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property. His testimony in this regard is

(77 N. J. L. 19) entitled to respect. Vice Ordinary Reed, HILL, to Use of FERRIS, V. ADAMS EX speaking for the Prerogative Court in the

PRESS 00. Spark's Case, 63 N. J. Ed. 242, at page 249, (Supreme Court of New Jersey. Dec. 22, 51 Atl. 118, at page 121, says: "The absence

1908.) of any influence, which can be regarded as 1. CERTIORARI. (8 54*)—RETURN. undue, must in the main, of necessity, be the proceedings and testimony, certified by the

A transcript of the stenographic report of proved by the legatee himself.' "The testi- judge of the district court under chapter 138, mony of the legatee, unless contradicted by P. 259, of the Laws of 1905, although not transsome other credible testimony, or discredited mitted to the clerk of the Supreme Court withby its improbability, cannot be arbitrarily tiorari, may be treated as part of the return

in 15 days by the party suing out a writ of cerdisregarded.' The evidence clearly shows to such writ when the defendant in certiorari that the case now before me is within the es- has made no objection to such state of the case tablished rule laid down in Bennett v. Ben- under the thirty-second rule of this court, and

no preliminary motion to strike out such part of nett, above cited, that every person compe- the return has been made. tent to make a will has a right to the aid (Ed. Note.-For other cases, see Certiorari, of any person he may think proper to select, Dec. Dig. 8 54.*] when he desires to put his testamentary | 2. CARRIERS (8 113*)-CARRIAGE OF GOODS wishes in form to have legal efficacy; and,

EXPRESS COMPANIES-LIABILITY. if he exercises this right without improper Company to Ireland was called for at the resi

A box to be shipped by Adams Express influence or control, though he selects the dence of the shipper by a driver of a local transperson he intends to make his principal bene- fer company and delivered by him to the express 'ficiary, that fact, in the absence of evidence company with a prepayment of the charges,

nothing being asked or said as to valuation. showing an abuse of confidence, constitutes The receipt that was handed to the driver of the no reason why probate should be denied to his transfer company by the express company, was will.' The proofs produced before me stand delivered by him to the shipper two days later, uncontradicted by any evidence produced by of the express company, had already been de

at which time the box, while in the possession the contestants. It has been shown to my stroyed by fire. In an action brought by the satisfaction that Axtell did not abuse the shipper against the express company for the confidence of testatrix. The contention that value of the box:

Held, that a motion to nonsuit was properly he should, under the circumstances, have re- denied, and that a request that the plaintiff's fused to accept her bounty is a question of recovery be limited to $50, pursuant to a pro ethics with which this court is not con

vision in the express receipt, was properly re

fused. cerned.

(Ed. Note.-For other cases, see Carriers, "I am fully convinced that the will and Dec. Dig. $ 113.*] codicil in question are untainted by fraud or 3. CARRIERS ($ 180*) LIMITATION OF LIABILundue influence. They represent the testa- ITY-EXPRESS COMPANIES-AGENT OF SHIPmentary wishes of a woman of good mental capacity, acting free from all moral and rier (in this case the Union Transfer Company)

Where a shipper employs a common car physical coercion, and have been drawn to carry goods to an express office in this case strictly in accordance with her directions. Adams Express Company) for shipment, the Her wishes must control this court. An or- driver of the wagon of the local carrier who de der will be made admitting them to probate a servant or agent of the shipper with whom

livers the goods to the express company is not as the last will and testament of Esther J. the express company may make a special conCooper."

tract binding the shipper, in the event of loss,

to a limitation of such carrier's common-law liaVreeland, King, Wilson & Lindabury, for bility. appellants Harrison, Huff, and Guerin. John (Ed. Note.-For other cases, see Carriers, M. Mills, for appellants Pruden, Briant, Man. Cent. Dig. $ 815; Dec. Dig. $ 180.*] dridge, Groendyke, Simonson, and Mullen. 4. EVIDENCE (§ 244*) - DECLARATIONS - DEC

LARATIONS BY AGENT. Willard W. Cutler, for respondent executors.

