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about 125 feet of this balustrade was de- , which to nail such single sheathing as night stroyed or so badly burned as to require re- be used in order to bring the surface of the placement, and that the cost of replacement single sheathing out to the general line of the would be $375, or $3 per foot. Mr. Beck tes surface of the outer walls remaining, and not tified to all this, and also that the cost of re- in need of reconstruction, so that the clapplacing the portion of the jet destroyed would boards to be nailed upon the sheathing would be $2 per foot. Upon conference with Houli- come into alignment with the clapboards re. han and Evans Mr. Beck found that they maining upon the walls not destroyed; but had allowed a loss of $2 per foot on the jet it nowhere appears that any allowance was and nothing in addition for the balustrade, made for the expense of such additional "fur. Mr. Houlihan in effect saying, when ques. ring." Upon this point we think that the re. tioned by Mr. Beck why no allowance was fusal to allow anything for the loss of double made for the balustrade, that he had allowed sheathing was an arbitrary refusal; this for the balustrade in allowing for the jet. method of construction was proper, even if It is obvious that the balustrade was no part unusual; it added value to the house and was of the jet; it was an architectural feature of substantial value to the owner; and the of ornament and possible utility, frequently reason given “that they were not building placed upon large houses with flat roofs; houses that way now” furnished no basis for and it is evident from the testimony that the the refusal. Such a reason might be urged claim that the cost of its restoration was in-as to any method of construction used by cluded in the figures allowed for the restora- owners of houses of large size, seeking station of the jet was a mere evasion, and that bility and protection from the bitter winds its omission from the items of loss was an of winter; many people during the past winarbitrary omission.

ter, with its bitter cold and the difficulty of It also appears that the main body of the obtaining adequate fuel, would have been house was constructed with double sheathing' thankful if their houses had been constructi. e., that it had a sheathing of ordinary ed with double sheathing so as to enable them boards pailed onto the upright joists or to conserve the little heat they had and keep framework of the house; that over this was out the cold. As well might the appraisers paper, and over the paper a boarding con-' | say, in case of injury to hardwood floors, or sisting of tongued and grooved white pine | to polished mahogany or black walnut wainwhich was painted, and again over this were scoting, hard-finished stucco walls and ceilclapboards for the outside finish. A very ings; in soméwhat old-fashioned residences, substantial portion of the outside walls of that they would not allow for their loss and the house so constructed was destroyed or so the cost of replacement because nowadays it damaged by the fire as to require reconstruc- is the custom to build houses with cheaper tion and replacement with new material, and

floors, or with white wood wainscoting paintit appeared from the testimony of Mr. Beck, ed, or with rough plaster walls and ceilings

of the other contractors and builders covered with cheap paper. who corroborated him, that the cost of re

Besides the above-mentioned important placing this double sheathing in as good con

items of exterior construction, the evidence dition as before the fire would be from $400 shows that the plumbing work and heating to $600, that the tongued and grooved mate- apparatus within the house, V

apparatus within the house, which are exrial was of white pine, which was then very pressly enumerated among the fixtures covscarce in the market and very expensive, and ered by the terms of the submission as above that they did not allow for that, but for a quoted, were very badly damaged. It apless expensive pine, which could be easily pears that the fire broke out early in the procured and would answer the purpose. It morning, and that from about 6:30 to 11 a. further appears that Houlihan (with whom m. two streams of salt water from an adjaEvans appears to have agreed in all respects),

cent cove were being pumped into the house when this item of double sheathing was call. to put out the fire, and that the house was ed to his attention and he was asked why he

flooded with salt water from attic to cellar, made no allowance for it, said in substance,

that a water tank on the third floor, made of “that they were not building houses that

plank and lined with copper and worth about way now," and gave no other reason for re

