(115 A.) fendant in Hague v. Hague, 85 N. J. Eq. 537, [and the first point made and argued in the 96 Atl. 579, wherein the Court of Appeals defendant's brief is that "the verdict is conreversed this court and ordered a decree. The petitioner is entitled to a decree. (96 N. J. Law, 409) HAUCKE v. BECKMAN. (Supreme Court of New Jersey. Dec. 27, 1921.) 1. Damages 184 - Jury held warranted in finding such reckless disregard of plaintiff's rights by driving automobile as justified punitive damages. Evidence that an automobile which knocked plaintiff down and injured her was running at a speed of 40 to 50 miles an hour around a curve in the road, and that, after knocking plaintiff down, it continued at the same rate of speed until forced to stop because the road was blocked by a wagon, warranted the jury in finding such a wanton and reckless disregard of plaintiff's rights on the part of the driver authorized an award of punitive dam as ages. 2. Damages 132 (8)-Verdict of $5,000 for injuries to fingers and other bruises held excessive, and to be reduced to $3,000. Where a stenographer earning $30 a week, who was knocked down by an automobile, the wheel of which passed over her right hand, sustained a partial permanent injury to two of the fingers, and suffered other painful bruises, and was unable to work for 10 weeks, and her injuries to some extent interfered with her playing the violin, but after such 10 weeks she returned to her former employment at the same salary, an award of $5,000 as compensatory damages was excessive, and should be reduced to $3,000. trary to the law as charged by the court upon the question of punitive damages." The facts developed at the trial showed that the plaintiff, a stenographer in the employ of the United Transportation Company, earning $30 per week, while standing upon private property, abutting a public highway, at Mountain View, was knocked down by an automobile driven by the defendant, the rear wheel of the car running over her right hand, inflicting partial permanent injuries to several of her fingers, and painful bruises upon her body. There was testimony to the effect that the car was being propelled at a rate of speed estimated at from 40 to 50 miles an hour while rounding a curve in the road near the property where the plaintiff was standing, and, after having knocked the plaintiff down, the defendant made no effort to stop his car, but continued to go on with the car at the same rate of speed, until he was forced to stop on the road because of its being blocked by a hay wagon, and it was then that he was caught and put under arrest. It is conceded in defendant's brief that the charge of the court on the subject of punitive damages was in accordance with the settled law of this state, enunciated in Haines v. Schultz, 50 N. J. Law, 481, 14 Atl. 488, and Trainer v. Wolff, 58 N. J. Law, 381, 33 Atl. 1051. The trial judge instructed the jury, as follows: "And if you find the defendant maliciously and intentionally ran into the plaintiff, or that the accident was caused by a wanton and reckless disregard of the plaintiff's rights, then you may add to the amount that you find will Action by Mattie Haucke against Arnold compensate her an additional sum by way of Beckman. On defendant's rule to show cause why new trial should not be granted. New trial denied on conditions. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Heine, Bostwick & Bradner, of Newark (John W. Bostwick, Jr., of Newark, on the brief), for the rule. King & Vogt and Elmer King, all of Morristown (Harold A. Price, of Morristown, of counsel), opposed. KALISCH, J. The plaintiff was awarded a verdict in the Morris county circuit against the defendant, for damages on account of injuries sustained by her to her right hand, in the sum of $6,000, $5,000 of which was as compensatory damage, and the balance of $1,000 as punitive damages. The defendant obtained a rule to show cause why a new trial should not be granted, exemplary damages for such malicious conduct, or reckless or wanton conduct on his part." [1] We think that the testimony as to the conduct of and the excessive speed at which the defendant operated and drove his car along a public road was amply sufficient to warrant a jury in finding that he exhibited such a wanton and reckless disregard of the plaintiff's rights as to stamp his conduct as willful and intentional. Next, it is argued the award of $5,000 as compensatory damages is excessive. [2] We think the verdict is excessive. The testimony tends to show partial permanent injury to two fingers of the plaintiff's right hand. She suffered painful bruises upon her hand and body. She was earning $30 per week at the time of her injury, and was by reason thereof unable to resume her vocation for a period of 10 weeks. She has musical talent and plays on the violin. There was testimony to the effect that the condition of her injured fingers is such that it will interfere to