Where the adjustment of a claim of loss Charlton A. Reed, guardian ad litem, pro se. against an express company was referred by its

main office in New York to the general manager

of its Philadelphia office, who took the matter PITNEY, Ordinary. Counsel for the ap- up with a representative of the plaintiff, the relpellants do not controvert the principles of evant declarations made by such general manlaw adopted by the court below as applicable ager in the course of such negotiations and ger

mane to the matter in hand are admissible in to the case. The contention is that the learn evidence against the express company, in an aced judge erred in his conclusions of fact. tion between the same parties growing out of My examination of the case convinces me

the same transaction. that those conclusions are fully supported

[Ed. Note.-For other cases, see Evidence, by the evidence, and that the respondent Ax- Cent. Dig. 88 916-936; Dec. Dig. $ 244.*) tell fairly sustained the burden of showing

(Syllabus by the Court.) that the will was the product, not of undue Certiorari to District Court of Camden. influence, but of the free and independent Action in the district court of the city of judgment of the testatrix.

Camden by Frank Hill to the use of Mary The decree under review will be affirmed. I A. Ferris, against the Adams Express Com

PER,

pany. Judgment for plaintiff, and defendant delivered the box to the defendant at its local sued out a certiorari to review the same. office in Camden, prepaying the express Affirmed.

charge demanded, and receiving a receipt, See, also, 74 N. J. Law, 338, 68 Atl. 94. which he took to the office of the transfer

Argued June term, 1908, before GARRI. company, where he was told to deliver it to SON, SWAYZE, and PARKER, JJ.

Miss Ferris, which he did two days later, Gaskill & Gaskill, for prosecutor. Joseph at which time the box had already been de Beck Tyler, for defendant.

stroyed by a fire that occurred at the ter.

minal office of the defendant at New York GARRISON, J. This writ of certiorari or Hoboken. At no time was anything asked brings up a judgment of the district court or said by any one as to the value of the

box. of the city of Camden. A preliminary question is whether there

The mere statement of the plaintiff's case is any return to this writ upon which the makes it too clear for argument that the moprosecutor may rely in support of his rea- tion to nonsuit could not have been granted sons for reversal. The return, apart from

The next reason for reversal is the refusal the judgment record, consists of a transcript of the district court to limit the plaintiff's of the stenographic report of the proceedings recovery to the sum of $50. This reason is and testimony certified by the judge of the founded upon a clause in the express receipt district court pursuant to chapter 138, p. 259, handed by the defendant to the driver of of the Laws of 1905. This act requires that the transfer company which stated that the such certified transcript “shall be transmitted rate charged was based upon "a valuation by the party suing out the writ of certiorari of not exceeding fifty dollars unless a great. . to the clerk of the Supreme Court within er value is declared,” and that “the shipper fifteen days from the rendition of the judg- agrees that the value of said property is not ment.",

more than fifty dollars unless a greater value In the present case this was not done, and is stated herein and the company shall not counsel for the defendant in certiorari con- be liable in any event for more than the value tends that such transcript should on this ac

so stated nor for more than fifty dollars it count be rejected. Rule 32 of this court, how- no value is stated herein." ever, provides that a state of the case not

That a carrier may thus limit its common. objected to within five days after its service law liability by a special contract with the shall be deemed to be complete. We shall shipper is established in this state, with the therefore take the statutory return in this proviso that the burden of proving that the case in so far as it bears upon the legal mer- shipper actually made such a contract is its, without considering certain questions con

on the carrier. Russell y. Erie R. R. Co., 70 cerning it that would have arisen if timely N. J. Law, 809, 59 Atl. 150, 67 L. R. A. 433. objection had been interposed or a prelim- The validity of such contracts does not rest inary motion to strike out such return had upon the right of the carrier to bargain for been made.

