Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

(93 N. J. Eq. 491) (No. 47/466.)

FRANK V. FRANK. (Court of Chancery of New Jersey. Oct. 24, 1921.)

1. Partnership 53-Evidence held Insufficient to show existence of partnership between brothers.

2. Trusts 89(1)—Evidence held insufficient to show resulting trust.

TRENCHARD, J. The plaintiff below was a driver employed by the United States government to deliver mail. On the way to Evidence held insufficient to establish exthe Jersey City post office he drove his motor istence of a partnership between brothers enmail truck into the ferryhouse of the defend-gaged in the plastering business. ant company at Cortlandt street in New York City, and surrendered his ferry ticket. Whilst waiting there for the boat, he was hit and injured by an appliance of the defendant. He brought this action to recover for such injury. The jury found in his favor, and the defendant company appealed from the consequent judgment.

[1] We are of the opinion that the judgment should not be disturbed. The defendant was a common carrier of passengers, and was bound to use a high degree of care to protect the plaintiff, its passenger, from harm. It was open to the jury to find that the defendant failed to perform that duty, since the plaintiff was hit by the "hook end" of a rope (used to draw trucks off the boat), which the evidence tended to show flew off

of the electric power "winch" by reason of the careless operation and insufficient manning of the appliance. The question of the negligence of the defendant was therefore properly submitted to the jury. Peters v. Phila. & Camden Ferry Co., 77 N. J. Law,

540, 72 Atl. 106.

[2] But the defendant also maintains that a nonsuit should have been granted or a

verdict directed for the defendant because

brother who in his own name purchased lots Evidence held insufficient to prove that a and executed mortgages for money with which to construct buildings purchased the property jointly for himself and a brother.

Suit to declare a partnership and an accounting by Moe Frank against Louis Frank. Decree of dismissal.

Aaron A. Melniker, of Jersey City, for complainant.

Dembe & Dembe, of Bayonne, for defendant.

GRIFFIN, V. C. The purpose of this suit is to declare the existence of a partnership

between two brothers, Moe and Louis Frank, and to have it declared that certain lands in masons and plasterers, and for an accounting, the city of Bayonne, mentioned in the bill, standing in the name of Louis, are partnership property, or that a resulting trust exists therein in favor of Moe.

I

In 1910 Moe was 19 years of age, and, as recall it, Louis was not quite 21. They were engaged in the plastering business. Moe says that he did the plastering work, and Louis was the master, without a union card, while he (Moe) had one; that Louis, in order to work, was required to have a union card. This statement is somewhat negatived from the fact that Louis in 1914 did work as a journeyman and had permits which cost $5 apiece to work for a period. However, Moe says, he received no wages; that all he received was a couple of dollars a week, and occasionally his clothes, and the money was turned in to his mother for the support of the family, consisting of the father and mother and eleven children, only two of whom were working, namely Moe and Louis. It appears that the father worked very little. Moe also says that the surplus over and above the sum turned in to the mother was to be put in bank in the joint account. The fact is that no moneys in the nature of wages were paid by Louis to Moe from 1910 until around 1914, when Moe became engaged in marriage, and he was then paid his regular weekly wages, out of which he paid his These observations dispose of every ques- board to his mother. From 1910 to 1914 or tion raised and argued..

the plaintiff had dismounted from his truck and was therefore guilty of contributory negligence. Not so. The plaintiff had driven his truck to the usual and customary place in the ferry slip to wait for the boat. It is true that he was injured whilst about to remount his truck, from which he had dismounted for the purpose of examining the extent of the damage, if any, done to his truck by being "bumped" by a team behind. It may be that if he had remained upon the truck he would not have been hit by the flying hook, but that for present purposes is immaterial. His act of dismounting certainly cannot be said as a matter of law to be negligent, since it might well be regarded as the act of a reasonably prudent and careful man in the circumstances; and, moreover, the fact that he left his seat on the truck presented simply a condition which had no causal connection with the negligent operation of the appliance which caused his injury. Griffe v. Delaware River Ferry Co., 91 N. J. Law, 280, 102 Atl. 694.

|

1915 Moe worked for others than his brother, The judgment will be affirmed, with costs. and the brother himself engaged as a journey

(115 A.)
1

man on his own account. The building busi- due to him on this outside work, contributed ness was not very active, and employment towards the cost of Louis' building. was not readily obtainable.

