(94 N. J. Law, 532)

(110 A.)

the date of the payment, the letter of FebruSLINGERLAND v. PRUDENTIAL INS. CO. ary 8th of the plaintiff had not reached the OF AMERICA. (No. 53.)

department of the defendant, which made the

(Court of Errors and Appeals of New Jersey. payment, but this is an immaterial circum

June 14, 1920.)

(Syllabus by the Court.)

Insurance ~583 (2)—Payment to decedent's daughter under terms of policy held bar to suit by executor.

* * *

purpose,

An industrial policy of life insurance contained this clause: "This policy issued and accepted subject to the following conditions and agreements: Second. The company may pay the sum of money issued hereby, to any relative by blood, or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for his or her burial, or for any other and the production by the company of a receipt signed by any or either of said persons, or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such sum has been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied." Held, that a payment to the daughter of the deceased, after demand by the executor of the deceased, and before suit, upon the production of the policy and proof in accordance with the above clause, is a complete bar to the company from further liability under the policy, at the suit of the executor of the deceased.

Appeal from Circuit Court, Essex County. |

Action by Archibald F. Slingerland, executor, against the Prudential Insurance Company of America. Judgment for defendant, and plaintiff appeals. Affirmed.

Smith & Slingerland, of Newark, for appellant.

Alfred Hurrell and James Guest, both of Newark, for respondent.

BLACK, J. This suit was brought upon an industrial policy of life insurance, dated January 17, 1887, issued by the defendant to Jonathan Sloan, plaintiff's decedent, insuring his life in the sum of $500. On February 7, 1919, Jonathan Sloan died leaving a will in which he appointed the plaintiff exécutor.

On February 8, 1919, the plaintiff notified the defendant in writing of the death of the insured and of the plaintiff's appointment as executor. He demanded payment of the amount due under the policy. This notice was received by the defendant at its home office in Newark, on February 10, 1919.

On February 13, 1919, the defendant paid the amount due under the policy to Martha M. Murphy, a daughter of the decedent, upon submission by her of duly verified proofs and upon delivery by her to the defendant of the policy, which was in her possession. At

stance. The defendant relies upon the provision of the policy, hereinafter set forth, commonly known or called the "Facility of Payment Clause," as a defense, from liability, to the plaintiff.

On February 20, 1919, the will of Jonathan Sloan was admitted to probate. The plaintiff duly qualified as executor. He commenced the suit on July 17, 1919. The provision of the policy relied upon by the defendant as a defense to the action is as follows:

"This policy issued and accepted subject to conditions and the following agreements:

* * * Second. The company may pay the sum of money issued hereby, to any relative by blood, or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for his or her burial, or for any other purpose, and the production by the company of a receipt signed by any or either of said persons, or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such sum has been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied."

The case was submitted to the court below upon an agreed state of facts. The court found in favor of the defendant. Judgment was entered thereon, reserving an ex

ception to the plaintiff. The ruling of the trial court in favor of the defendant is the only point involved on this appeal, which, in

turn, involves the construction of the above clause in the policy of insurance commonly called the "Facility of Payment Clause." The point is not a new one or one of first impression in the courts of New Jersey. The clause under discussion is so clear in its terms, its purpose so obvious and manifest, there is no room for construction. The company has the power. The contract between it and the assured expressly gives it the right to exercise its discretion. When it has done so, in accordance therewith, it is protected by the terms of the policy. As our Supreme Court said, the purpose and object of this kind of insurance seem to require the payment to be made in that way, and it should in good policy be upheld.

We think the ruling of the trial court is supported by authority of the New Jersey courts. Metropolitan Life Ins. Co. v. Schaffer, 50 N. J. Law, 72, 11 Atl. 154; Brooks v. Metropolitan Life Ins. Co., 70 N. J. Law, 36, 56 Atl. 168; Prudential Ins. Co. v. Godfrey, 75 N. J. Eq. 484, 72 Atl. 456. This accords with the rulings in other jurisdictions, where, in some of the cases, this identical clause was under discussion. Prudential Ins. Co. v.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Additional Syllabus by Editorial Staff.)