$100, was totally destroyed, and that other fusing to allow the item. It further appears

serious damage was done to the plumbing from the testimony of Mr. Beck and the other system, and to the heating system, which was corroborating witnesses that this method of composed of a steam generator and of direct construction, although not now or perhaps pipes to steam radiators, and also of indirect ever commonly used in building dwelling | heating through a brick chamber and regishouses, was of substantial value to the own- ters. The witness Beck estimated the damer, in that it made the outer walls tighter age done to the heating and plumbing appaand stiffer, kept out the cold, and made the ratus as upwards of $500. In this he was corhouse more stable. It also appeared that if, roborated by the witness Hainsworth, an exin the restoration of the house, double sheath-pert of over 30 years' experience in plumbing ing was not used, it would be necessary to and heating apparatus, living in Wickford,

l

before the fire done work on that apparatus , 5, 6, 7, 9; that Issue 3, in our view of the in that house, and was thoroughly familiar case, is immaterial; that as to issue 4 there therewith, and with its condition just prior is no evidence that tb.y were interested in to the fire. He testified that the apparatus the result, but there is evidence that they did was in good condition and good repair at that not act impartially; that as to issue 8 there time. He examined it in detail just aft:r the is no evidence of sufficient clearness to warfire, and testified that it would cost, in his rant a finding; that issue 10 should be anestimation, based upon what damage he ac- swered in the negative; that as to issue 11 tually saw, $570 to put the plumbing and there is no evidence sufficient to warrant a heating apparatus in as good condition as it finding. was before the fire, and that it would cost in We think the case in its general aspects is addition $125 to $150 to take down the fur- within the scope of the decision in Low EsDace in order to be sure that it was put in tate Co. v. Lederer Realty Co., 35 R. I. 352, proper condition before it would be safe to 361, 86 Atl. 881, Ann. Cas. 1916A, 341, allight a fire therein. When Mr. Beck consult though some of the more important facts of ed with Messrs. Houlihan and Evans just be that case which warranted the court in setfore they signed the award, he found that ting aside the award were different in charthey had allowed nothing for plumbing dam- acter. The award in that case, however, was age, and only $35 for heating damage, and grossly inadequate by reason of the fact that after an extended argument with them, call the appraisers misconceived their duty. In ing their attention to the matters above set the case at bar the complainants have cited forth, they finally agreed to allow $100 for certain cases in support of their contentions, the loss of the tank, and $75 for some other which in their general principles are in point. items apparently relating to the heating, but Buys V. Eberhardt, 3 Mich. 524; Van Cortnot clearly shown in the testimony. In the landt v. Underhill, 17 Johns. (N. Y.) 405; opinion of this court, here again was evi Chicago, etc., Co. v. Stewart (C. C.) 19 Fed. 5, dence of an arbitrary refusal to allow any 8; Adams v. N. Y. Bowery Fire Ins. Co., 85 thing for substantial items of damage spe- | Iowa, 6, 51 N. W. 1149; Schmidt Bros. v. cifically brought to the attention of Messrs. Boston Ins. Co., 82 App. Div. 234, 81 N. Y. Houlihan and Evans.

Supp. 767; Phenix Ins. Co. V. Moore (Tex. It is needless to prolong further the exami. Civ. App.) 46 S. W. 1131; American Fire Ins. nation of the evidence in regard to the action Co. v. Bell, 33 Tex. Civ. App. 11, 75 S. W. of these appraisers. The witness Beck is 319; Canfield v. Watertown Fire Ins. Co., fully corroborated by experts of apparent 55 Wis. 419, 13 N. W. 252; Hong Sling v. Nat. fairness and long experience as to his esti- Assur. Co., 7 Utah, 441, 27 Pac. 171; Provi. mates in the matters specifically above re dence Washington Ins. Co. v. Board of Edu. ferred to, as well as in his general estimate cation, 49 W. Va. 360, 38 S. E. 679; Ross v. of the entire amount of loss and damage to German Alliance Ins. Co., 86 Kan. 145, 119 the house. These corroborating witnesses Pac. 366, Ann. Cas. 1913B, 1045. made their estimates independently of Mr. We find few cases cited upon defendants' Beck, and without conference with him; be brief and none which affect this case. did not know their figures, nor they his, till! We are of the opinion that the trial judge after the respective estimates were completed. failed to give due consideration to the weight

