and the employer brings certiorari. Award affirmed.

Argued June term, 1919, before TRENCHARD, BERGEN, and KALISCH, JJ.

William H. Morrow, of Belvidere, for prosecutor.

George M. Shipman, of Belvidere, for defendant.

KALISCH, J. The prosecutor brings up for review a judgment of the Warren county common pleas court, adjudging compensation, under the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 309), based upon a finding that the petitioner's decedent's death was the result of an accident arising out of and in the course of his employment.

The facts which give rise to the mooted question in this case are briefly these: The deceased was a minor. He entered the prosecutor's employ on August 18, 1917, and continued therein until June 18, 1918, the date of the accident which caused his death. The deceased worked in the crusher department, an inclosed tunnel or chute, through which conveyors carrying stone passed. These conveyors in their passage spill or drop stone, and it was the work of the deceased to clean up the spills. It appears that unless the spills are cleaned up they tend to clog and stop the operating machinery of the plant. stop the operating machinery of the plant. The character of the employment was such The character of the employment was such that the place where the deceased was obliged to do his work would become filled with stone dust, and this in conjunction with the heat necessitated those employed in that department at this particular work, from time to time, to seek the fresh air. The hours of

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employment were from 7 a. m. to 5 p. m., and from 6:10 p. m. to 7 a. m. There was a day and night shift. On account of the prosecutor being short of men to do the work, it appears that the deceased immediately preceding the day of the accident had worked nearly 24 hours continuously. He worked the entire day on June 16th and through the night of June 17th, being off during the day of June 17th until 6 o'clock, at which hour he resumed his work. He was injured on the following morning. The testimony discloses that at about 2:30 on that morning he went to the drier house on the company's premises several hundred feet from the place where he worked and sat or laid himself down upon a pile of bricks and went to sleep. Sabo, who, it appears, was in full charge of the night shift, finding the decedent absent from his work, started to look for him at about 4 o'clock a. m. with the purpose, he says, to get the decedent back to work to clean out the spills, and Sabo finding decedent asleep in the drier house tried to awaken him, but failed. About an hour later, Sabo, upon inquiry, ascertained that the decedent was still asleep in the drier house, went there again, and, as Sabo reiterates, with the purpose of bringing the decedent back to his work and finding him still asleep, he (Sabo) went up a tower adjoining the drier house and threw a brick on the roof of the drier house with the intention of causing dust and dirt to fall upon decedent, and thus awaken him so that he would come back to his work. The brick, or whatever it was, broke its way through the roof and fell upon the decedent and inflicted a mortal injury which caused his death on the following day.

It is conceded, in the brief of counsel for the prosecutor, that Sabo was the decedent's "immediate superior," and there is evidence which would justify a finding that he was the alter ego of the prosecutor.

Counsel for the prosecutor contends that the facts of the present case bring it within the control of Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203, and Mountain Ice Co. v. McNeil, 91 N. J. Law, 528, 103 Atl. 184,, L. R. A. 1918E, 494. We think not. The Court of Errors and Appeals, in an opinion by the learned Chancellor in the last-cited case (91 N. J. Law, at page 528, 103 Atl. at page 184, L. R. A. 1918E, 494), laid down the doctrine that an accident "caused by a fellow workman doing a wrongful act entirely outside the scope of his employment is not an accident" arising out of the employment, "unless it appears that what happened was a risk reasonably within the contemplation of the employer."

[1] In the present case, the accident was not the result of a wrongful act of a fellow workman, but of a representative of the

erly said that the risk of injury was not fairly within the contemplation of the employer. In this respect this case is clearly distinguishable from the cases relied on by the prosecutor.

We think the case sub judice bears a strong resemblance in a principal feature to Terlecki v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023, where a factory employé quit work shortly before noon and was preparing to go home, and for which purpose she first went to a passageway, where there was a piece of looking glass fastened against a post about 32 feet from the machine where she worked, to comb the wool out of her hair, as was the custom of employés, to the knowledge of superintendent and overseer, and while combing her hair she was injured; her hair being caught in moving machinery near which she was standing. This court held that she was entitled to compensation. Mr. Justice Swayze, speaking for the Supreme Court, at page 455 of 85 N. J. Law, at page 1024 of 89 Atl., said:

"The question whether the accident arose out of the employment is perhaps more doubtful. The employment was not indeed the proximate cause of the accident, but it was a cause in the sense that but for the employment the accident would not have happened. The employment was one of the necessary antecedents to the accident."

This case was affirmed, by the Court of Errors and Appeals, for the reasons expressed in the opinion in 86 N. J. Law, 708, 92 Atl. 1087.

So, in the case under discussion, it is quite evident that the employment was not the cause of the accident, yet it is equally clear that but for the employment the accident would not have happened. Besides, an important feature is present here which was absent in the Terlecki Case, and that is that the decedent's injury was the result of the superintendent's act. When Sabo used the brick or whatever it was to startle the decedent out of his sleep so that he might go back and continue his work, Sabo added a risk of danger to decedent's employment, for the consequences which ensued the prosecutor must be held answerable.