Brock, 48 App. D. C. 4, L. R. A. 1918E, 489;
American Security, etc., Co. v. Prudential 2. Witnesses 268(1), 269(1)-Plaintiff not

Ins. Co., 16 App. D. C. 318; Thompson v. Prudential Ins. Co., 119 App. Div. 666, 104 N. Y. Supp. 257; Thomas v. Prudential Ins. Co., 158 Ind. 463, 63 N. E. 795; Brennan v. Prudential Ins. Co., 170 Pa. 488, 22 Atl. 1042. For a collection of other cases, see note in 20 L. R. A. (N. S.) 928; L. R. A. 1916F, 461. But it is argued by the appellant-the validity of the contract of insurance being admitted-the precise point raised in this case was not disposed of in any of the cited cases, viz., the discretion conferred upon the insurer under the above clause must be exercised, before payment is demanded, by the representative of the deceased. The demand was made February 8, 1919. The payment was made February 13, 1919. But the executor's right to thus limit the power of selection by the insurer is not in the contract. The complete answer to the appellant's point is the contract of insurance between the parties does not so provide. The court cannot make a contract for the parties by judicial construction. An election by the insurer and a payment to any one of the class or classes of persons designated in the above article showing themselves to be equitably entitled to receive the money, before suit is brought, is a complete discharge of the defendant from further liability under the policy. This accords with the ruling in the case of American Security, etc., Co. v. Prudential Ins. Co., 16 App. D. C. 318. To the same effect is Thomas v. Prudential Ins. Co., 158 Ind. 463, 63 N. E. 795.

We are not called upon to decide what effect a payment might have after the suit had been commenced.

The judgment of the Essex county circuit court will be affirmed, with costs.

(94 N. J. Law, 474)

QUELLMALZ v. ATLANTIC COAST ELEC.
TRIC RY. CO. (No. 72.)

to cross-examine defendant's witness as though his expert, nor as to matters not covered by examination in chief.

In an action against electric railway for death of passenger, plaintiff was not entitled to cross-examine the motorman as though he were an expert witness for the plaintiff, nor as to matters not covered by the examination in chief.

PARKER, J. The plaintiff's testatrix, while a passenger on an open trolley car operated by defendant, was frightened by a sudden blowing out of the controller box, with accompanying smoke, flame, and noise, and either jumped or fell from the car, sustaining injuries which caused her death. Questions of negligence and contributory negligence, being concededly for the jury, are not raised on this appeal; the sole matters of law discussed relating to rulings on the admission of testimony.

The complaint counted on negligence of the defendant company, both in operation of

(Court of Errors and Appeals of New Jersey. the car and in maintaining the electrical

June 14, 1920.)

(Syllabus by the Court.)

1. Carriers

317(5)-Railroad's failure to

apparatus operating it in a defective condition. The rulings in question bear on the latter issue.

[2] The first group of rulings brought up buy controllers during specified period ir-relates to various questions asked of the relevant.

motorman, called for the defendant, on his On the trial of an issue whether the blowcross-examination. These were directed to ing out of the controller box on a trolley ascertaining the extent of his experience, his car was due to negligent maintenance of the knowledge of the electrical equipment, and box and the electric equipment connected therewith, evidence that for three years the especially what, in his opinion, caused the defendant trolley company, owner of the car, blow-out. It is argued that he should not had not purchased any new controller boxes, be questioned on cross-examination as though is irrelevant and incompetent, and its admis- he were an expert witness for the plaintiff, sion is harmful error. nor be cross-examined in matters not cover

(110 A.)

trees were destroyed by defendant's negligence, [ that he was familiar with the plaintiff's to testify to the amount of the damage to the property and had examined it both before value of the property resulting from such de- and after the shade trees were killed, and struction. that its market value was from $500 to $600 less by reason of the loss of the shade

The Chief Justice, and Swayze, Trenchard, Heppenheimer, Williams, and Taylor, JJ., dissenting.

Appeal from Supreme Court.

Action by Thomas E. Burrough against the New Jersey Gas Company. Judgment for plaintiff, and defendant appeals. Affirmed. Norman Grey and Charles V. D. Joline,

both of Camden, for appellant.

E. C. Waddington, of Camden, for respond

ent.

trees.

