(93 N. J. Eq. 262) (116 A.) ROBBINS v. LANNING. (No. 51/297.) (Court of Chancery of New Jersey. March 28, 1922.) (Syllabus by the Court.) Statutes 118(6)-Act providing that marriage contracted under certain circumstances is a misdemeanor held unconstitutional as to subject and title. So much of the act entitled "An act to amend an act entitled 'An act for the punishment of crimes' (Revision of 1898), approved June fourteenth, one thousand eight hundred and ninety-eight," passed March 1, 1921 (P. L. p. 43), as provides that every marriage contracted in the circumstances made a misdemeanor by the act, is void because violative of article 4, § 7, par. 4, of the Constitution, which provides that every law shall embrace but one object, and that shall be expressed in the title. Action by Elizabeth Robbins, otherwise Elizabeth Lanning, against Lewis Lanning. On application for assignment of a solicitor to prosecute a suit for nullity of a marriage in forma pauperis. Application denied. WALKER, Ch. The petitioner applies for appointment of a solicitor to prosecute for her a suit for nullity of marriage in forma pauperis. The matter was referred to a special master, who reports that on September 8, 1921, petitioner was married to the defendant; that she is 17 years of age, and that the defendant is 23 years old. It appears from the testimony before the master that on the day named defendant took the petitioner from her home in Trenton to Red Bank, without the knowledge or consent of her mother or father, and being informed that her mother had said she was disgraced, the parties were married, and that the marriage has never been consummated. Horter, 91 N. J. Eq. 189, 110 Atl. 31; Dooley v. Dooley, [N. J. Ch.] 115 Atl. 268); at least no such showing is made on her application for the assignment of counsel. Reliance, however, is made upon the provisions of the act of March 1, 1921 (P. L. p. 43), entitled, "An act to amend an act entitled 'An act for the punishment of crimes' (Revision of 1898), approved June fourteenth, one thousand eight hundred and ninety-eight," which provides inter alia that any person who shall convey or take away any unmarried woman child under the age of 18 years from the possession, custody, or governance and against the will of the father, mother, or guardian of such child, though with her own consent, with intent to contract matrimony with her, etc., shall be guilty of a misdemeanor, and if he contract matrimony with her without such consent he shall be guilty of a misdemeanor, and every such marriage shall be void. Assuming that leave to sue in chancery in forma pauperis extends to any and all cases, and is not restricted to those arising under the Divorce Act of 1907, supra, still the applicant in this case is not entitled to that leave, because the provision in the act of 1921 making the marriage between the parties to these proceedings void is itself void because unconstitutional because it offends against article 4, § 7, par. 4, of the Constitution of New Jersey, which provides, inter alia: "To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." In Hawkins v. American Copper Extraction Co., 69 N. J. Law, 126, 54 Atl. 523, section 17 of "An act to provide a uniform procedure for the enforcement of all laws relating to fish, game and birds, and for the recovery of penalties for violations thereof" (Act March 29, 1897 [P. L. 109]), was under review as to its constitutionality, and Mr. Justice Dixon, N. J. Law at page 127, 54 Atl. 523) that it was inoperative because its object was not expressed in the title of the act, which related wholly to procedure, and gave no intimation of a purpose to impose or increase penalties. The act providing for divorces and decrees of nullity of marriage, etc. (P. L. 1907, p. 474). provides in section 29 that wherever any poor person shall have cause of suit un-speaking for the Supreme Court, observed (69 der that act, not being worth $100 clear estate, the chancellor may at his discretion assign a solicitor and counselor to prosecute said cause without fee or reward. The act concerning marriage (Comp. Stat. p. 3217, § 7) provides that a license to marry shall not issue if a male applicant is a minor under 21 or the female under 18 years of age, unless the parents or guardians of the minor shall certify under their hands their consent thereto, but this section does not make void any marriage performed in violation of its provisions. The petitioner has no cause for nullity under our divorce act, supra, nor, so far as I can see, under the general jurisdiction of the court for fraud affecting an essential of the marriage relation (Bolmer v. Edsall, 90 N. J. Eq. 299, 106 Atl. 646; Ysern v. In Hayes v. Storms, 64 N. J. Law, 514, 45 Atl, 809, the Supreme Court had before it the question of the constitutionality of the third section of an act (Act March 12, 1879 [P. L. p. 115]) entitled "An act to increase the jurisdiction of