an exemption from the results of its own We are thus brought to the merits of the negligence, but upon its right to stipulate present controversy.

with the shipper as to the value of the latThe plaintiff's action was brought in the ter's property, and to predicate upon such district court to recover damages for the loss valuation both the rate of carriage to be of a box delivered to the Union Transfer charged the shipper and the amount of the Company to be carried to the defendant's carrier's liability in the event of loss. Atkinlocal office for shipment by express to Ire- son v. N. Y. Transfer Co. (N. J. June Term, land. The case, which was tried without a 1908) 71 Atl. 278. jury, resulted in a judgment for the plaintiff This case also decided that where the shipfor $300.

per knows that the rate he is being charged The prosecutor's first reason for reversal is based upon an undervaluation of his propis that a motion to nonsuit made at the close erty his silence is tantamount to his assent of the case should have been granted. (The that such valuation shall be the amount for defendant offered no testimony.)

which the carrier shall be liable in the event Upon the review of the ruling of the trial of loss. In order to determine whether a give court upon this motion, the plaintiff's case en case comes within this rule, the crucial was that on March 25, 1904, she engaged question is: When may the shipper be said the Union Transfer Company to take a box to know that the rate that he is being charg. from her residence in Camden to the local ed is based upon an undervaluation of his office of the Adams Express Company for property? This question, being one of fact, shipment by that company to Ireland; that is from its nature incapable of being answer. a driver of one of the wagons of the transfer ed by any mere formula; each case must in a company called at the house of Miss Ferris measure rest upon its own circumstances. (the owner of the box and the substantial There is, however, in a very large proportion plaintiff), and there got the box and carried of cases a matter in limine that is of prime it to the office of the transfer company, where importance in the solution of this question, it was marked with an address given by viz., whether the delivery to the shipper of a

voucher which contains the terms of a special | ant of the carrier becomes pro hac vice the contract based upon a valuation placed on servant of the carrier's customer, and no one such property in such receipt becomes in the can recover damages for a loss occasioned by event of loss an executed contract by which the negligence of his own servant. the shipper is bound if he received such docu- But not only is the fiction in question thus ment without indicating his dissent to this out of harmony with the general law of masfeature of it. Speaking of such instruments, ter and servant, it also runs counter to more Gummere, C. J., in the case last cited, which than one of the established doctrines respectwas a Court of Errors decision, said: "It is ing that relationship such, for instance, as insisted on behalf of the plaintiff in error the independent contractor doctrine, under that Mrs. Atkinson by receiving the bill of which agency cannot be traced through an lading became bound by its provisions; that independent actor; and the fellow servant the mere acceptance of this paper without doctrine, under which the relation of master any indication of dissent from its terms and servant cannot be changed without the bound her as fully as if she had expressly consent of the servant. It is also repugnant assented to them, and that she could not to the doctrine upon which the courts of this afterward deprive the plaintiff in error of state based their repudiation of the rule laid the protection of its provisions by asserting down in Thorogood v. Bryan. Inasmuch as that she was ignorant of its contents. We Thorogood v. Bryan concerned the imputation are not required to pass upon the soundness of negligence, the grounds of its repudiation of this proposition.” The question was therefore not decided in the question of the imputation of agency; but

may seem to be lacking in application to the case from which we have quoted. The identity of principle is of more importance same court, however, in Hayes y: Adams than mere analogy, and in principle the two Express Company, 74 N. J. Law, 537, 65 Atl. classes of cases are not only similar, but the 1044, speaking through Mr. Justice (now principle involved is even more appropriate Chancellor) Pitney, had already decided that to cases of contract than to those where con"mere knowledge by a shipper that a car- duet merely is concerned. rier's rates are based upon the value of the