It is suggested in the brief of counsel for the prosecutor that the decedent had abandoned his work by going to the drier house to rest and sleep, and that therefore, at the time of the accident, he was not engaged in the course of his employment. There is no merit in this.

It was not essential that the deceased should have received his injury at the place where his work was to be done. The question is whether the accident arose in the course of decedent's employment. It is clear from the superintendent's testimony that the accident occurred in the course of

(108 A.)

to the drier house to arouse the decedent | tion in substance that, if life imprisonment is from his sleep so that he might go back to imposed, it may be disregarded by court of his work. Sabo did not consider that the pardons, as well as by statute as to release on decedent's hours of employment were over, parole, was not erroneous, because having a and the former's admitted efforts to bring tendency to influence the jury in determining the decedent to his work were clearly based whether to recommend life imprisonment. upon an assumption, fully justified by the 2. CRIMINAL LAW 797-INSTRUCTION ON evidence, that the time of employment of the deceased had still several hours to run.

In Bryant v. Fissel, 84 N. J. Law, 72, at page 76, 86 Atl. 458, at page 460, Mr. Justice Trenchard, speaking for this court in discussing what is meant by the words "in the course of," adopts the definition found in Fitzgerald v. Clarke & Son (1908) 2 K. B. 796, where it was said:

"That the words 'in the course of' refer to the time, place, and circumstances under which the accident takes place."

Now, here, referring to the time, place, and circumstances under which the accident took place, which resulted in the death of the decedent, as related by the superintendent, there can only be one fair conclusion that the accident happened in the course of the employment of the deceased.

RECOMMENDATION OF LIFE IMPRISONMENT.

In speaking of supplement to Crimes Act of 1916, it was not error to instruct that jury might supplement their verdict by recommendation of life imprisonment, if they concluded that by reason of the circumstances of the case, or because of any other reason, such action would be justified.

3. CRIMINAL LAW 822(1)-INSTRUCTION ON RECOMMENDATION OF LIFE IMPRISONMENT

NOT OBJECTIONABLE.

Part of instruction that responsibility is upon jury to determine whether facts and circumstances are of such character as to justify recommendation of life imprisonment held not objectionable, when read in connection with Act 1916, the whole instruction being plain. what preceded it, under supplement to Crimes 4. HOMICIDE 282-IRRESISTIBLE IMPULSE

AS AFFECTING DEGREE OF HOMICIDE.

Instruction that if "there existed in the defendant's mind an irresistible impulse to took place under the influence of such an imtake the life of the deceased, and the shooting pulse, the defendant cannot be convicted of murder in the first degree," was erroneous, since, conceding that such impulse may be considered in determining degree of homicide, the question whether act was willful, deliberate, and premeditated, notwithstanding impulse is

IRRESISTIBLE IM

PULSE NO EXCUSE FOR CRIME.

[2] The only other point we need to consider is the assertion that there was no proof that the father or any other persons named in the petition was dependent upon the deceased. There is proof that the deceased gave his wages to his father, who testified that he needed these contributions for the support of himself and his children. This was sufficient to support a finding that the father was an actual "dependent" for the jury. within the meaning of the Workmen's Com-5. CRIMINAL LAW 50 pensation Act. Conners v. Public Service Electric Co., 89 N. J. Law, 99, 97 Atl. 792. Partial dependency of a father upon his son's earnings is sufficient to constitute him an actual dependent. Jackson v. Erie Railroad Co., 86 N. J. Law, 550, 91 Atl. 1035. [3] We have examined the other reasons presented by the prosecutor for a reversal of the judgment; but, as they appear to involve a review of the findings of the trial judge on questions of fact, such findings beStephen Carrigan was convicted of murder ing supported by testimony, we cannot prop-in the first degree, and brings error. Aferly consider them.

The judgment is affirmed, with costs.

(93 N. J. Law, 268)

STATE v. CARRIGAN. (Supreme Court of New Jersey. Nov. 7, 1919.) 1. CRIMINAL LAW 768(4)-INSTRUCTION AS TO RECOMMENDATION OF LIFE IMPRISONMENT NOT OBJECTIONABLE.

In speaking of supplement to Crimes Act of 1916, as to jury in case of first degree murder recommanding life imprisonment, instruc

The doctrine that a criminal act may be excused or mitigated upon the notion of an irresistible impulse to commit it, where the offender had the mental capacity to appreciate his legal and moral duty in respect to it, has no place in the law.

Error to Court of Oyer and Terminer, Essex County.

firmed.

Argued June term, 1919, before GUMMERE, C. J., and MINTURN and BLACK, JJ. Andrew Van Blarcom, of Newark, for plaintiff in error.

J. Henry Harrison, Prosecutor of the Pleas, and John A. Bernhard, Asst. Prosecutor of the Pleas, both of Newark, for the State.

GUMMERE, C. J. The plaintiff in error was indicted for the murder of his mistress, one Florence Hicks. He was convicted on the trial of the indictment, and the jury by

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