There is some evidence that Louis had made statements that Moe was a partner, and that he would give Moe his share when the buildings were sold. This testimony, after a lapse of several years, is rather vague, and hardly rises to the dignity of proof, when it is considered that Louis entered into possession of the property, handled it as his own, ran all the risks, made all the mortgages, raised all the money to carry the property, during a portion of which time it was not a paying proposition, that he continued to be the owner, without apparently any demand or claim being asserted against him until this bill was filed, or shortly before,

The only circumstance, to my mind, which tends to support the theory of Moe as to the partnership is the fact that he was not paid regular wages, such as an employer would pay a journeyman. But it must be borne in mind that Moe was a younger brother (Louis being about a year and a half to two years his senior), and that it was a family agree ment wherein Louis says he turned in to his mother Moe's money, after paying him $2 or $3 for spending money and buying him clothes. While, as a matter of fact, Louis does not really know how much he turned in, I take it that in all probability, he turned in a sum equivalent or almost equiva-and that, even after Louis was inducted into lent to Moe's earnings, and, in addition to this, turned in a very large portion of his profits and earnings, without undertaking to keep an account of the sums so turned in on the account of either. That there could not have been much saved is apparent from the fact that there were thirteen mouths to feed out of the earnings of these two sons, and work was not at all times plentiful.

In 1910 or 1911 the two lots mentioned in the bill were bought for $1,550. These were bought by Louis and one Koenigsberg, who says that he understood that Louis had bought one half for himself and Moe, and that he (Koenigsberg) bought the other half for himself and his brother, who was his partner, and that for convenience the property was taken in the joint names of himself and Louis, because Moe was then under 21 years of age. The purchase price was paid by giving a mortgage for $1,000, and cash $275 paid by Louis, and $275 in cash and notes paid by Koenigsberg. Subsequently, in 1911, or about a year after the purchase, Louis wanted to build, and his co-owner did not care to do so, and Louis bought his inter est out by giving him the sum he had paid, plus $75 as profit. This purchase price was paid partly in cash, and the balance in notes payable $25 a month.

The building was undertaken, which, according to the figures, cost about $9,000 or thereabouts. When completed, a $7,000 first mortgage was put upon it, and a $1,500 second mortgage, which two mortgages practically represented the entire cost of the two buildings, which were two six-family houses. Moe worked on this property, but was not directly paid wages, his earnings being turned in to his mother, as above stated, for the support of the family.

the army and gave a power of attorney to another brother to collect the rents, Moe, with knowledge of this fact, did not assert his rights as a partner, or claim that he was entitled to take charge of the premises. All these things indicate, to a great extent, that Moe did not understand that he was a partner, or that he had any interest in the premises, and probably would not now assert it were it not for the fact that in June, 1919, he and Louis became estranged and have not spoken since.

[1, 2] The conclusion I have reached is that the proof offered is insufficient to establish either the existence of a partnership between the brothers, or a resulting trust in favor of the complainant in the premises in question. I will advise a decree dismissing the bill.

I. Statutes 184-Object and policy considered in construction.

In ascertaining the meaning of any statute, the circumstances under which the language is used, the evil to be remedied, the object sought to be attained, and the general policy and theory on which the legislation proceeds are material to be considered. 2. Master and servant 346 Compensation Act stated.

Theory of

The theory of the Workmen's Compensation Act is that risk of injury should be borne in the first instance by the employer, and ultimately by the consumer of product of industry; compensation provided being in no sense considered as damages.

There was also work done on a building of a carpenter or plumber by both Moe and Louis, the proceeds of which were credited on a bill against Louis, and the Act liberally construed. balance paid to carpenter or the plumber.

3. Master and servant 348-Compensation

The Workmen's Compensation Act is to Thus Moe, to the extent of what became be construed liberally in order to fully and

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

6. Master and servant

398-Notice of accident sufficient compensation claim.

A sufficient notice of the accident is a sufficient claim for compensation under the Workmen's Compensation Act, § 5.

7. Statutes 239 Acts in derogation of common law not always strictly construed.

No such sanctity attaches to the common law as to require a less liberal construction of an enactment in its derogation, if such enactment be made pursuant to principles which have come to be as universally recognized, and which are equally as essential in the administration of justice, as are common-law principles.

where the claimant, relying upon their assurances, deferred presentation of claim for compensation, the employer is estopped to plead limitation as a defense.

12. Master and servant 385(17) - Deduction for medical treatment given compensation claimant question for trial court.

The provision in Workmen's Compensation Act, § 6, that "in fixing the amount of weekly payment, regard shall be had to any benefit * * received from the employer during the period of his incapacity" only requires the court to weigh the benefit as evidence, and does not require an accounting, and whether due regard for benefits received in the shape of service by employer's physician requires that it should be allowed in fixing the amount of weekly payments is a question of fact for the trial court.