The admission of this evidence is attacked for three reasons:

1. It is claimed that the subject, namely, the monetary effect upon its market value of the presence or absence of shade trees on a man's dwelling house property in a country village, is not properly a subject for expert testimony, because on such a subject the as that of the expert witness. But this objudgment of each of the jurymen is as good viously is not true. Every one who has lived in the suburbs or in the country in the WHITE, J. Plaintiff recovered a judgment summer time knows that properly located for $497 and costs, for damage to his home- shade trees add to the comfort of the dwellstead in the killing of two shade trees and ing house he occupies, but he does not know the contamination of a well of drinking water how much they add to its market value unthereon, by illuminating gas escaping from less he has special knowledge upon the subpipes and connections negligently constructed ject. Neither would the members of the jury and maintained by defendant in the adjoining so know without such special knowledge. If highway. A former similar judgment was they are not to be expected to know the marreversed by this court (Burrough v. New Jer-ket value of a particular country home withsey Gas Co., 88 N. J. Law, 643, 96 Atl. 895) out hearing the testimony of those specially because two real estate agents were permit-qualified to know its market value, how much ted to testify to, and to the amount of, the less can they be expected to know the mone diminution in value of the property from the tary value of the elements which go to make destruction of the shade trees upon showing up that market value? In Elvins v. Delaonly a general real estate agent expert qual-ware & Atlantic Telephone Co., 63 N. J. Law, ification in the neighborhood, but without any 243, 43 Atl. 903, 76 Am. St. Rep. 217, Justice evidence of special knowledge or their part Van Syckel, speaking for this court, said: of the particular subject under investigation, namely, the effect upon real estate values resulting from the presence or absence of shade trees upon like properties similarly situated. A like error is now claimed in the present trial, but we think without foundation.

for commercial purposes, but still that value their location on the premises, the time it takes depends upon the size and variety of the trees, to grow them and the price which well-shaded residence lots in the same locality have com. manded during a period of years, in excess of lots as well situated, but without the attraction of shade or ornamental trees. Such special knowledge, not ordinarily possessed, might be acquired by a real estate agent or by an experienced landscape gardener, and it would be within the domain of expert knowledge qualifying a witness to give evidence of his opinion as to values."

"It certainly requires some special knowledge to be able to estimate the value of trees. If they are to be cut into cordwood the witness say how many cords they will make. Whether must have some experience to enable him to they can be more profitably disposed of for The testimony complained of is that of cabinet making purposes, for railroad uses, or Sheriff Hendrickson (a witness not called on to the carriage builder, requires still more exthe former trial) whose qualification testino-perience. The value of trees as shade trees ny showed that he is and has been for 12 cannot be so accurately computed as their value years actively engaged in the real estate business of buying and selling and placing mortgages upon properties in Gloucester county similar in character and location to the plaintiff's property; that he had bought and sold such properties (giving and being cross-examined upon the particular instances) with shade trees and such properties without shade trees on them; that from this experience he was able to say that the absence of shade trees diminished the market value of such properties, and how much; that he was a member of the shade tree commission of Woodbury in Gloucester county, and as such had had to do with the planting of new young shade trees and with the replacing of old dead ones and with the buy- 2. It is said that none of the special ining of shade trees for planting, and had made stances of sales or purchases of properties a study of the beneficial effects of shade with or without shade trees, which formed trees in the neighborhood in question. He the basis of the witness Hendrickson's spe

We think, therefore, that the subject falls within that class to which expert testimony is properly applicable.

(110 A.)

Hurfville, which is where the plaintiff's prop- [ the former, was permitted to testify to the erty was situated. But Hurfville is a small monetary difference in the rentable and usacountry village of one or two dozen houses, ble value per year between the property inand the testimony showed that the villages volved in the suit before and after it had where the special-experience sales occurred been deprived of its water supply to the exwere similar to Hurfville and were all in the tent that it was so deprived. In condemning same part of Gloucester county and within a the admission of the opinion of this witness, radius of about seven miles of Woodbury. Justice Bergen, speaking for this court, said: We think the learned trial judge was quite "Nor does it appear that she ever had occawithin the limits of his discretion in admit- sion to know, or make any comparison between, ting the evidence so far as this point is con- the rental value of properties supplied with cerned. Quite likely also the evidence was water and those not so supplied." admissible on the ground that it furnished some criterion, and, while not the best that could be imagined, was in fact the best that the circumstances furnished; for it might