The evidence convinces us that many spe of the testimony in this case, which was un. cific items of loss and damage above set forth contradicted, and that he was in error upon which were of substantial pecuniary value to both points, upon which ble granted the mothe assured and which were proper subjects tion to dismiss, and was in error in entering of appraisal and award under the submission the decree appealed from dismissing the were specifically called to the attention of | bill. said appraisers, and were so obvious that We do not intend by this opinion to be said appraisers, if they properly appreciated understood to have made any conclusive find. their duty, should themselves have taken no- ings of fact as to any specific amounts of loss tice of them, and that said appraisers will. or damage above referred to. Such amounts fully refused to allow anything in several im- will presumably be the subject of another inportant instances; and these instances, cou- quiry before another tribunal. We have pled with the well-supported evidence as to simply determined upon the uncontradicted gross inadequacy of the award in its total | testimony before us that the award is inamount, lead us to the conclusion that the valid for the reasons above set forth. award as a whole was unjust, inequitable, The appeal is allowed, the decree appeal. and grossly inadequate.

ed from is reversed, and the cause is remandIt is our opinion that there is ample evi-ed to the superior court sitting in Washing. dence in the record before us to warrant an ton county, with direction to enter its decree affirmative answer to issues numbered 1, 2, setting aside the award.

City.

(11 Del. Ch. 428)

now operate prejudicially and inequitably to KINGSTON et al. v. HOME LIFE INS. CO. them, they may have the question determined OF AMERICA et al.

by the court under a bill that fairly and (Supreme Court of Delaware. June 18, 1918.) clearly presents the question. COBPORATIONS Ow204-ACTION BY MINORITY

The decree of the Chancellor is affirmed. STOCKHOLDERS-AVOIDANCE OF CONTRACT.

Where a contract between a private corporation and an insurance company whereby the

(99 N. J. Law, 63) corporation has a perpetual and exclusive option

BERRY V. O'NEILL et al. to purchase the stock of the insurance company is.

hold (Supreme Court of New Jersey. June 19, 1918.) operates prejudicially to the minority stockhold- loup ers of the insurance company, they may bring

(Syllabus by the Court.) a bill to have such contract terminated.

11. SUNDAY 12–CONTRACT_VALIDITY. Appeal from Chancery Court, New Castle The mere carrying on of negotiations on SunCounty.

day will not invalidate a contract completed on Bill by Thomas Kingston and others against

a secular day. The final consummation of the

contract on Sunday is necessary to bring it withthe Home Life Insurance Company of America in the prohibition of the Sunday statutes. and another. From a decree for respondents 2. SUNDAY 23—CONTRACT EVIDENCE, (101 Atl. 898), complainants appeal. Affirmed. It is open to the trial judge, sitting without PENNEWILL, C. J., and BOYCE, CON- a jury, to determine that the plaintiff's contract

of employment as an architect to make plans RAD, and RICE, JJ., sitting.

for a house and garage was not a Sunday con. Thomas Raeburn White. of Philadelphia, tract, when the evidence tended to show that,

though the parties on a Sunday discussed the Pa., and Caleb S. Layton, of Wilmington, for

probable cost of various kinds of houses and appellants. John P. Connelly, of Philadelphia, the architect's customary charges, yet the SunPa., and Charles F. Curley, of Wilmington, day interview terminated to give the plaintiff a for appellees.

chance to "think it over," and the defendant an

opportunity to purchase a lot on which to build This was a bill by shareholders of the and decide upon the character of house desired, Home Life Insurance Company to annul con

and the parties later, on a week day, agreed

upon the employment to make plans, not only tracts entered into by and between said com

for a house of a designated cost, but also for a pany and the Home Protective Company. garage. The statement of the case by the Chancellor,

Appeal from District Court of Atlantic in 11 Del. Ch. --, 101 Atl. 898, is ample, and a restatement here is unnecessary.

