within the purview or prayer of the petition, and is not presented by this appeal. If foreclosure proceedings are defended, or if a mortgagor files his bill to redeem, as was done in the Weir Case, the facts constituting such defense or such suit to redeem may be dealt with as they arise; for, as was observed by Vice Chancellor Reed in the Weir Case, the right to foreclose and the right to redeem are so far reciprocal that questions material to the ascertainment of the debt due on the mortgage may be as well settled in one form of action as in the other.

The order of the Court of Chancery should therefore be reversed, to the end that it may be modified, so as to apply in its present form only to mortgages that had not, while the association was a going concern, become due and payable by the mortgagor's default in the payment of dues, interest, and premiums. As to mortgages that had thus become due by the default of the shareholder as aforesaid, the receivers should be directed that, in collecting or computing the amounts of such mortgages, they should proceed in like manner as the directors of the association might have done, if enforced liquidation or insolvency had not supervened.

(76 N. J. L. 602)

CARTER v. WEST JERSEY & S. R. CO. (Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. DEATH ( 31*)-WHEN ACTION MAINTAIN

ABLE.

Where children are supported in a home maintained with the earnings of the father, and the mother performs the ordinary household duties, including such care of the children as a mother usually takes, and the mother loses her life through the wrongful act of a third party, the statute (P. L. 1848, p. 151; Gen. St. 1895, p. 1188, § 10) permits an action to be maintained by the administrator of the mother to recover, for the benefit of the children, the damages occasioned by the deprivation of the expectation of pecuniary advantage which would have resulted by a continuance of the mother's life.

[Ed. Note. For other cases, see Death, Cent. Dig. 38; Dec. Dig. § 31.*]

2. DEATH (§ 18*)-RIGHT OF ACTION-PECUNIARY BENEFITS.

The statute (P. L. 1848, p. 151; Gen. St. 1895, p. 1188, § 10) does not require the plaintiff to show that the next of kin would probably have received from the deceased contributions of money, or of things purchased with money.

[Ed. Note. For other cases, see Death, Cent. Dig. 20; Dec. Dig. § 18.*]

Garrison, Reed, and Voorhees, JJ., dissenting. (Syllabus by the Court.)

Error to Circuit Court, Camden County. Action by William B. Carter, administrator of Ida M. Carter, against the West Jersey & Seashore Railroad Company. Judgment

for plaintiff, and defendant brings error. Affirmed.

Gaskill & Gaskill, for plaintiff in error. Lewis Starr, Allen S. Morgan, and James Gay Gordon, for defendant in error.

PITNEY, C. This action was brought under the so-called "Death Act" (P. L. 1848, p. 151; Gen. St. 1895, p. 1188, § 10) and resulted in a verdict and judgment for substantial damages. It appears from the record and bill of exceptions that William L. Carter and Ida M. Carter, his wife, while traveling as passengers upon an electric railway car op erated by the defendant company, lost their lives through the derailment of the car. The resulting actions against the company were tried together. The defendant's responsibility was admitted. The deaths occurred on October 28, 1906, when the husband was 36 years of age, and the wife two years young. er. There was no direct evidence to show whether either survived the other. They left surviving two daughters, one 14 and the other 10 years of age, who by the terms of the statute (amended Act March 31, 1897 [P. L. p. 134]), are the beneficiaries of the resulting actions against the company. The present writ of error brings under review only the judgment in favor of the adminis trator of Ida M. Carter, the wife.

woman

Motions were made for a nonsuit and for the direction of a verdict for the defendant, upon the ground that there was nothing to show any pecuniary loss to the next of kin as a result of Mrs. Carter's death. We think these motions were properly overruled. There was evidence to show that the children lived with their parents in the city of Camden, in a home maintained with the earnings of the father, and that the wife performed the household duties, except that a was occasionally employed to do washing and cleaning. It was reasonably to be inferred that she took such care of her children as a mother usually takes. The statute provides that the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the next of kin. As was long ago pointed out by Chief Justice Beasley, this means "A deprivation of a reasonable expectation of a pecuniary advantage, which would have resulted by a continuance of the life of the deceased." Paulmier, Adm'r, v. Erie R. R. Co., 34 N. J. Law, 151, 158. This definition has been consistently adhered to in subsequent cases. Demarest v. Little, 47 N. J. Law, 28, 30; Consolidated Traction Co. v. Hone, 60 N. J. Law, 444, 446, 38 Atl. 759; Cooper v. Shore Electric Co., 63 N. J. Law, 558, 567, 44 Atl. 633. Under circumstances such as are here presented we think there is a reasonable inference that the continuance of the mother's life would have resulted in substantial pe