13. Master and servant 398-Compensation computed from date of estoppel.

The provision in Workmen's Compensation Act, § 6(2), providing that no payment shall be due or payable to injured employee for any time prior to the giving of the notice required by section 5, has no application where prejudice in the delay in making notice is not shown, but if the court finds that the want of notice in the statutory sense is prejudicial to the employer, then the question of estoppel to claim prejudice, and when it took effect, becomes material, in which event compensation can be computed only from the time 99-Statutory provision bene- when notice was given, or, what is equivalent, fiting person may be waived. to date when estoppel became effective. Young, J., dissenting.

8. Estoppel

Statutory provisions, enacted for the benefit of individuals, may be so far waived by those for whose benefit they were enacted that they are estopped to insist on their pro

tection.

9. Master and servant 398-Limitation in Compensation Act for employer's benefit.

While the Workmen's Compensation Act may be said to have been enacted for the benefit of the employee, the provision of section 5, limiting the time within which a claim can be made under it, was designed for the benefit of the employer and not the employé.

10. Master and servant 405(1)-Evidence held to show estoppel to claim prejudice from delay in filing compensation claim.

In a proceeding under the Workmen's Compensation Act, evidence held sufficient to sustain a finding that employer was estopped by acts of agent of insurer from claiming prejudice from failure of injured employee to file notice of accident or claim within six months, in view of sweeping character of authority given insurer by policy.

II. Master and servant 398-Estoppel to plead limitation as defense to compensation

claim.

A claimant under the Workmen's Compensation Act may assume that agents of insurer have authority to employ the usual and ordinary means of accomplishing that for which the agency was created, which was the investigation and settlement of claims, and

Bill in equity to determine the amount of compensation due plaintiff under the Workmen's Compensation Act. Trial by the court. Decree for the plaintiff.

The plaintiff was injured, while in the employ of the defendant, on August 8, 1919, The accident arose out of and in the course of the plaintiff's employment, and was not caused in part or in whole by any serious or willful misconduct on her part. No formal notice of the accident was given to the defendant, nor was any claim for compensation made by the plaintiff until March 20, 1920, when the following letter was sent to the defendant by plaintiff's counsel:

"March 20, 1920. Nashua Mfg. Co., Nashua, N. H.-Gentlemen: On Friday, August 8, 1919, Jane Mulhall of 12 Church Street, Nashua, N. H., was injured in the spool room of your mill.

(115 A.)

Your doctors have attended her to date. She The defendant concedes that the plaintiff is still disabled. Your insurance company up is excused for her failure to give it notice to now has delayed adjustment of the matter. of the accident, as required by section 5, Wherefore this paper gives you notice that since the court has found that it was not Miss Mulhall claims compensation for said prejudiced thereby, but contends that plaininjury under the act. Yours truly, Thos. J. tiff's failure to make a claim for compensaLeonard, for Jane Mulhall." tion within six months from the occurrence of the accident is a bar to her recovery. Defendant's position raises the question whether or not it was the legislative intent thus to distinguish between the requirements as to the giving of notice of an accident on the one hand and as to the making of a claim for compensation on the other, by making the former excusable and the latter absolute.

SNOW, J. "No proceedings for compensation under this act shall be maintained unless notice of the accident as hereinafter provided has been given to the employer as "The application of the principles of the soon as practicable after the happening common law to suits for personal injuries thereof, and unless claim for com sustained in hazardous employments resulted pensation has been made within six months in many cases in injustice; * it filled from the occurrence of the accident, the courts with litigation; it became the but no want or defect or inaccuracy of a fruitful source of perjury; it engendered bitnotice shall be a bar to the maintenance of terness between employer and employee; it proceedings unless the employer proves that resulted in * economic waste, and he is prejudiced by such want, defect, or it turned out an army of maimed and helpinaccuracy. Notice of the accident shall less people as dependents upon the charity apprise the employer of the claim for compensation under this article, and shall state the name and address of the workman injured, and the date and place of the accident.