Action by Frank A. Berry against Robert

J. O'Neill and another. Judgment for plainPER CURIAM. After a careful considera

tiff, and defendants appeal. Affirmed. tion of this case the court are of the opinion

| Argued February term, 1918, before that the decree of the Chancellor should be

SWAYZE, TRENCHARD, and MINaffirmed, but think it proper to say that while

TURN, JJ. the arrangement under which the Protective Company advanced money to the Insurance

U. G. Styron, of Atlantic City, for appel.

lants. Lee F. Washington, of Atlantic City, Company may not have been illegal or unfair, and the stock option not invalid when entered for appellee. into yet if it now appears to work inequitably to the minority stockholders it should be

TRENCHARD, J. The plaintiff below terminated. The evidence, within the find

brought this suit to recover for services renings of the Chancellor, seems to disclose a

dered as architect in drawing plans and specsituation with respect to the stock option

ifications and taking estimates from various which, if continued, might operate prejudi.

contractors for a frame house and brick cially to the minority stockholders of the In

garage for the defendants. The trial judge, surance Company; for it appears that the

sitting without a jury, rendered judgment present value of the stock of the Insurance

for the plaintifr, and the defendants apCompany is very considerably in excess of the pealed. par value. If this be so, it would be the duty

We are of the opinion that the judgment of the court to consider in a proper case

to consider in a proper case must be affirmed. At the trial it appeared whether it is sufficient to render the stock that the services were rendered and that the option at this time inequitable, and whether claim therefor was unpaid. The defendants' the Protective Company, after so long a lapse sole contention on this appeal is that the of time in which to exercise its option, and be evidence showed that the contract of emfore the stock had increased so much in ployment, upon which the judgment rests, value, has any claim in equity for the continu was made upon a Sunday, and was therefore ance of the option.

void. The question suggested, viz. the terminal (1) In general, a contract made on Sunday tion of the option contract, was not before the is void. Rosenblum v. Schachner, 84 N. J. Chancellor, and, perhaps, could not have been Law, 525, 87 Atl. 99, and cases there cited. considered by him under the bill filed. But But the mere carrying on of negotiations on If minority stockholders of the Insurance Sunday will not invalidate a contract comCompany are satisfied that said contract does pleted on a secular day. The final consum

mation of a contract on Sunday is necessary into court the defendant moved at chambers to bring it within the prohibition of the to strike out the complaint and dismiss the Sunday statutes. Burr v. Nivison, 75 N. J. action upon the ground that the suit was Eq. 241, 72 Atl. 72, 138 Am. St. Rep. 554, 20 brought by the general administratris of the Ann, Cas. 35.

decedent contrary to the provisions of chap[2] Tested by this rule, we think the con- ter 180 of the laws passed by our Legislature, tract of employment in the present case was and approved by the Governor, in 1917. not invalid. True, there was an interview Pamph. Laws, p. 531. A rule to show cause on a Sunday between the parties at which why this application should not prevail was the probable cost of various kinds of houses allowed, and the matter is before us for dewas discussed, and the plaintiff's customary termination. charge for drawing plans and supervision. The statute appealed to by the defendant was asked and stated. But the defendants is a supplement of our "Death Act" (2 Comp. had not yet acquired a lot upon which to St. 1910, p. 1907, 88 7-9), and provides that build, nor decided upon the kind and cost of every action instituted under and by virtue the house desired, and the Sunday interview of its provisions "shall be brought in the terminated to give the plaintiff a chance to name of an administrator ad prosequendum." "think it over" and the defendants an op- It is, of course, apparent that if this action portunity to purchase a lot and decide upon was brought for the enforcement of a remethe character of house required. Later the dy given by our "Death Act” the procedure defendants acquired a lot, and determined to must be that provided by the statute and its build, not only a house of a designated cost, supplements. The trouble with the defendbut also a garage, and the interview at which ant's case, however, is that the remedy the employment of the plaintiff to plan these sought to be enforced is not provided by our was agreed upon was on a week day. Ob- state statute, but is conferred by federal legviously, in this state of the proof, it cannot islation; and in the enforcement of a remedy be said that the judgment in question rests thus conferred the method of procedure proupon a Sunday contract.

vided by Congress must control. The lanThe judgment below will be affirmed, with guage of the federal act is that the liability costs.

of the carrier in case of the death of the employé is “to his or her personal represent

ative for the benefit of the surviving widSWANK v. PENNSYLVANIA R. CO., low," etc.; and that language has been con(Supreme Court of New Jersey. June 11, 1918.) strued by the United States Supreme Court COMMERCE 8(6)–FEDERAL EMPLOYERS' LI. to mean the executor or general administraABILITY ACT-ACTION FOR DEATH-PLAIN- tor. American Railroad Co. v. Birch, 224 U. TIFF-“PERSONAL REPRESENTATIVE."

S. 547, 32 Sup. Ct. 603, 56 L, Ed. 879; MisAct March 27, 1917 (P. L. p. 531), supplemental of the Death Act, requiring action insti-souri, Kansas & Texas Ry. Co. v. Wulf, 226 tuted under and by virtue thereof to be in the U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. name of an administrator ad prosequendum, Cas. 1914B, 134; St. Louis & C. Ry. Co. v. does not apply to action under federal Employ: Sea ers' Liability Act (U. S. Comp. St. 1916, 88

Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. 8657-8665). declaring liability of carrier for Ed. 1129, Ann. Cas. 1914C, 156. death of employé to his personal representative, The plaintiff, as general administratrix, meaning his executor or general administrator. | being the only person who is entitled to

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Personal

maintain the present action, the rule to show Representative.]

cause will be discharged. Action by Elizabeth Swank, administratrix, against the Pennsylvania Railroad Com

(91 N. J. Law, 713) pany. Heard on defendant's rule to show

SAPER v. BAKER. cause. Rule discharged..

(Court of Errors and Appeals of New Jersey. Argued February term, 1918, before

July 2, 1918.) GUMMERE, C. J., and PARKER and

1. TRIAL m295(10)-INSTRUCTIONS. KALISCH, JJ.

} An excerpt from instruction, “I cannot recal] Gaskill & Gaskill, of Camden, for the rule. I deceased did anything which was careless or neg

| any testimony in the case which shows that the James Mercer Davis, of Camden, opposed. ligent, or contributed to the accident," was not

erroneous, where in same instruction jury were GUMMERE, C. J. This suit is brought by told they could consider wb

told they could consider whether there was any the plaintiff as the general administratrix

contributory negligence. of Herbert L. Swank, deceased. Mr. Swank,

2. MUNICIPAL CORPORATIONS Ow705(1)-COL

LISION-LIGHTS. at the time of his death, was in the employ

A person in street with wheelbarrow need of the defendant company, and, according neither carry a light nor have one on wheelbarto the averment of the complaint, lost his row. life by accident while being employed by the 3. APPEAL AND ERROR 1066 - HARMLESS defendant company in interstate commerce.

ERROR-STATEMENTS TO JUROR.

Where court, on being asked by juror whethThe action is brought under the federal Em-I er wheelbarrow was supposed to have a light, ployers' Liability Act. Upon being brought | answered that a wheelbarrow was not obliged to

have a light, and, in addition, that man pushing! If this were all there was of the charge in it was not obliged to carry a light, the additional that regard, we might be called upon to say matter in the answer, although irrelevant, was whether or not it was erroneous but in point harmless.

of fact, it was not all, but is an excerpt from Appeal from Circuit Court, Passaic County. the charge, severed from its context. What

Action by Fannie Saper, administratrix of the trial judge said on this score was as Louis Saper, deceased, against John Baker. follows: Judgment for plaintiff, and defendant ap "You may also consider, gentlemen, whether peals. Affirmed.