some extent with her play-of their lives an insurance policy and ening that musical instrument. dowment bond of $5,000, payable to the insur As has been said, she was out of employ-ed if he or she survived 20 years, or to the ment, as a result of her injuries, for 10 survivor if the insured died within that periweeks, but she went back to her former em- od. The annual premiums, except the first, ployment of stenographer, and is receiving were paid by Mrs. Gifford to and including the same wages-$30 per week-as thereto 1909. They separated in 1908, and in 1913 fore. were divorced on her complaint for desertion. Mrs. Gifford collected the cash surrender value of the policy on her life soon after the separation (her husband releasing), and, the endowment on Mr. Gifford's policy having matured, the insurance company was about to pay it to him, when Mrs. Gifford filed this bill, claiming a lien for the premiums she had paid. An injunction issued and the Prudential, by leave, paid the money, $4,610, into court. We have concluded that, if the plaintiff will agree to accept, in addition to the $1,000 allowed her for punitive damages, the sum of $3,000 for compensatory damages, the verdict may stand for $4,000; otherwise the rule to show cause will be made absolute. / (93 N. J. Eq. 299) GIFFORD v. GIFFORD et al. (No. 49/253.) (Court of Chancery of New Jersey. Nov. 17, 1921.) [1] The gravamen of the bill is that the premiums were paid by Mrs. Gifford upon agreement with her husband that she was to hold the policy as security. The answer sets 1. Insurance 585 (6)-Party paying premi-up that the payments of the premiums were ums without agreement with insured acquires voluntary and a gift from the wife to the no lien on fund. A wife who paid premiums on an endowment policy on her husband's life, naming her as beneficiary, but providing for payment to the husband if he survived the endowment period, without any expectation that they would be paid, and with no intention as to keeping or holding the policy as security, acquired no lien on the fund from the mere payment of the premiums. 2. Insurance ~585(6) Wife's payment of premiums on policy on husband's life in nature of gifts. husband. I granted the ad interim injunction upon Mrs. Gifford's unqualified averment that the policy had been pledged to her, but at the hearing she seemed not to realize that she had so deposed, and I feel she did not intend to. Her affidavit was her counsel's conception of her rights, rather than her own. The proofs fail utterly to sustain the allegations of the bill. The evidence shows clearly-in fact Mrs. Gifford admits-that she paid the premiums without any expectation that they would be repaid, either by her husband or out of the fund, and says that she never entertained the idea that she held or kept the policy as security. The mere fact that she paid the premiums does not give her a right to a lien. It is well established that one paying premiums on an 3. Insurance 585 (6)-Gifts to husband by insurance policy acquires no lien on the fund way of payment of insurance premiums not unless it is agreed with the beneficiary that set aside because of desertion and divorce. he should have one. 2 Joyce on Insurance, Where a wife paid the premiums on an in-§ 1148; Clack v. Holland, 19 Bevan, 262; surance policy on her husband's life without Leslie v. French, 23 Ch. D. 552. any agreement for repayment or a lien, the validity of the gifts were not affected, and they could not be set aside because of the husband's subsequent willful and obstinate desertion of his wife, for which the wife obtained divorce. A wife's payment of the premiums on an endowment policy on her husband's life, naming her as beneficiary, but providing for payment to the husband if he survived the endowment period, when made without any agreement for repayment or a lien, were in the nature of gifts to the husband from the wife. Suit by Isabell Ball Gifford against George Ernst Gifford and another. On final hearing. Bill dismissed. I have looked beyond the single issue raised by the pleadings-i. e., that the complainant's rights were contractual-to see whether Mrs. Gifford could not have back her money on other grounds, for it would seem but equitable that, having sown the fund, she ought to get back her seed. But my examination of the authorities satisfies me that complainant's alleged ground for relief-pledge -was the only one she could stand on, and in this she has failed. There are exceptions Horace C. Grice, of Newark, for complain- ant. ants. BACKES, V. C. Shortly after Mr. and Mrs. Gifford were married, in 1900, the Prudential Insurance Company issued upon each a pledgee of the policy, who pays the premiums to protect his security, is entitled to be reimbursed out of the fund. Leslie v. French, supra. So a joint beneficiary who pays the premium to preserve his interest (115 A.) may call upon his cobeneficiary for contri- render of his interest in