This will appear from a statement of the goods shipped will not lessen the liability of the carrier to answer for the value of the tion. Thorogood v. Bryan, 8 Man., Gr. &

case cited and of the grounds of its repudiagoods in the absence of the shipper's assent

Scott, 116, had held that, where the neglito such a restriction."

gence of the driver of an omnibus contributed It will be observed that the decision was not that such result might not follow the to a collision with another vehicle by which

a passenger in the omnibus was killed, the shipper's knowledge that the rate he was being charged was başed upon a valuation representative of such deceased passenger stated in a receipt that was delivered to him. could not recover from the proprietor of such

other vehicle damages for its negligent manThere is therefore no co ict between the two decisions, although neither of them pass- agement, for the reason that the driver of the ed upon the question we have propounded, he was carrying as to be in legal effect his

oinnibus was so identified with the passenger which now calls for our decision only in case the driver of the transfer company had au- servant. By force of this doctrine the neglithority from Miss Ferris to give or to with-gence of the driver of the omnibus was imputhold her assent to the valuation placed upon ed as contributory negligence to his fictional ber property in the receipt that was handed master, to wit, his passenger. to such driver when he delivered her box

This doctrine was emphatically repudiated to the express company.

in our Supreme Court in Bennett v. New If the driver had such authority from the Jersey R. R. & T. Co., 36 N. J. Law, 225, 13 shipper, it must have arisen as a fiction of Am. Rep. 435, and in the Court of Errors and law from the inere fact of her employment of Appeals in N. Y. L. E. & W. R. R. Co. v. the transfer company to deliver her box to Steinbrenner, 47 N. J. Law, 161, 54 Am. Rep. the express company, and to prepay the 126, in opinions demonstrating its inconsistcharges demanded, for she did nothing else ency with established principles of law, which to constitute the servant of the transfer com- are of equal cogency upon the question we pany her special agent. Such fiction, how- are now considering. The same result was ever, by which the servant of a common car-reached in the Supreme Court of the United rier (in this case the transfer company) is by States in Little v. Hackett, 116 U. S. 366, 6 mere operation of law transferred to the Sup. Ct. 391, 29 L. Ed. 652, in which Mr. service of whomsoever contracts with such Justice Field characterized the opinions decarrier, not only does violence to all our pre-livered by Chief Justice Beasley and Mr. conceived notions touching the relation of Justice Depue in the two New Jersey cases master and servant, but seems to lead to the as "of marked ability and learning.” The absurd result that one who thus contracts fact is that Thorogood v. Bryan has been forfeits thereby all right of recovery against quite generally discredited both in this counsuch common carrier for losses arising out try and in England, and in all the courts in of the negligence of one of its servants, for which it has been repudiated stress has been

cases.

the driver as the test to be applied in such, by one who was himself the mere driver of

teams for another common carrier. Upon principle I am unable to distinguish There is nothing, therefore, in the deci. between a passenger's lack of control over sions we have spoken of that militates against the driver of a conveyance in which he is the conclusion we have reached, which is riding and the customer's lack of control that the driver of the transfer company in over the driver of a transfer wagon in which the present case had no authority from Miss his property is being carried.

Ferris to make for her a special contract In point of law their impotence is the same, with the express company by which the liawhile in point of fact such impotence is great- bility of the latter should be limited in the er in the latter case than in the former; for event of loss. Having reached this concluthe passenger being present may and often sion, the question whether the driver had by does exert some influence over the conduct of his silence assented to the terms of the rethe driver of the conveyance, but in the ceipt that was handed to him does not call case of the transportation of goods the own- for decision. The reason under consideraer does not accompany his property, and tion, therefore, does not lead to the reversal hence has no opportunity whatever to exer- of the judgment brought up by this writ of cise the slightest control over the carrier's certiorari. servant. Obviously the rule of our cases for- The only other reason urged for reversal bids the imputation of agency in cases such is that the authority of A. J. Town as general as that now before us.