cuniary benefit to the children. The statute does not require the plaintiff to show that the next of kin would probably have received from the deceased contributions of money or of things purchased with money.

In Tilley v. Hudson River R. R. Co., 24 N. Y. 471, 475, Denio, J., said: "The injury to the children of the deceased by the death of their mother was a legitimate ground of damages; and we do not agree with the defendant's counsel that they ought to have been nominal. The difficulty upon this point arises from the employment of the word 'pecuniary' in the statute, but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the person from whom they would have proceeded; and the word 'pecuniary' was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes also those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of be ing defined by any recognized measure of value. But infant children sustain a loss from the death of their parents, and especially of their mother, of a different kind. She owes them the duty of nurture and of intellectual, moral, and physical training, and of such instruction as can only proceed from a mother. * It is argued by the defendant's counsel that there should be no recovery on these grounds, because the father is obliged to provide what the children have been deprived of by the loss of their mother. But this is not an adequate answer. The children have been deprived of that which they were entitled to receive by the wrongful act of the defendants. Their loss may or may not be made up to them from another source; but in the meantime they are entitled to a fair and just compensation from the wrongdoers by the provisions of this statute." And see s. c., 29 N. Y. 252, 285, 86 Am. Dec. 297. In Gottlieb v. North Jersey St. Ry. Co., 72 N. J. Law, 480, 63 Atl. 339, this court decided that under the statute an action may be maintained by the administrator of a deceased wife for the benefit of her next of kin, notwithstanding the husband be still living. In that case the husband was himself administrator.

*

In the present case it is argued that the services rendered by Mrs. Carter to her children were rendered in performance of the duty that she owed to her husband, and the suggestion is that the children's expectation of benefit in this behalf was, or ought to have

administrator of their father. The record before us does not disclose what was the outcome of the latter action; nor, in our opinion, are we concerned with it. Each parent owes duties to the children, independent of the marital duties they owe to each other. The presumption is that the death of both parents is more detrimental to dependent children, from the pecuniary standpoint, than the death of a single parent only. What damages ought to be allowed for the death of either is to be regulated by instructions to the jury. May v. West Jersey, etc., R. R. Co., 62 N. J. Law, 63, 42 Atl. 163, is cited as sustaining the proposition that, pending the husband's life, the wife's services in the household are due to him, and are only incidentally beneficial to the children, and that the prospect that the wife would have survived the husband, whereupon her services would become a direct pecuniary benefit to the children, is too remote to be considered in fixing the pecuniary benefit of which the children are deprived by the mother's premature death. In the case referred to the only question for determination was whether the damages were excessive. The decision is not authoritative upon the question of the right of recovery, and in the discussion of that question the expressions in the opinion are not to be accepted without modification. Moreover, if we were to treat the mother's care of young children as bestowed, during the father's lifetime, in performance of a duty owing to him rather than to them, the assumption would have little, if any, bearing upon the present case. For here the father's life had already terminated before the issue was tried, and so his expectancy of life was no longer in the realm of speculation. Not only so, but his death was caused by the same act of the defendant that terminated the mother's life. There was no error in the refusal of the motions for nonsuit and for direction of a verdict in favor of the defendant.

The only other ground relied upon for reversal is the instruction of the trial judge to the jury respecting the damages to be allowed in the event of a verdict for the plaintiff. Taking the whole of the charge together, we think it not open to reasonable criticism upon this point.

The judgment under review should be affirmed.