the policy on her bution out of the fund. Stockwell v. Mutual life, which he did, and wherein she said, Life Ins. Co., 140 Cal. 198, 73 Pac. 833, 98“What I want is my policy in my name," and Am. St. Rep. 25; McKenell v. Gowans, 2 L. that she would like "full sway over my own," R. Ch. (1912) 648. It has been held that a and in a conversation about that time, as person paying the premiums at the request of Mr. Gifford relates it-and it is not denieda beneficiary, whose interest in the policy in which he asked her for a like renunciation lapsed by her death before the insured, was of her interest in the policy on his life, which entitled to be repaid out of the fund as she refused, for the reason that, in the event against the ultimate beneficiaries. Morgan of his death before the 20 years were up, his v. Mutual Benefit Ins. Co., 132 App. Div. 455, relatives would get the insurance, although 116 N. Y. Supp. 989. And, where premiums she expressed herself as perfectly willing or assessments were paid by one under the that he should have the endowment-to my mistaken idea that he was a beneficiary, mind a plain recognition of the gift of the equity has ordered that he be reimbursed. | premiums. Tepper v. Royal Arcanum, 59 N. J. Eq. 321, [3] The validity of the gifts are unaffected 45 Atl. 111. But not where the premiums by Mr. Gifford's subsequent willful and obwere paid by a nominated beneficiary, who stinate desertion of his wife and the divorce knew that he could be deposed, as in Spengler that followed. Subsequent adultery, deserv. Spengler, 65 N. J. Eq. 176, 55 Atl. 285. tion, or any other marital offense resulting Aside from these and kindred situations I in divorce, afford no ground for setting aside have found no authority for a lien for pre- gifts made to the offender. Lister v. Lister, miums paid, except the right rests in con- 35 N. J. Eq. 49, affirmed 37 N. J. Eq. 331; tract. And this holds true as between hus- Dunbar v. Dunbar, 2 L. R. Ch. (1909) 639; band and wife. Leslie v. French, supra. Converse v. Converse, 9 Rich. Eq. (S. C.) 535; Mrs. Gifford does not come within the cate- Chase v. Phillips, 153 Mass. 17, 26 N. E. 136. gory of the exceptional situations. She paid See note to Thomas v. Thomas, 35 L. R. A. the premiums knowing her own legal rights (N. S.) 124. and those of her husband under the policy, viz. if he were to die within 20 years she would benefit, and if he survived he would take. She had no misconception as to her status, and consequently is not entitled to a lien on that score. Spengler v. Spengler, supra. I have considered whether an equity exists in favor of Mrs. Gifford on the principle enunciated by Vice Chancellor Van Fleet in Black v. Black, 30 N. J. Eq. 215, to the effect that a wife's expenditures upon her husband's estate-their home-are gifts, but that she is entitled to recover them if he there[2] The payments of the premiums were after, without justifiable cause, casts her out. in the nature of gifts to the husband from There the wife spent her money in the conthe wife. Mrs. Gifford is a woman of wealth. fidence of reaping conjugal happiness and Mr. Gifford earned a modest salary. The comfort in the home she had embellished, indications are that they lived in a style be- and her disappointment, unlawfully brought coming her means-he contributing towards about by her husband's conduct, was a fraud. the family expenditures according to his abil- In the present case there were no such conity, she supplying the deficiency. He sug-siderations. The endowment was to Mr. Gifgested the mutual insurance; she agreed to ford outright. Mrs. Gifford was not to share pay the premiums. Although she half-heart-in it, except, perhaps, incidentally as a wife, edly denied the understanding, the evidence and then only according to her husband's inleaves no doubt as to the understanding of clination. the parties, and indeed, all during the time they lived together in harmony, Mrs. Gifford paid the premiums, and, apparently, voluntarily and in accordance with the arrangement. She stopped only because they parted company. Now, had Mrs. Gifford carried on-and I have no doubt she would have had they continued together-could it then have been sincerely ventured that the premiums were not gifts, and that the husband was not entitled outright to the endowment? There were no strings to the gifts of the premiums. Each was complete and absolute when made, and irrevocable. That the pay- This statement is misleading. The decree ments were regarded by Mrs. Gifford as do- below denied Mrs. Black equitable relief for native is to be found in her letter to her hus- the moneys she had expended upon her husband written shortly after they separated, in band's estate because of her misconduct, but The bill will be dismissed, with costs, and the money paid into court will be ordered paid to the defendant. NOTE.