agent of the defendant in Philadelphia to I am aware that there is a line of deci- bind the defendant by his declarations was sions, whose soundness need not now be ques- not established. This was the chief defect tioned, of which Nelson v. H. R. R. R. Co., 48 upon a previous trial of this cause, as apN. Y. 498, may be taken as the type, which pears from the opinion of Mr. Justice Pitney hold that the agreement or arrangement be- in Hill v. Adams Express Company, 74 N. J. tween two persons touching the shipment of Law, 338, 68 Atl. 94. An examination of the goods may be such that the owner of the testimony given at the present trial' satisfies goods is bound by the terms of their ship- us that the deficiency of proof thus pointed ment if assented to on his behalf by the out was fully supplied by competent evidence. servant of his agent or representative. And That evidence was that W. S. Scull, acting inasmuch as this doctrine was referred to for the plaintiff in the assertion of her claim, arguendo by Judge Vroom in his opinion in went to the office of the defendant in Camthe Russell Case, it may be well to point out den, where he was referred to the general that the decision of that case was placed office of the defendant in New York City, solely upon the narrow point that the servant which he visited a number of times, until of the shipper's agent carried to the shipping finally at his request the matter was referred office a completely made out shipping order to the Philadelphia office, from which latter that definitively marked the limits of his office Mr. Scull soon after received a letter, authority, hence the question as to what bis signed “A. J. Town,” which stated on its authority would have been but for such limi- letter head that A. J. Town was the general tation was not a matter of decision in that manager of the defendant in Philadelphia, . case.

and in its body showed that the matter under Assuming, however, the correctness of the consideration in New York had been by cordecisions referred to, they are clearly dis- respondence communicated to the Philadel. tinguishable from the present case, not only phia office. Thereupon Mr. Town, in purby reason of the wide difference that exists suance to such communication, took up with between instructions, given to a personal agent Mr. Scull the adjustment of Miss Ferris' to cause goods to be shipped and the mere claim, in the course of which the former employment of a common carrier to carry made certain statements relative to the mat. goods to a shipping office, but also, and more ter in hand, to whose admission in evidence fundamentally, because of the legal distinc- the defendant objected at the trial. We think tion between acting through another person that the authority of Mr. Town to represent in the performance of an act and contracting the defendant was clearly inferable from the with such other person for the performance proofs, and that the statements ascribed to of such act. This distinction, which lies at him were germane to the matter that had the foundation of the independent contractor | been referred to him by the defendant, and doctrine, is too radical to be overlooked when hence relevant and admissible in a suit considering the underlying principle of these against it growing out of the same transaccases, which is that the relation between the tion. parties or their business custom raises a The case for the plaintiff is much stronger presumption of agency that includes the right than it was in Agricultural Insurance Co. v. to declare the value of the goods or to as-Potts, 55 N. J. Law, 158, 26 Atl. 27, 537, sent to a valuation placed on them by the 39 Am. St. Rep. -637, and in Smith v. D. & carrier, which are correlative powers, nei- A. T. & T. Co., 64 N. J. Eq. 770, 53 Atl. 818, ther of which will without proof be presum- and presents the exact antithesis of Huebner ed in a case such as the present, where the v. Erie R. R. Co., 69 N. J. Law, 327, 55 Atl.

TIFF.