GARRISON, J. (dissenting). ` The beneficiaries in whose interest this judgment was recovered are the children of William L. and Ida M. Carter, both of whom were killed in the same railway accident. The resulting actions against the company, in the cases of both the father and the mother of the beneficiaries, which, as stated in the opinion, were brought by the same administrator, in the same court, were tried togeth

charge, in which the rule for the admeasurement of damages in each case was laid down. In the father's case the jury was instructed that in awarding the damages which were to be only of a pecuniary nature, they should take into consideration "the loss by these children of the maintenance and support of their father, the comforts and conveniences of home, the education of these children, and the provision at his death from the accumulated savings of his income."

In the case of the mother, which is the one before us on this writ of error, the jury was instructed: "As to the other suit, the suit brought by the administrator of the mother, Ida Carter, you may award such sum as you think these children have lost by being deprived of her services, care, and attention which had she lived she would have given to them, and which now must be procured by them in some other way."

This instruction, which was specifically excepted to, is in my opinion an erroneous one that permitted, if it did not necessitate, a reduplication of damages. The concrete vice of the instruction is that, if it is limited to damages of a pecuniary nature, it covers the same ground as the instruction given in the case of the father. If it is not so limited, it is on that account erroneous. Assuming that in each case the damages were only such as were of a pecuniary nature, the "services, care, and attention" of a mother, which the jury were told to give in one case, are normally directed chiefly, if not wholly, to securing and promoting the "comforts and conveniences of home and the education of the children," which the jury had been told to award in the father's case; so that, if the jury obeyed both instructions, as we must presume they did, they necessarily awarded in the case of the mother damages which, in so far as they were of a pecuniary nature, they also awarded to the case of the father, and which, if not of a pecuniary nature, should not have been permitted in either case.

This result inevitably inheres in the instructions that were given to the jury, and does not depend upon any speculations as to matters aliunde respecting survivorship.

For this judgment in the case of the mother of the beneficiaries must stand either upon the theory that the father was living at the time of her death, or that he was not. If the former, then under the instruction of the court the children were awarded damages which, in so far as they were susceptible of pecuniary assessment, they had not sustained.

If the latter, they were awarded damages which, in so far as they were capable of pecuniary admeasurement, they recovered in the action for the father's death. Whichever theory be adopted a verdict rendered in accordance with the instruction under re

In an agreement of apprenticeship binding the apprentice to serve as such for "1,200 actual working days," which throughout the indenture were referred to as a term, held, that the above phrase should be construed to mean that the service shall continue through a term or period within which there are 1,200 days, exclusive of Sundays and holidays, and not to mean 1,200 days upon which the apprentice should actually perform work for the master.

[Ed. Note. For other cases, see Apprentices, Dec. Dig. § 12.*]

(Syllabus by the Court.)

Error to Supreme Court.

Action by Morris Robeson against John P. Whitney. Judgment for plaintiff, and defendant brings error. Affirmed.

Francis B. Davis and A. H. Swackhamer, for plaintiff in error. David O. Watkins and John Boyd Avis, for defendant in error.

VOORHEES, J. The judgment removed by this writ was founded upon a balance of moneys due from the defendant to the plain. tiff upon an agreement of apprenticeship, of which the following is a copy:

"This indenture, made the twenty-fourth day of January, A. D. nineteen hundred and two, between Morris Robeson, aged twentyone years, on the thirtieth day of November, nineteen hundred and one, of Glassboro, in the County of Gloucester and State of New Jersey, party of the first part, and J. P. Whitney, of Glassboro, in the County of Gloucester and State of New Jersey, party of the second part, witnesseth: That the said party of the first part has of his own free will and accord, bound himself as an apprentice to said party of the second part in the art, trade and occupation of a glass-blower, with him to serve as an apprentice for twelve hundred actual working days, during which term the said apprentice, his master faithfully shall serve, his secrets keep, his lawful commands and the lawful commands of his agent, manager and employé everywhere obey. He shall do no damage to his said master, nor see it done by others, but he, to the utmost of his power, shall forthwith give warning to his said master of the same. He shall not waste the goods of his said master nor lend them unlawfully to any. He shall not absent himself from his said master's service