justices of the peace," which made it a penal offense for any justice to issue a summons on behalf of any person for whom he was agent, and Mr. Justice Garrison, speaking for the court, said (64 N. J. Law at page 516, 45 Atl. 809) that this séction was not an increase in the jurisdiction of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the justice, and did not concern jurisdiction; and this, which Blackstone calls the sanction that it prescribed a decent rule of conduct, of the law, seems necessarily included in the and that object was not expressed in the ti- title, which expressed the object to be to regtle; and that no section of an act has any ulate certain corporations." effect beyond the object expressed in its title. Now the title of the act under consideration, namely, one for the punishment of crimes, to my mind gives no hint or token of an intention to make a marriage void, and, in my judgment, that provision of the act is a nullity because it violates the constitutional provision above quoted. In Griffith v. Trenton, 76 N. J. Law, 23, 69 Atl. 29, the Supreme Court held that in whatever sense the title of an act would naturally and generally be taken is ordinarily the meaning that should in a constitutional sense be held to be expressed in it. Surely one would not naturally think that an act for the punishment of crimes would deal with the substance of the marriage relation. On the contrary, one would expect to find such legislation under the title of "Marriage" or "Divorce and Nullity." Rendering void a marriage otherwise valid cannot, I think, be held to be a punishment for a crime-not even the crime of contracting the particular marriage-because the innocent party to it-that is, the party without criminal intent-might not desire to have it annulled. Now this marriage in and of itself appears to be valid, even though the girl at the time of contracting it was under the age of consent to marriage without the consent of parents or guardian, which is 18 years, she being actually 17 years of age, while she was not at an age which permits her to repudiate the marriage and have it declared null when coming to the age of such consent, namely, 16 years. It is true that this young woman desires to have this marriage annulled, but she does not count upon any cause for annulment under our law except this statute of 1921, whose provision in that regard, as stated, is inoperative and void because constitutionally defective. The application for assignment of a solicitor will be denied. In Reese v. Stires, 87 N. J. Eq. 32, 103 Atl. 679, I held that the act of March 3, 1915 (P. L. p. 61), which in terms abolished estates and interests of dower and curtesy, violated the provision of the Constitution hereinabove quoted, and was null and void to that extent, as the single object expressed in the title concerned only the descent of real estates, and dower and curtesy do not descend, and in effect expressed the view that legislation with reference to dower and curtesy (Court of Errors and Appeals of New Jersey. could only be affected by acts having an appropriate title-that is, ones mentioning those subjects as objects of the legislation. In Jordan v. Moore, 82 N. J. Law, 552, 82 Atl. 850, the Court of Errors and Appeals held that, under article 4, § 7, par. 4, of the Constitution, the title of an act of the Legislature constitutes a limitation upon the enacting clauses, and that any construction of the latter that would give them a scope beyond the object expressed in the title is to be rejected. The views above expressed are not in conflict with the decision of the Court of Errors and Appeals in State v. Twining, 73 N. J. Law, 683, 64 Atl. 1073, 1135, wherein it was held that the title of an act concerning trust companies included in its expressed object not only regulation, but also provision to enforce regulation by penalties and prosecution. Chancellor Magie, who wrote the opinion of the court, at page 689 of 73 N. J. Law, page 1075 of 64 Atl. said: (97 N. J. Law, 231) LEWINE v. BALTAR. March 6, 1922.) Appeal and error 1050 (1) - Admission of Walker, Ch., and Williams, J., dissenting. Appeal from Supreme Court. Action by Blume Lewine against Max Baltar. Judgment for plaintiff, and defendant appeals. Affirmed. "The title indicates the legislative purpose to be directed to such trust companies. Such legislative purpose necessarily includes regulation of such companies, including the regulation of those who direct or act for them, and the enforcement of such regulations. That enforcement is usually provided by enactments for penalties for the breach of the regulations, spondent. Theodore W. Schimpf, of Atlantic City, for appellant. C. L. Cole, Jr., of Atlantic City, for re (116 A.) (97 N. J. Law, 271) RAMSEY v. ATLANTIC CITY R. CO. BERGEN, J. The plaintiff recovered a judgment in ejectment against the defendant, who appeals. The plaintiff was the owner of the land in controversy, as appears (Court of Errors and Appeals of New Jersey. March 6, 1922.) (Syllabus by the Court.) of risk defense under federal safety appliance statute. Under the federal Employers' Liability Act of Congress of April 22, 1908 (U. S. Comp. St. 8657-8659), in an action by the employee against a common carrier, the assumption of risk by the employee is open as a defense, except where the negligence of the carrier is in violation of some statute enacted for the safety of employees. 