-Black v. Black was taken to the Court of Appeals, and the judgment of that court is reported in 31 N. J. Eq. 798 as fol lows: "No written opinion was delivered. The decree of the Vice Chancellor, 3 Stew. 215, was reversed excepting as to the amount due on the $1,000 note." 2. Constitutional law 148 Landlord and tenant 116(5)-Statute increasing length of notice to terminate tenancy does not impair obligation of contract. P. L. 1920, p. 1071, requiring three months', instead of one month's, notice to terminate a tenancy from month to month, does not impair the obligation of the contract as applied to a tenancy from month to month commencing in 1918, and continuing to and including October, 1920, and which the landlord attempted to terminate by notice given October 30, 1920, since each month is a separate contract, and the law was in force when the tenancy for October began. Certiorari to District Court of Elizabeth. Summary proceeding by Charles S. Stein against Alexander Porter. On certiorari before trial to the district court. Proceedings set aside. Argued February Term, 1921, before SWAYZE, PARKER, and BLACK, JJ. Kellogg & Chance, of Jersey City, for prosecutor. Frank K. Sauer, of Elizabeth, for landlord. in its origin, by express agreement, and we see no reason to doubt that it remained a tenancy from month to month, in spite of the subsequent increase of rent. The question, therefore, is whether there is anything in such a statute forbidden by the state Constitution. The conflict relied upon between the statute and the Constitution is that the statute impairs the obligation of a contract or deprives the landlord of his remedy, for the reason that, at the making of the contract, only one month's notice was necessary to end the term, and the statute undertakes to make three months' notice necessary. This argument rests on a misapprehension of the contract of letting. It asof 1918; in fact it is under the contract of sumes that the letting is under the contract October, 1920. The contract being from month to month, each month was a separate contract. Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214; Condon v. Barr, 47 N. J. Law, 113, 54 Am. Rep. 121; Shaw v. Schietinger, 51 N. J. Law, 152, 16 Atl. 186. The tenancy for October, 1920, began with the first day of that month. At that time chapter 357 of the Laws of 1920 was the law of the state, and the tenancy existed subject to the statute in force when it began, and that statute required a three months' notice. The affidavit of the landlord shows a notice on October 30th to deliver possession on December 1st. This does not comply with the statute, and there was no jurisdiction in the district court to entertain the proceeding. It should be set aside, with costs. (93 N. J. Eq. 270) HAMPTON v. NEWKIRK et al, (Court of Chancery of New Jersey. Oct. 31, Wills 597 (2)-Separate paragraph limiting estate in event of devisee's death without issue not limited to gift in last preceding paragraph. A separate paragraph of a will limiting estate devised in event of devisee's death without issue, was effective not only as to the gift in the last preceding paragraph, but extended to a devise in an earlier paragraph. SWAYZE, J. This is a summary proceed-1. ing to dispossess a tenant. It is defended under chapter 357 of the Laws of 1920. The question is whether the act is applicable, and, if applicable, whether it is constitutional. The case was removed before trial, and the only question, therefore, is whether the record shows jurisdiction. The landlord's affidavit sets forth that the premises were let and rented to Porter from month to month, from the 1st day of December, 1918, for the monthly rent of $40; that on the 1st day of December, 1919, the rent was increased by agreement to $45; that on October 30, 1920, a notice to deliver possession on December 1, 1920, was served, and that Porter holds over and continues in possession. [1, 2] The act applies to all tenancies from month to month. This was such a tenancy 2. Wills 602, 603 (3), 634 (8)-Separate devises to son of fee and remainder held limited by gift over if son died without issue at any time. his son and his residence and household goods Where a testator, after giving a house to to his daughter, by a separate paragraph gave one half the residue and remainder to his son in fee simple and the other half to the daughter for life, and at her death to the son in fee simple, and provided in the following paragraph (115 A.) that, "should my son die without leaving law-| Leon Hampton, Emma M. Hampton, and ful issue, then bequests and devises in his favor the several persons named in the seventh should go to" others, the limitation applied to paragraph of the will survived testator. the several gifts to the son, including the re mainder in the event of his death at any time, though after deaths of testator and life tenant. 