Errors and Appeals. In the same court, in tion. On the coming in of the report of the King v. Atlantic City Gas & Water Co., 70 master advising a decree in favor of the peN. J. Law, 679, 58 Atl. 345, it was said by titioner, the Court of Chancery dismissed the way of illustration that “our cases show that petition. The ground of this dismissal was where one authorizes another to speak for that there was not sufficient evidence that bim he may be confronted by testimony as the petitioner had acquired a residence in to what his representative said within the this state for two years before her petition scope of his authority." That is the precise was filed; that her declaration that she insituation here. Town's authorization to dis-tended to reside in this state was not accomcuss the plaintiff's claim with Scull as her panied with the selection of any place which representative carried with it the making of she adopted as a residence animo manendi; such statements and explanations from the that she went from place to place within defendant's standpoint as were germane ei- | the state and selected no one place as a resither to the denial or the adjustment of her dence until after the two years began to run. claim; in fine, was essentially an authority The petition was filed on October 9, 1907. to speak for the defendant in the premises. The petitioner came from New York state, Hence declarations made within the scope where her husband had deserted her, to New of such authority were properly admitted in Jersey about October 1, 1904. She first went evidence in a trial against the defendant to Newark for a few weeks, then to Montgrowing out of the same subject-matter. clair until June, then to Europe until Octo

Finding in none of the reasons filed by the ber, 1905, then to Lakewood for three or four prosecutor any ground for reversal, the judg- months, then to Newark again, and afterment of the district court is affirmed.

ward to Montclair. So she moved from place to place, remaining for different periods, un

til she established a residence at Asbury (74 N. J. E. 824)

Park. The evidence convinces us. that she KING V. KING.

left New York with no intention of returning. (Court of Errors and Appeals of New Jersey. It clearly convinces us that she came to New Dec. 23, 1908.)

Jersey with the intention of making this 1. DIVORCE (8 62*)—“DOMICILE” OF PLAIN- state her home. In respect to her migrations

after coming here, she says: “I have gone A wife who had been deserted by her hus- from place to place in New Jersey for the band came from the state of New York into New Jersey in October, 1904, and filed her pe- purpose of seeing which place I would like tition for divorce here on October 9, 1907. She best before establishing a permanent home. first resided at different places here for the pur. I found it too expensive at Lakewood and at pose of finding an inexpensive place to live, and Montclair, and I found Newark and Asbury finally, but not two years before filing her petition, fixed her residence permanently at Asbury Park cheaper.” Park. Her intention when she first came into The jurisdictional fact to be established in New Jersey, and thereafter continued, was to suits for divorce brought for desertion is that make her future home in this state. Held, that her residence in this state from the beginning, one of the parties shall have been a resident coupled with her intention to remain bere, gave of this state during two years of the time for her a domicile in New Jersey within the mean- which the desertion shall have continued, and ing of the divorce act (P. L. 1902, p. 503), which that such residence shall have continued unrequires a two years' residence here during the time for which the desertion continued, and a til the filing of the bill or petition. P. L. residence continued down to the filing of the pe- 1902, p. 503. It is settled that the word tition.

“residence" employed in the statute means [Ed. Note. For other cases, see Divorce, domicile, and that to confer jurisdiction upon Cent. Dig. $ 220; Dec. Dig. 8 62.* For other definitions, see Words and Phrases,

the courts of this state it is essential that vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642.) one of the parties shall have been domiciled 2. DIVORCE (8 62*)—"RESIDENCE."

in this state for the statutory period. McThe word "residence” employed in the di. Shane v. McShane, 45 N. J. Eq. 342, 19 Atl. vorce statute means “domicile.'

465. Domicile, of course, means a residence [Ed. Note.–For other cases, see Divorce, Dec. in New Jersey, coupled with an intention Dig. $ 62.*

to remain in New Jersey. It is undenied For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788.) that, with the exception of a three months (Syllabus by the Court.)

absence in Europe, the petitioner was physic

ally present in this state for about three Appeal from Court of Chancery.

years before filing her petition. As already Action by Florence Maude King against observed, the testimony leaves no doubt in Charles Sanford King for divorce. Judgment our minds that she lived here with the intenfor defendant, and plaintiff appeals. Re- tion of making her home in this state. versed.

The view which led to the dismissal of the Franklin W. Fort, for appellant.

petition was obviously this: That while the

petitioner was a resident here, and intended REED, J. This is an ex parte proceeding to remain within the state, she nevertheless to secure a divorce on the ground of deser-I had no fixed intention of permanently re

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