2. Master and servant 228 (1)-Contributory negligence no bar under federal act. There is a distinction between contributory negligence and assumption of risk. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee. It is not a bar to a recovery of damages in an action under the federal Employers' Liability Act of Congress (U. S. Comp. St. §§ S657-8659). Appeal from Supreme Court. by the deed to her from her vendor in possession, and if no other matter intervened plaintiff would have been entitled to a directed verdict. But the plaintiff offered in evi-1. Master and servant 204 (2)-Assumption dence a written lease for the premises made by her husband to the defendant, containing covenants which if broken entitled the lessor to re-enter. There was evidence of cove-§§ nants broken, and that question was submitted to the jury and found for the plaintiff. The trial errors argued by the defendant can all be disposed of in dealing with his objection to the admission in evidence of the lease. It was proven that in making the lease, although the lessor named was the husband of the plaintiff, he was acting for her, and the contract was made for her benefit. The defendant cites a number of cases to the effect that where an agent makes a lease in his own name his principal cannot sue to enforce it, but all were decided before the statute 1903 (C. S. p. 4059, § 28) and the rule is otherwise in this state (Holt v. United Security Life Insurance Co., 76 N. J. Law, 585, 72 Atl. 301, 21 L. R. A. [N. S.] 691). The defendant was not injured by the admission in evidence of the lease as a contract made for the benefit of the plaintiff, for it conferred on defendant a right to possession unless he should forfeit it by violating his covenants on which his right to possession rested. The only possible defense defendant had was his right to possession under the lease which plaintiff introduced in evidence, and if it had been rejected by the court, on the motion of the defendant, upon the ground that it was not a lease executed by plaintiff, then defendant had no right to hold possession against plaintiff's deed. If plaintiff had rested on her deed from one in possession, what could have been defendant's defense under this record other than his right to possession under the lease he now complains was illegally admitted, and to make it available he would have to prove that it was a contract made for plaintiff's benefit, otherwise it was not her contract, and granted to defendant no right to possession. Action by Florence Ramsey, administratrix, etc., for damages for the death of plaintiff's intestate, a brakeman, against the Atfor the plaintiff, and the defendant appeals. lantic City Railroad Company. Judgment Reversed, and venire de novo awarded. French & Richards and Floyd H. Bradley, all of Camden, for appellant. D. T. Stackhouse, of Camden, and David O. Watkins, of Woodbury, for respondent. BLACK, J. The action in this case was instituted to recover damages for the death of plaintiff's intestate, a brakeman. The action was brought by the plaintiff under the provisions of the federal Employers' Liabili8657-8659). The fatal injuries received by ty Act of April 22, 1908 (U. S. Comp. St. §§ the plaintiff's intestate occurred October 30, 1917, while in the employment of the defendant company. It is admitted the federal Employers' Liability Act governs the rights and liabilities of the parties to the action. The trial resulted in a judgment for the The appellant alleges trial errors. plaintiff based upon the verdict of a jury. The view which we take of the record requires us, however, to discuss and consider only two: For affirmance: The CHIEF JUSTICE, First, error by the trial court in refusing to Justices SWAYZE, TRENCHARD, PAR- nonsuit the plaintiff; second, error in refusKER, BERGEN, MINTURN, KALISCH, ing to direct a verdict for the defendant. BLACK, KATZENBACH, and Judges A concise statement of the facts, as disWHITE, HEPPENHEIMER, GARDNER, closed by the record, will clarify the situaACKERSON, and VAN BUSKIRK. tion and clearly indicate the legal principles No legal error appearing in this record, the judgment will be affirmed, with costs. For reversal: The CHANCELLOR and which should be applied to the facts. Judge WILLIAMS. The plaintiff's intestate was a brakeman For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on one of the defendant's freight trains. He intertrack fences were erected to prevent achad been