there was any contributory negligence on the

part of the deceased. I cannot recall, myself, Kalisch & Kalisch, of Newark, for appel- any testimony in the case which shows that the lant. Ward & McGinnis. of Paterson. for deceased did anything which was careless or neg. appellee.

ligent or contributed to the accident. Now if you find that the defendant was guilty of negli

gence then, of course, you come to the question PER CURIAM. The defendant seeks to of damages.” reverse a judgment of the Passaic circuit That is not all. The trial judge further court in favor of the plaintiff. The action charged as follows: grew out of the death of Louis Saper, whol. “So take the case gentlemen, and determine, in the early evening of November 1, 1916,

first, was there negligence on the part of the de

fendant, acting through the driver of the car. was killed by an automobile driven by the If there was, and there was no contributory neg. daughter of defendant. The accident hapligence, then you take up the question of dampened shortly before 6 o'clock on Jefferson ages." street in the city of Passaic. The deceased, There was no error in the charge as deaccording to the testimony, was pushing a livered upon the question of contributory wheelbarrow along Jefferson street on the negligence. right-hand side in a westerly direction, and [2, 3] 4. The defendant-appellant states his had not quite reached Hope avenue, which fourth point as follows: crossed Jefferson street. The automobile “Because the trial court, upon being asked by driven by the daughter of the defendant was

a juror, the following question, 'Whether a

wheelbarrow is supposed to have a light on,' ergoing in the same direction and approached

roneously and improperly answered the question the deceased from behind, and without warn- in the following manner: 'A wheelbarrow is not ing knocked him down and ran over him. in-obliged by the law to have a light under the flicting fatal injuries. At the intersection of

conditions here disclosed, and the man is not

obliged to carry a light either.'” Jefferson street with Hope avenue was a

This answer by the trial judge to the julighted arc lamp, and there were stores on the corners, all lighted, although it was not

| ror's question was not erroneous. It went

further than the question in stating that the completely dark at the time of the accident. The defendant advances four grounds for

deceased was not obliged to carry a light.

It was, however, correct as a proposition of reversal of judgment, viz.: (1) The court's

law, although irrelevant in respect to the refusal to nonsuit; (2) the court's refusal to

man himself. It was therefore harmless. direct a verdict; (3) a remark of the trial

The judgment under review will be afjudge as to certain evidence he did not re

firmed. call; (4) his answer to a request of one of the jurors as to whether the law required the deceased to have a light on his wheelbarrow. ALBRIGHT v. VAN VOORHIS et al. 1. The defendant was lawfully upon the

(No. 43/615.) highway at the time of the occurrence of the

(Court of Chancery of New Jersey. June 12, accident, and he was not required to carry a

1918.) light himself or on the wheelbarrow which

1. WILLS Omw 634(13)–CONSTRUCTION-VESTED he was pushing. On the question of negli

REMAINDERS. gence a jury question was presented at the Under devise of homestead to wife for life, close of the plaintiff's case, and therefore

and at her death to children or their legal repthe trial judge's refusal to nonsuit the plain

resentatives, remainder vested in children at

| testator's death. tiff was correct.

2. WILLS 634(15) - CONSTRUCTION - RE2. At the close of the whole case the situ- MAINDERS. ation was not changed, and the trial judge

Under a bequest of income from personalty likewise rightly refused to grant a motion

to children, principal upon death of children to

be divided among their legal representatives, lefor the direction of a verdict in favor of the

gal representatives can only be determined when defendant.

survivor dies. [1] 3. The defendant appellant states his 3. WILLS 507-CONSTRUCTION—"HEIRS AT third point as follows:

LAW.”

Where testator gave child income of proper"Because the trial court erroneously and im- ty, the principal at his death to go to child's properly charged the jury as follows:' 'I cannot heirs at law, if property at child's death was recall, myself, any testimony in the case which realty, or realty not notionally converted, “heirs shows that the deceased did anything which was at law" meant technical heirs (2 Comp. St. careless or negligent or contributed to the acci- 1910, p. 1918); but if personalty, or realty no

I tionally converted, heirs at law meant next of

dent.'"

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