workman has been uncertain, slow and inade

*

The right to compensation arises quate. * Injuries * * former- out of the relation existing between employly occasional have been frequent and inevita-er and employee; * the costs and exble. State v. Clausen, 65 Wash. penses of conducting the business, 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466. including compensation for injuries to em"The terrible economic waste, the overwhelm- ployees, must be taxed to the busiing temptation to the commission of perjury, ness. The theory of the Compensation Act is and the relatively small proportion of the that the whole cost and expense of conducting sums recovered which comes to the injured the business * * * is added to the cost parties in" common-law actions "condemn of the articles that are produced and sold, them as inadequate to meet the and hence, in the long run, such costs and exdifficulty." Borgnis v. Falk Co., 147 Wis. 337, penses are borne by the public." Chandler v. 133 N. W. 215, 37 L. R. A. (N. S.) 489. The Indus. Com., supra; Fassig v. State, 95 Ohio common-law system of dealing with actions St. 232, 116 N. E. 104, 105. "It was the inby employees against employers for personal tention of this act to make the business bear injuries is inconsistent with modern indus- the burden of incidental and accidental intrial conditions, uneconomic, unwise, and un-juries without regard to the question of negfair. Peet v. Mills, 76 Wash. 437, 136 Pac. ligence, either on the part of the employer or 685, L. R. A. 1916A, 358, Ann. Cas. 1915D, the employee. In the long run the public, 154; American Coal Co. v. Allegany County and not the persons immediately involved, Com'rs, supra. "It resulted, it was widely except to the extent that they are members believed, in injustice both to the employer of society at large, pay the bills." Wick v. who was sometimes the victim of unjust or Gunn (Okl.) 169 Pac. 1087, 1089, 4 A. L. R. excessive claims and to the employee who had 107. "The basic principle of the act is that to bear the necessary risks of the business the cost of the injuries incidental to modern and who was often delayed in the enforce- industry should be treated as a part of the ment of a just claim and burdened with the cost of production. The act was framed with expenses of a protracted litigation. The dan- that end in view." Duart v. Simmons (Mass.) ger was ever present that an employee or his 121 N. E. 10, 12; In re Gagnon (Mass.) 117 family might become dependent upon public N. E. 321. "The general purpose of this act support because no relief could be given for undoubtedly is to transfer the burdens reinjuries to employees or for the death result- sulting from industrial accidents, regardless ing from such injuries. This old and unsatis- of who may be at fault, from the individual factory system of negligence law was the evil to the industry, and finally distribute it upon to which the Legislature addressed itself society as a whole, by compelling the induswhen it enacted the Compensation Act." try, in which the accident occurs through the Shanahan v. Monarch Engineering Co., 219 employer, to contribute to the support of N. Y. 469, 477, 114 N. E. 795, 797. those who were actually and lawfully dependent upon the deceased for their sustenance during his lifetime." Scott's Case (Me.) 104 Atl. 794, 797.

The intent of the Workmen's Compensation Act was "to afford its protection to all

[2] Beginning in Germany in 1884, in England in 1897, and in the American states in 1910, legislative bodies have attempted to solve this distinctly modern problem by the substitution of the compensation principle in the place of liability for negligence. The * employers and employees who might theory of the legislation is that the risk of voluntarily choose to make its provision for injury, not due to the willful misconduct of compensation for injury a part of their conthe workman, should be borne in the first tracts of employment. It assumed that acciinstance by the employer and ultimately by dent is incident to employment, and purposed the consumer of the product of the industry. to charge its cost, in the case of every injury This is the practical operation of the stat- not caused by the willful and serious misconutes, whether optional or compulsory, since duct or intoxication of the injured employee, the employer may protect himself by adding to the industry in which it occurred" the premium paid for insurance, and the cost * and to "include it among the items of administering the law, to the overhead charged to operation." Kennerson v. Thames charges of his business as a basis for deter- Towboat Co., 89 Conn. 367, 375, 94 Atl. 372, mining the cost and the price of his product, 376. "Prior to the enactment of the Workthus transferring the burden to the consumer. men's Compensation Act the consequential Western Indemnity Co. v. Pillsbury, 170 Cal. and financial losses to workmen engaged in 686, 151 Pac. 398, 401; Adams v. Iten Biscuit industrial activities were borne by the workCo., 63 Okl. 52, 162 Pac. 938, 940; Chandler men themselves, by their dependents, or by v. Indus. Com., 55 Utah, 213, 184 Pac. 1020, the state at large. The Legislature by the 1021, 8 A. L. R. 930; Deaver v. Napier, 139 passage of this act indicated its belief that Minn. 219, 166 N. W. 187; State v. Clausen, this loss should be borne by the industries 65 Wash. 195, 117 Pac. 1101, 1113, 37 L. R. A. causing them, or more accurately by the con(N. S.) 466. sumers of the products of the industry caus"The compensation provided for in the acting the loss." In re Duncan (Ind App.) 127