unlawfully. He shall not during said term join or become a member of any labor organization. At all times and in all things as a faithful, industrious, and obedient apprentice he shall behave and demean himself towards his said master, and his said agent, manager, and employé. And the said party of the second part in consideration of the faithful services of the said apprentice in the art of glass-blowing, as said art is carried on in the glass factories in New Jersey, and during said term find and provide for the said apprentice or furnish him with the means to find and provide for himself good and sufficient clothing, diet, and lodging, the moneys to be advanced therefor not to exceed one-third the wages of an ordinary workman for the same class of work, but subject in all respects to the stipulations hereinafter mentioned, to which said party of the first part hereby assents and agrees. That in case said party of the first part shall absent himself from the service of the said party of the second part without previous written permission from him or his authorized agent or manager, except only in case of sickness of said party of the first part, when a regular physician's certificate of his said illness is produced if requested, or shall join any labor organization during his term of service, the said party of the second part may cancel this indenture, discharge said apprentice and retain any funds in his hands agreed to be paid to said party of the first part and his waste and damage to the prop erty of the said party of the second part. That the said party of the first part shall and will in all things do, keep, and perform all things in this indenture mentioned on his part to be done, kept, and performed, and shall serve the said party of the second part during the full term of said twelve hundred actual working days. If the said party of the first part shall during said term of service absent himself from the service of the said party of the second part from any cause whatever, said party of the first part hereby agrees to continue serving the said party of the second part under the terms of this indenture until he shall have made up any and all lost time. And the said party of the second part hereby covenants and agrees that he, the said party of the second part, will at the expiration of said entire term of twelve hundred days, if the said party of the first part shall have faithfully done, kept, and performed all duties, services, and agreements by him keep and perform and shall have not absented himself from the service of the party of the second part without the previous written permission from him or his authorized agent or manager except only in case of sickness of said party of the first part when a regular physician's certificate of his said illness is produced when requested, nor be a member of any labor organization

party of the first part one-half the full wages of a skilled workman of the same class of work, to be computed from the commencement of the term of service until the expiration of said twelve hundred days, deducting what may have been previously advanced and paid to the said party of the first part or to his use for clothing, diet, lodging or otherwise. If at the end of six months his work is not satisfactory, said J. P. Whitney shall have privilege of laying off said Morris Robeson. Saturday will not count as lost

time."

The case turns upon the construction of this contract. The defendant insists that, by the true reading of the contract, the plaintiff must have actually performed work for the defendant upon 1200 days to complete the services contracted for; while the plaintiff contends that the agreement means that he must serve the defendant for a term or period included in which there are 1200 actual working days. The latter view was taken by the trial court, who thereupon gave the jury binding instructions. The proof on the part of the plaintiff was that he had served under the agreement from January 24, 1902, to February 2, 1907, which period includes 1282 actual working days after a deduction for holidays and for the months of July and August in each year (which are not working days in the glass trade), but not deducting Saturdays. It was also in proof that the plaintiff did not work on each one of the above 1282 days, being prevented sometimes by sickness, but for which no certificate of a physician was asked or demanded, and being also prevented from working on some of those days because of the closing down of a portion of the plant of the defendant, and at other times for lack of work, or for other causes. The phrase "twelve hundred actual working days" in the contract must be deemed to be a term or period. This number of days is referred to throughout the contract as constituting a term. Effect must also be given to the word "actual," but in my opinion that will not alter the above interpretation. As before said, it was proved that July and August by the custom of the glass trade were not days upon which employés performed work, and hence not actual working days in this trade. As popularly understood, working days, a familiar and well understood expression, are all the days of the years except Sundays and holidays. This contract must be construed by the known usage of the trade existing when the contract was made. Hence the word "actual" limits "working days" to those so known in this trade, as distinguished from "working days" as they are generally understood; i. e., all days except Sundays and holidays. Actual working days, therefore, are not intended to mean days upon which work was actually performed by the plaintiff, but days

trade as distinguished from those when it is not ordinarily done; i. e., Sundays and holidays and the months of July and August.