in the defendant's employment cident to passengers getting off of trains and about eight years; six years preceding his passing over the tracks in the path of trains death he worked on the same run. During coming from the opposite direction. The the years 1914 and 1915 the train on which distance, as stated, between the two outer he worked had stopped regularly at Lawn- rails of the tracks was seven feet, five inchside, the station where it is alleged he re-es. The plaintiff's intestate knew of the ceived the fatal injuries by coming in con-existence of the fence. No lights were plactact with the intertrack iron fence. This ed on the fence at night. There was no evifence was located midway between the main dence of a custom of the defendant company north and south bound tracks. It was two to light any of the intertrack fences on its and a half inches wide and four feet three right of way at stations. inches high. The distance between the two outer rails of the tracks was seven feet and five inches. We think it is clearly demonstrated the death of the plaintiff's intestate, as provided by the statute, did not result in whole or in part from the negligence of the defendant company, its officers, agents or employees, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, roadbed, works, or other equipment. The statute further provides the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. [1, 2] Contributory negligence involves the notion of some fault or breach of duty on the part of the employee. Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Cetola v. Lehigh Valley R. Co., 89 N. J. Law, 691, 99 Atl. 310. We fail to see wherein there is any evidence to show that the plaintiff's intestate was guilty of any fault or breach of duty-in short, guilty of contributory negligence. On the night of the accident the freight train upon which the plaintiff's intestate was employed was making its regular trip from Winslow Junction to Camden, N. J. The train left Winslow Junction at 8.20 p. m. after the car journals had been regularly inspected and a report made to the conductor. The night was unusually dark and cloudy, following a day of rain. About 30 minutes after the train left Winslow Junction the conductor and the plaintiff's intestate discovered a hot box on the left wheel of the freight car next to the caboose. After watching the hot box from the left-hand side of the back platform of the caboose, the conductor went inside, Shortly thereafter the plaintiff's intestate passsed through the caboose to the front. At this time the train was passing Magnolia, a station about one mile from Lawnside. The plaintiff's intestate was not ordered by the conductor to watch the hot box from the end of the caboose. The rules of the defendant company do not require him to take such a position. No one saw the accident. No one knows how it happened. No one knows what he was doing at the time. When the train reached Camden, the plaintiff's intestate was found lifeless on the front left-hand steps of the caboose. His feet were resting on the bottom steps, his body on the next step above, his right arm around the grabiron, with his head resting on this arm, his left arm hanging down. His head and body were in such a position that one there sitting could see the hot box; but no part of his body or head extended beyond the line of the car. The injury was to the left side of the head. The following morning blood stains were found on the southerly end of the intertrack fence at Lawnside. The fence began with an iron post of a width of two and one-half inches and a height of four feet three inches. A cap and lantern were found alongside this fence similar to the one used by the plaintiff's intestate. The intertrack fence was similar in structure to the ones erected at all the other stations of the defendant company between Camden and Winslow Junc-ed by the common knowledge which all postion, although some stations had no fences. sess, and both the conditions and the dangers The fence was constructed in 1904. It had are obvious to the common understanding, and The statute also provides that the employee does not assume the risk where the negligence of the common carrier is in violation of any statute enacted for the safety of employees, which contributed to the injury. Jacobs v. Southern Ry. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970. Suffice it to say that is not this case. But in other cases the rulings of the United States Supreme Court, the ultimate authority on the construction of this statute, are uniform to the effect that the assumption of risk by the employee is a defense open to the defendant in this class of actions brought under the federal statute. It,is demonstrated to our satisfaction the plaintiff's intestate assumed the risk of the hurt or injury which caused his death. What the United States Supreme Court said, speaking through Mr. Justice Moody, in the case of Butler v. Frazee, 211 U. S. 467, 29 Sup. Ct. 136, 53 L. Ed. 281, is pertinent. Where the conditions are constant and of long standing, as in the case under discussion, and the danger is one that is suggest (116 A.) adequate experience, all these elements of est crossing, over 300 feet away and adjoining the problem appearing without contradiction a station, to notify the flagman. The friend from the plaintiff's own evidence, the ques- did so, and asked for the loan of the flagman's tion becomes one of law for the decision of red lantern, which was denied, and then asked the court. Upon such a state of the evidence ing to plaintiff's evidence, he refused to do, that the flagman signal the train, which, accorda verdict for the plaintiff cannot be sus- and directed the friend to apply at the station. tained. It is then the duty of the judge pre- He went there, and found it apparently closed. siding at the trial to instruct the jury ac- Presently a train came and demolished the aucordingly. tomobile. In a suit to recover its value, held, the company owed no duty except to abstain from acts willfully injurious, that there was no evidence to go to the jury on this point, and a verdict was properly directed. To the same effect are Cetola v. Lehigh Valley R. Co., 89 N. J. Law, 691, 99 Atl. 310; Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Id., 239 U. S. 595, 36 Sup. Ct. 180, 60 L. Ed. 458. We think the plaintiff's intestate assumed the risk of the injury. This defense was open to the defendant company. The facts were not in controversy. It was therefore error for the trial court to refuse to nonsuit the plaintiff or to direct a verdict in favor of the defendant, as there was no question of negligence to be submitted to the jury, either of the defendant or the plaintiff's intestate. The principle we have applied to the facts of this case and the conclusion reached find illustration and support in the following cases, among many others in the reports. Raub v. Lehigh Valley R. Co., 87 N. J. Law, 603, 94 Atl. 567, L. R. A. 1915F, 838; Nagle v. Hines, 95 N. J. Law, 240, 112 Atl. 195; Chicago, etc., Ry. Co. v. Bower, 241 U. S. 475, 36 Sup. Ct. 624, 60 L. Ed. 1107; Southern Ry. Co. v. Gray, 241 U. S. 333, 36 Sup. Ct. 558, 60 L. Ed. 1030; Southern Pacific Co. v. Berkshire, 254 U. S. p. 415, 41 Sup. Ct. 162, 65 L. Ed. 335. The judgment will be reversed, and a venire de novo will be awarded. For affirmance: None. For reversal: The CHANCELLOR, the CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKER SON, and VAN BUSKIRK. (97 N. J. Law, 40) PENNINGTON v. DIRECTOR GENERAL (Supreme Court of New Jersey. April 13, (Syllabus by the Court.) Railroads 359(1) Injury to automobile stalled on track held not willful. Plaintiff accidentally ran his automobile on a dark foggy night, on the railroad track of the defendant, where no crossing existed, and being unable to extricate it, and fearing the approach of a train, sent a friend to the near Action by Thomas Pennington against the Director General of Railroads. The trial judge directed a verdict for the defendant, and later allowed plaintiff's rule to show cause. Rule discharged. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. William C. French, of Camden, for plain tiff. French & Richards, of Camden, for defendant. PARKER, J. The plaintiff, driving his automobile on a dark night in a westerly direction on a street called Grant avenue, in West Collingswood, drove it unintentionally on the defendant's right of way at a place where there was no crossing, and was unable to extricate it, so that a few minutes afterward it was struck and practically destroyed by one of the defendant's trains. brought this action to recover the value of the automobile, and the trial judge directed a verdict for the defendant, but later allowed this present rule. The three reasons in support of the rule all in effect challenge the propriety of the direction, which is the sole point involved. He At the trial it was conceded that the company, under the circumstances, owed the plaintiff no duty except to abstain from willful and wanton injury; and this is manifestly correct. Grant avenue did not cross the railroad, but connected at its westerly end with a street or highway bordering the railroad right of way. Plaintiff knew this, and expected to turn parallel with the railroad into this other street, but miscalculated in the fog and the darkness, and his car ran partly down a slight embankment, the front wheels stopping about at the nearest rail and the hind wheels on the slope. His engine stalled, and the car was apparently helpless. In this situation plaintiff was a trespasser on the right of way, whether intentionally or not does not matter; and hence the defendant owed him no duty of care, in the legal sense of the word. Furey v. New York Cent. & H. R. R. Co., 67 N. J. Law, 270, 51 Atl. 505; Dieckman, Adm'x, v. 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