3. Wills 602, 603 (3)-Devise without words of inheritance within statute obviating necessity of such words not inconsistent with later paragraph creating determinable fee. One paragraph of a will devising property to testator's son without words of inheritance, though within the statute of wills (4 Comp. St. 1910, p. 5873, § 36), removing the necessity of words of inheritance to create a fee, was not inconsistent with the creation of a determinable fee by a later paragraph of the will that, "should my son die without leaving lawful issue, then the bequests and devises made herein in his favor shall go to my sister." 4. Wills 602, 603 (3)-Executory devise on death of prior devisee without issue held not invalid as a limitation over on an indefinite failure of issue. A devise to testator's son with a limitation over should the son die without leaving lawful issue was not invalid as a limitation over on an indefinite failure of issue, as the common-law rule that the words "without issue" import an indefinite failure of issue has been changed by 4 Comp. St. 1910, p. 5870, § 27. Bill for construction of a will by Leon Hampton and Omar H. Newkirk and others. Decree advised in accordance with opinion. The bill which has been filed herein is for the construction of the will of John Hampton, deceased. All parties in interest have been made defendants and have joined in the prayer of the bill for a construction of the will. It is contended on behalf of Leon Hampton, complainant herein, that the provisions of the will above quoted vested in him at the death of testator an indefeasible estate in fee simple in the Stokes House, referred to in the fourth paragraph of the will, and also bestowed upon him a like estate in the undivided half of the residue of testator's property, real and personal, referred to in the sixth paragraph of the will, and also an indefeasible vested remainder in the other undivided half of the residue referred to in that paragraph. A. H. Swackhamer, of Woodbury, for complainant. Jos. J. Summerill, of Woodbury, for defendants. LEAMING, V. C. (after stating the facts as above). [1] Complainant first contends that the provisions of the seventh paragraph relate only to the residuary estate referred to in the preceding paragraph, and have no reference to the Stokes property referred to in the fourth paragraph. This contention cannot be sustained. The seventh paragraph of the will stands alone as an independent provision of the will and is given an independent number segregating it from the preceding paragraph; nor is there anything found in any part of the will to justify a conclusion or intent upon the part of testator to limit the operations of the provisions of the seventh paragraph in the manner suggested by complainant. [2] Complainant further contends that the The material provisions of the will are as contingency of death of complainant without follows: "Fourth. I give and bequeath unto my son Leon Hampton, the Stokes House and lot situated on Broad street Woodbury, N. J., north of the Presbyterian church. "Fifth. I give and bequeath unto my daughter Emma M. Hampton, the house where I, live which is a double dwelling situated on the northerly side of High street in the city of Woodbury, and all of my household goods that I may die possessed of. "Sixth. Of all the rest residue and remainder of my estate, real and personal, I give bequeath and devise the one equal undivided half part unto my son Leon Hampton in fee simple, and the other one equal undivided half part unto my daughter Emma M. Hampton for and during her natural life and at her death to my son Leon Hampton in fee simple. "Seventh. Should my son Leon Hampton die without leaving lawful issue, then the bequests and devises herein made in his favor shall go to the children of my sister Eliza Newkirk, viz. Anna E. Elwell, Omar H. Newkirk, Adaline Fortiner, Elton J. Newkirk and Euphemia Newkirk, and my grandson Burtsell, per capita in equal shares." leaving lawful issue, referred to in the seventh paragraph of the will, must be understood to refer to the event of his death without lawful issue before the death of testator. In this contention complainant relies upon Burdge v. Walling, 45 N. J. Eq. 10, 16 Atl. 51, which case may be said to give support to that contention. But Burdge v. Walling cannot be regarded as a controlling authority to that effect. The more logical and the accepted view in this state at this time is that, where land is devised to a person in fee, and a subsequent clause in the will limits such land over to a designated person or persons in case of the death of the first taker without issue, and there is no other event expressed in the will to which the limitation over can be fairly referred, the event of death without issue will be understood to refer to the death of the first taker at any time, and not to his death before the death of testator, and in such devise the first taker enjoys at the death of testator a vested fee, which becomes divested at his death without issue and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |