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favor of the plaintiff on the conflicting evi- to be vicious in order to run away, but may dence of the parties involved a finding of be merely nervous and timid; or the horse fact entirely within his province and wbicb may be neither nervous nor timid, and yet be is not before us on this appeal.

frightened by some cause against which due The judgment will be affirmed.

care on the part of the owner should have guarded. No proof of a vicious propensity

therefore was called for. (77 N. J. L. 364)

The judgment will be affirmed. FRANCOIS V. HANFF. (Supreme Court of New Jersey. Feb. 23, 1909.)


GUDE V. PENNSYLVANIA R. CO. The unexplained presence on a public high-|(Supreme Court of New Jersey. Feb. 23, 1909.) way of a team of runaway horses barnessed to a wagon, unattended by the owner or other per- CARRIERS (8 185*)-CONNECTING CARRIERS son, raises a presumption of negligence on the

INJURY TO FREIGHT. part of the owner, and, if they collide with an- The last of a line of connecting carriers is other vehicle on the street because they were presumed, in the absence of proof to the contrapot under proper control, the owner will be lia- ry, to bave received freight in the same condi. ble for damages resulting therefrom.

tion in which it was delivered to the initial car [Ed. Note. For other cases, see Highways, rier, and, if it appears to have been shipped in Cent. Dig. 88 468, 472; Dec. Dig. 184.*]

good order, and is in a damaged condition when

the last carrier offers to deliver it, a presump2. Kokoll v. Brohm & Buhl Lumber Co. tion arises that the injury resulted from the (N. J. Sup.) 71 Atl. 120, followed.

negligence of the last carrier; but if there be (Syllabus by the Court.)

no proof that the freight was in any other con

dition when it was delivered to either of the pre Appeal from District Court of Hoboken. ceding carriers than as found in the hands of

Action by Alexander Francois against Max the last carrier, the presumption of negligence Hanff. Judgment for plaintiff. Defendant for there must be some proof of a change in

on the part of the final carrier does not arise, appeals. Affirmed.

condition of the freight between shipment and Argued November term, 1908, before GAR- delivery, to warrant the presumption that a RISON, PARKER, and VOORHEES, JJ.

different condition exists because of negligence

of the carrier. Charles H. Burtis and Henry Singer, for (Ed. Note.-For other cases, see Carriers, appellant James O. Agnew, for appellee. Cent. Dig. $ 841; Dec. Dig. $ 185.*]

(Syllabus by the Court.) PARKER, J. This appeal brings up the

Appeal from District Court of Newark. judgment in favor of the appellee, plaintiff

Action by Arthur J. Gude against the below, in the district court of Hoboken for Pennsylvania Railroad Company. Judgment damages to plaintiff's horse and wagon and for plaintiff, and defendant appeals. Reharness by reason of a collision with a versed. horse and wagon claimed to have belonged

Argued November term, 1908, before REED, to the defendant. The evidence in the case BERGEN, and MINTURN, JJ. showed that plaintiff's horse and wagon were standing in the street alongside the curb

Vredenburgh, Wall & Carey, for appellant when they were run into by another horse W. E Andrews, Jr., for appellee. and wagon; the latter horse running away, and there being no driver at all in the wag. BERGEN, J. The plaintiff recovered a on or anywhere in sight.

judgment against defendant for damages to The first point urged before us is that the goods shipped to him from Brighton, Ohio, court below should have nonsuited on the and received by the defendant company at ground that there was no proof of any neg-Newark, N. J., in a damaged condition. To ligence on the part of the defendant. The support his case the plaintiff introduced in defendant was sworn and testified that he evidence a freight receipt for transportation owned the horse and wagon, and that the charges, which was made out and delivered facts proven in this case with reference to by the defendant company in Newark, N. J., the runaway horse and wagon raise a pre- the destination of the shipment. The receipt sumption of negligence has been very re- purported to be in the name of "Union Line," cently decided by this court in the case of but immediately under these words there Kokoll v. Brohm & Buhl Lumber Co. (N. J. was printed, “Pennsylvania Railroad ComSup.) 71 Atl. 120, with the finding and rea pany, Pennsylvania Company." It was soning of which we entirely agree.

signed by the agent of defendant and, among We think, also, that this reasoning also other things, recited that the goods were disposes of the appellant's second point, that shipped by the Union Line from Dayton, there was no proof that the defendant's Ohio, and that the original point of shipment horse was of a vicious disposition, and that was Brighton, Ohio. The plaintiff proved the defendant had knowledge of its vicious the receipt of the goods by the defendant propensity. Such proof is not necessary in a company in Newark, and that they were case of this kind, for a horse does not have then damaged; but there was no proof of its condition when delivered in Ohio for trans-, there is nothing upon which to rest a preportation. The defendant moved for a non- sumption that they were not damaged when suit, upon the ground that the declaration delivered by the shipper. There is no reason charged that the goods were shipped over why goods may not be shipped although the defendant's road from Cincinnati, and damaged, and without proof to the contrary there was no proof that they came into the the presumption that they were, when shiphands of the defendant company, or were ped, in the condition found at their destinadelivered to it in good condition. The tion, is at least as strong as that they were freight receipt was made out by the duly au- not. The condition in which they were deliv. thorized agent of the defendant company, cred for shipment is within the knowledge and its truth is not disputed. If the receipt of the shipper, and, proof of it readily obfor freight does not warrant the inference tainable, which would not be the situation if that the “Union Line" was managed and the dainage happened while passing from controlled by the defendant from Brighton, one to another of intermediary carriers, and Obio, then there was no proof that the goods because of the difficulty of showing by were originally received by the defendant which of them the damage was done, the as the initial carrier; but it is admitted that rule was adopted that goods delivered to one during some part of the route the goods carrier in good order are presumed to have came into the hands of the defendant, and come to each successive carrier in like conthat it was the last of the connecting car- dition. riers. We do not think the receipt is evi. As there was no proof in this case that dence that the defendant was the initial car- the goods were, when shipped, otherwise rier, for it states that the original point of than as they were at the end of the journey, shipment was Brighton, and that it was there can be no presumption that the last shipped from Dayton, Ohio, over “C. H. D.," carrier received them in any other or difwhich the case shows stands for the Chica- ferent condition, and for this reason the go, Hamilton & Dayton Railroad, by the judgment should be reversed. Union Line. The utmost that can be inferred from the receipt is that the defendant received the freight from another carrier at

(77 N. J. L. 404) Dayton, Ohio, wbich had brought it from


(Supreme Court of New Jersey. Feb. 23, 1909.) The rule undoubtedly is that the last of a BROKERS ($ 43*)–COMPENSATION-RIGHT TO. line of connecting carriers is presumed, in The plaintiff, a real estate agent, without a the absence of proof to the contrary, to bave written agreement that the seller would pay received freight in the same condition in commissions if the agent procured a purchaser which it was delivered to the initial carrier, who subsequently purchased to the property and

for real estate, called the attention of a person and if it appears to have been shipped in induced him to consider the matter, and he purgood order, and is in a damaged condition chased the property from the vendor without when the last carrier offers to deliver it, a

further action on the part of the agent who ren

dered no further service in the matter. After presumption arises that the injury resulted he had seen the purchaser and called his attenfrom the negligence of the last carrier; but tion to the property, the agent obtained from if there be no proof that the freight was in the vendor a written promise to pay commisany other condition when it was delivered sions if he brought about a sale. Held that, as

no service was rendered by the agent after the to either of the preceding carriers than as written agreement was executed, the written found in the hands of the last carrier, the contract was nothing more than a subsequent presumption of negligence on the part of the promise to pay for services already rendered,

and, having no consideration to support it, falls final carrier does not arise. In the present within the rule laid down in Stout v. Humphcase there was no waybill or receipt for de- rey, 69 N. J. Law, 436, 55 Atl. 281. livery by the shipper showing the condition [Ed. Note.-For other cases, see Brokers, Dec. of the goods when delivered to the initial Dig. § 43.*] carrier, as is usually the case. If there had (Syllabus by the Court.) been, and it stated that the freight was re

Appeal from District Court of Newark. ceived in good order, it, if offered as evi.

Action by Frank L. Shields against Joseph dence, would have been prima facie proof sterrat. Judginent for plaintiff, and deof its contents, and, until rebutted, which it fendant appeals. Reversed. may be (Ellis v. Williard, 9 N. Y. [5 Seld.]

Argued November term, 1908, before 529), the presumption would be that the REED, BERGEN, and MINTURN, JJ. goods were delivered by the shipper to the initial carrier in good order, and that they

Joseph A. Connolly, for appellant, Frank were in that condition when delivered to the A. Boettner, for appellee. successive carriers; but a presumption must rest upon some proven or admitted fact or BERGEN, J. This action is based upon a facts, and without it appears that the goods written contract dated May 25, 1908, which were not in a damaged condition when the reads as follows: "I, Joseph Sterrat, of the shipper delivered them to the first carrier, 1 township of Nutley, N. J., agree to give to F. L. Shields the sum of four hundred dol-, whether the subsequent promise to pay is in lars, ($400.) provided the sale of a ten (10) writing or oral, if there was no consideration acre farm located west and north of the At- for the agreement. It therefore follows that water Realty Company, is made by J. E. the plaintiff was not entitled to recover, and Finger or F. L. Shields, at agreed price of that the nonsuit should have been allowed. fifty-four hundred dollars ($5400.) Joseph For this reason, the judgment below is Sterrat." It appears from the state of the reversed. case sent up by the trial court that on May 24th, which was Sunday, the plaintiff was au

(77 N. J. L. 344) thorized orally by the defendant to secure a

PINE V. SUPREME CIRCLE BROTHERpurchaser for the lands described in the con

HOOD OF THE UNION. tract, and that on the same day he called upon the president of the realty company, (Supreme Court of New Jersey. Feb. 23, 1909.)

ACand offered the land to him; that the presi- INSURANCE ($ 815*) – BENEFIT SOCIETY

TION TO RECOVER BENEFITS-DECLARATION. dent of the proposed purchaser promised to A count of plaintiff's declaration sets out consider the matter and let the plaintiff know that one Pine was a beneficial member of the dewhether or not the company would buy by fendant society, and as such was a member of the following Tu lay; that on Monday, May plaintiff is the sole beneficiary of Pine; that

the death benefit fund of the society; that the 25th, the plaintiff telephoned to the defend- | Pine is dead; and that the plaintiff as sole benant that he desired a written contract; that eficiary is entitled to the death benefit fund. this contract was written and signed by the

Held, that the count is bad on demurrer in

failing to state what class of persons is legally defendant and mailed to the plaintiff May entitled to the death benefits of deceased mem26th; that without further communication bers, and that the plaintiff comes within that with the plaintiff Mr. Atwater, the president class, and is the sole member of the class, and of the realty company, went to the defend therefore the sole beneficiary. ant on May 26, 1908, and purchased the prop- Dec. Dig. $ 815.*]

[Ed. Note.-For other cases, see Insurance, erty. There was a motion for a nonsuit and

(Syllabus by the Court.) also for a finding in favor of the defendant. Both motions were refused, and there was

Action by Amy H. Pine against the Sua judgment for the plaintiff, which the de- preme Circle Brotherhood of the Union. fendant seeks to reverse by this appeal.

Demurrer to declaration sustained. Two reasons were urged by the appellant,

Argued November term, 1908, before GUMthe defendant below, upon the argument of MERE, C. J., and SWAYZE and TRENCHthis appeal:

First, that the judge upon the ARD, JJ. trial admitted the contract in evidence, al- Higbee & Coulomb, for plaintiff. John F. though the execution thereof by the defend-Harned, for defendant. ant was not proven. It is sufficient to say on this point that there was no subscribing wit- TRENCHARD, J. This is a demurrer to ness, and, the paper being shown to Mr. Ster-a declaration. As amended by consent at the rat, he admitted that he wrote and signed argument, it applies only to the first count. the contract, and then mailed it to the plain- That count, which was also by consent tiff. The second objection urged is that amended at the argument, sets out that one there should have been a nonsuit because John F. D. Pine in the year 1895 was a benethe contract was made after the services had ficial member of the defendant society, and been rendered. It appears that at the time as such was a member of the death benefit the plaintiff called upon Mr. Atwater there fund of the society; that Pine, being such was no written contract or agreement be a member, disappeared at Cardiff in the tween the plaintiff and the defendant for kingdom of England on the 25th day of Sepcompensation or commissions upon the sale tember, 1895, and has never been heard of of this real estate, and that the agreement since that time by the plaintiff or any one was made by the purchaser with the owner else; that Pine has remained beyond the sea without again seeing the plaintiff, so that and has absented himself from this state and whatever the plaintiff did towards bringing from the place of his last residence for more about this sale was done on Sunday, and than seven years successively; that the plainbefore there was any written contract for tiff for and in behalf of Pine since the year commissions as required by law, and if the 1895 has kept and performed all the terms, plaintiff is entitled to recover anything it is conditions, and acts which he would have because on the 24th day of May, before the kept, maintained, and performed ; that she is contract upon which he relies had been ex- the sole beneficiary of Pine; that Pine, by ecuted, he had called the attention of a pur- reason of his absence from the state for more chaser to the property, who did afterwards than seven years, and not being heard of durpurchase it, so that this contract was a sub-ing that time, is presumed to be, and is, dead; sequent promise to pay for services already and that, being dead, the plaintiff as sole rendered, and falls within the ruling in beneficiary is entitled to a death benefit fund Stout v. Humphrey, 69 N. J. Law, 436, amounting to $500. 55 Atl. 281. It can make no difference The only ground of demurrer necessary to