The contract further specified that "Saturdays will not count as lost time." Does this sentence have the effect of changing the above construction of the contract? I think not; but rather to confirm it. If the agreement is construed to mean actual days work, then this is superfluous for the length of service in that event must be determined by the actual number of days upon which the apprentice shall have worked, and it can make no difference whether Sundays are counted as lost time or not. If read, however, as above construed, then the phrase is pertinent. Saturday is a half holiday in virtue of the amendment to "An act in relation to days of recreation and holidays, and fixing the days and parts of days so to be set apart and observed, and regulating the maturity of commercial paper with respect thereto" (P. L. 1895, p. 779), and therefore has a somewhat uncertain meaning as applied to working days. It is thus made clear that the half holiday "will not count" against the apprentice by making him lose time, that Saturdays shall not be counted as nonworking days, and shall not tend to extend the term and postpone the date of his emancipation.

The indenture, therefore, means that the service shall continue through a term or period within which there are 1200 days, exclusive of Sundays and holidays and all days of July and August in each year; the custom of the trade being not to work during these months. This is also the reasonable view. The arrangement at the beginning contemplated a term, the duration of which could be definitely foreseen and the end accurately ascertained.

The contract was properly construed by the trial court. The amount due to the plaintiff, if he was entitled to recover at all, having been agreed upon between the parties, and the judgment entered for the amount so determined, makes it unnecessary to consider the other assignments of error. The judgment is affirmed.

(76 N. J. L. 505)

DIRIGOLANO v. JERSEY CITY, H. & P. ST. RY. CO.

(Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

STREET RAILROADS (§ 117*)-TRIAL (§ 178*)— INJURY TO CHILD-QUESTIONS FOR JURYDIRECTING Verdict.

In an action for damages for personal injuries, the case constituted by the testimony most favorable to the plaintiff was that the plaintiff, a child five years of age, while running at dusk across a city street alongside of which he had been playing with a number of other children, fell on the trolley track, and

before he could get up was run over by a trolley car that was being driven at a rate of speed characterized in the testimony as "running very, very fast," and as "an awful rate of speed," "not stopping at all" (at intersecting streets). Held: (1) That, on a motion for a nonsuit or for the direction of a verdict, the question whether the rate of speed at which a car was being driven was consistent with the exercise of due care and circumspection by the motorman, and whether the failure to exercise reasonable care under the circumstances occasioned the injury to the plaintiff, were for the jury, and not for the trial court.

(2) That the question presented by a motion to nonsuit or to direct a verdict is not whether the trial judge would infer that the defendant had been negligent, but whether the jury might legitimately find from the testimony that such negligence had been established.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 251, 253; Dec. Dig. § 117;* Trial, Dec. Dig. § 178.*]

Gummere, C. J., and Bergen, Voorhees, Minturn, Vredenburgh, and Dill, JJ., dissenting. (Syllabus by the Court.)

Error to Circuit Court, Hudson County.. Action by Joseph Dirigolano against the Jersey City, Hoboken & Paterson Street Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William D. Edwards, for plaintiff in error. John J. Fallon, for defendant in error.

GARRISON, J. The plaintiff brought his action in the court below to recover damages for injuries received by his being run over by the defendant's trolley car. The case went to the jury, upon whose verdict the judgment brought up by this writ of error was entered against the defendant, whose contention in this court is that the case should not have gone to the jury, but that the trial court upon the motion to nonsuit or upon the motion to direct a verdict should have resolved the issues on which liability depended favorably to the defendant.

Upon this review of the trial in its strictly legal aspects, the two motions may be considered together as they were substantially to the same effect, namely, that no negligence on the part of the company had been shown, and that the accident was an unforeseen and unavoidable one which "no amount of diligence" and "no human skill could have prevented." The question presented, therefore, is whether the trial court in denying these motions upon the grounds stated committed legal error. In ruling upon these motions the trial court was required, not only to consider such alone of the testimony as was favorable to the plaintiff, but also to consider such testimony in the light of the most favorable inferences of which such testimony was legitimately susceptible. The plaintiff's case as thus constituted was that on September 14, 1906, at about 7 o'clock in the evening, a number of children who were

71 A.-17