N. J.)


consider is the third, which is that the, tion precincts or districts within a municicount "does not show any duty or obligation pality. by the defendant to the plaintiff.” We think The first reason rests upon the fact that the count fails to disclose a cause of action. the act of 1908 is entitled “A supplement to The statement that the plaintiff is the sole an act, entitled An act to provide for the beneficiary of the deceased member is a purchase of voting machines, and to regulate mere conclusion. A statute of this state (P. the use of the same at elections, approved L 1898, p. 425, § 9) provides that it shall be April 28, 1905.'” The point insisted upon is lawful for such benevolent associations to that the act is not a supplement, but either contract with their members to pay death an amendment or a repealer of the act of benefits according to the rules or by-laws April 28, 1905 (P. L. p. 386). We see no adopted by such associations, and to agree force in this argument. By the act of 1905 to pay the same to the husband, wife, father, the Secretary of State was empowered to mother, son, daughter, brother, sister, or le determine in what election districts voting gal representative of such member after his machines should be used. The effect of the or her death. The declaration, therefore, act of 1908 is to give the voters of any elecshould state what class of persons is legally tion district the right to review his action. entitled to the death benefits of a deceased it is a supplement or addition to the scheme member either by virtue of the laws of this of the original act, and the title, as a whole, state or the rules and by-laws of the organ- evinces an intent to legislate upon the use of ization or by both, and should also show that voting machines. the plaintiff comes within that class, and is

The objection that the act is a private, lothe sole member of that class, and therefore cal, or special act is equally futile. The conthe sole beneficiary. This the count of the stitutional prohibition appealed to seems to declaration does not do, and for that reason be the one directed against private, local, or is bad on demurrer.

special acts affecting the internal affairs of The defendant is entitled to judgment on municipalities. The method of conducting the demurrer.

elections is a matter of general state con(77 N. J. L. 288)

cern, and it has always been a matter of MARA et al. v. MAYOR, ETC., OF CITY OF state regulation. We see no reason to hold, BAYONNE (17 cases).

nor are we pointed to any authority which (Supreme Court of New Jersey. Feb. 23, 1909.) requires us to decide, that an act regulatSTATUTES (8$ 94, 120*)SUPPLEMENTAL ACT

ing the machinery of elections has to do with TITLE-SPECIAL OR LOCAL ACTS-REGULA- the internal affairs of a municipality. MoreTION OF MUNICIPAL AFFAIRS.

over, the act is neither private, local, nor The act of April 10, 1908 (P. L. p. 266), is special. It provides a general scheme by constitutional. (Ed. Note.-For other cases,

which any district in which the Secretary of

see Statutes, Cent. Dig. 103, 125, 126, 168-172; Dec. Dig: State has placed a voting machine may de88 94, 120.*]

termine for itself whether it will retain the (Syllabus by the Court.)

same or not. It applies to every district in Mandamus by Hugh H. Mara and by 16 the state which is similarly situated; that others against the Mayor and Board of Coun- is, to every district in which a voting macilmen of the City of Bayonne. Peremptory to produce diversity its tendency would be

chine has been placed. So far from tending writs granted.

Argued November term, 1908, before GUM- to produce uniformity by bringing the methMERE, C. J., and SWAYZE and TRENCH- od of voting in districts where a voting ma

chine had been placed into harmony with ARD, JJ.

the method of voting in other districts. Daniel J. Murray and Thomas F. Noonan,

The return fails to present any reason for relators. Elmer W. Demarest, for de why a mandamus should not issue. Let a fendants.

peremptory writ be issued in this case, and

in the 16 other cases that are in the same SWAYZE, J. In this case an alternative situation. writ of mandamus issued to compel the defendants to order a special election to determine upon the retention or rejection of vot

(77 N. J. L. 389) ing machines pursuant to the act of April BLANCHARD V. NEWARK JOINT DIS

TRICT COUNCIL OF UNITED BROTH10, 1908 (P. L. p. 266). The defendants, by

ERHOOD OF CARPENTERS & JOINERS their return, seek to justify their refusal to

OF AMERICA et al. order the special election upon the ground that the statute is illegal, void, and in vio- | (Supreme Court of New Jersey. Feb, 23, 1909.) lation of the Constitution for two reasons: TRADE UNIONS ($ 4*)-RIGHTS AND LIABILI(1) Because the title of the act does not ex

TIES OF MEMBERS-INTER SE. press its purpose and object; (2) because the from which he was suspended and a fine im

Plaintiff was a member of a trade union, act is of a private, special, and local char- | posed of $100 by a local council of the organizaacter, and purports to apply only to elec- tion. He refused to pay the fine, and the defendants, members of the local council, therefore might discharge him without cause. upon induced his employers to discharge him, This does not meet the point, which is that to recover damages for which plaintiff brought suit against them. During the pendency of this plaintiff was deprived of employment because suit plaintiff appealed from the order suspending of unlawful threats made to Hedden & Sons, and fining him to the national association of which influenced them to discharge him, and the order, by which tribunal the order was re- that this would not have happened except for voked and plaintiff restored to his membership. Held, that the taking of the appeal from the defendants' conduct. order did not amount to a waiver by the plain- Second. That defendants did not request tiff of his right to damages resulting from the the discharge of plaintiff. On this point it is illegal acts of the defendants in procuring his sufficient to say that what they did amounted discharge from employment.

[Ed. Note.-For other cases, see Trade Un- to such a request, and was accompanied with ions, Cent. Dig. $ 3; Dec. Dig. $ 4.*]

a threat if not complied with. (Syllabus by the Court.)

Third. That the court was without juris

diction to retain the case when motion for Appeal from District Court of Newark. Action by Elmer E. Blanchard against the taken an appeal from the order of suspension

nonsuit was made, because the plaintiff had Newark Joint District Council of the United and the imposition of the fine, from which it Brotherhood of Carpenters and Joiners of is argued he had submitted to the jurisdicAmerica and others. Judgment for plaintiff, tion of the order. Taking an appeal from and defendants appeal. Affirmed. Argued November term, 1908, before REED, association does not amount to a waiver of

an order relating to the discipline of such an BERGEN, and MINTURN, JJ.

damages resulting from the illegal act of the Beecher & Baylor, for appellants. Newton defendants in procuring the discharge of the P. Kinsey, for appellee.

plaintiff in order to enforce the act appealed

from. BERGEN, J. The plaintiff was a member Fourth. That there was error in admitting of the Newark District Council of the United in evidence a printed copy of the trade rules Brotherhood of Carpenters and Joiners of of the order. The secretary of the associaAmerica. While working for V. J. Hedden & tion had been subpoenaed to produce the min. Sous, he was discharged, because, as alleged, utes showing the by-laws of the association. the defendants threatened to prevent all mem- This he did not do, but produced a printed bers of the order from workiòg for his em- book which he said was a copy of the by-laws ployers unless he was dismissed. This suit printed by the defendants for the use of its was brought for damages arising from such members. Whether competent or not its addischarge, and resulted in a verdict for plain- mission did not harm defendants, because the tiff, to review which this appeal was taken. illegality of the proceedings suspending and

The case shows that plaintiff was suspend- imposing the fine which the by-laws were of. ed as a member of the order, and fined $100 fered to prove had been decided in plaintiff's by the district council, which plaintiff refused favor by a proper tribunal, and the plaintiff to pay, claiming that the fine was not impos- reinstated in the order and the fine returned ed according to the laws of the order, where to him. upon the defendants notified V. J. Hedden & Fifth. That the nonsuit should have been Sons tbat, unless they discharged plaintiff, granted because of failure to offer in evidence all the members of the order would refuse to the constitution of the national organization. work for the firm, and to avoid the loss of This was not relevant to the issue being tried. such labor, and for no other reason Hedden Sixth. That two letters were improperly & Sons, discharged the plaintiff. Subsequent admitted. One of these letters was written ly plaintiff paid the fine and appealed to a by the president of the national association, superior tribunal in the order, and was allow- and the other by the general secretary of the ed to resume work. On his appeal plaintiff association, each containing a notice to the was sustained, reinstated in the order, and district council of the disposition made of the district council required to refund the fine plaintiff's appeal. They were produced by illegally exacted. The case discloses that the defendants on notice, and were competent. plaintiff was illegally required to pay $100, The remaining points relate to admission and upon refusal deprived of employment by of testimony, which we do not find to be errothe acts of the defendants. This creates a right of action under Brennan v. Hatters, The judgment below is affirmed. 73 N. J. Law, 729, 65 Atl. 105, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727. The appellants, the defendants below, urg-ATLANTIC CITY & S. R. CO. v. VENTNOR

(77 N. J. L. 354) ed several points in support of their appeal.

CITY. First. That the conduct of the defendants in inducing the discharge of the plaintiff by (Supreine Court of New Jersey. Feb. 23, 1909.) Hedden & Sons was within their legal rights. LICENSES ($ 32*)—WHEN PAYABLE-MUNICI.

PAL ORDINANCE. The argument on this point is that Hedden &

Under a municipal ordinance approved on Sons had no contract with plaintiff, and there. I June 8, 1908, requiring payment of certain li.


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