(74 N. J. L. 609)

WRIGHT v. CAMPBELL. (Court of Errors and Appeals of New Jersey. May 1, 1907.)

1. COUNTIES-OFFICERS-EXTENSION OF TERM. Act Feb. 15, 1905 (P. L. p. 14), changing the time for the election of officers elected in "towns, townships, boroughs, and other municipalities" to the general election in November, and extending the term of officers "of any town, township, borough, or other municipality" until January 1st, next succeeding the date at which their term would otherwise expire, has no application to the terms of county officers, except those elected by the various municipalities to represent them in the county government, and as to that class the statute operates to extend the term of office of the incumbents until the first day of the ensuing January. 2. SAME-BOARD OF FREEHOLDERS MEETING.

- ANNUAL

Act Feb. 15, 1905 (P. L. p. 14), changing the time of election of officers in "towns, townships, boroughs, and other municipalities" to the general election in November, and extending their terms of office until January 1st, next succeeding the date at which their term would otherwise expire, etc., does not operate to change the date of the annual meeting for 1905 of the board of freeholders, required by Gen. St., p. 410, and General Tax Law (P. L. 1903, p. 409), to be held on the second Wednesday of each May.

Error to Supreme Court.

Quo warranto by the state, on the relation of Wendell J. Wright, against Luther A. Campbell. There was a judgment rendered by the Supreme Court (64 Atl. 171) in favor of relator, and respondent brings error. Affirmed.

Peter W. Stagg, for plaintiff in error. Wendell J. Wright, pro se.

GUMMERE, C. J. This controversy involves the right to the office of attorney of the board of freeholders of the county of Bergen. Wright, the relator in the court below, claims title by virtue of an election to the office by the board of freeholders at a meeting of that body held on the second Wednesday of May, 1905. Campbell claims title by virtue of an election held by the board on the 1st day of January, 1906. The incumbent of the office prior to the election of Wright was Mr. Koester, who was elected on the second Wednesday of May, 1903. By force of section 87, p. 423, Gen. St., of the act creating boards of freeholders, his term of office was two years, and, unless extended by subsequent legislation, expired upon the day upon which Wright was elected. It is contended, however, on behalf of Campbell, that Mr. Koester's term was extended until the first day of the following January, by force of the third section of the act of February 15, 1905, entitled "An act relative to the time of election and appointment and terms of office of officers elected or appointed in towns, townships, boroughs and other municipalities in this state." P. L. p. 14. The section referred to provides that: "Every officer heretofore appointed, or chosen by the township committee, mayor, or other governing body

of any town, township, borough or other municipality, and holding office therein at the passage of this act shall continue in office, and his term of office shall be and hereby is extended from the time when his term would otherwise expire, until twelve o'clock noon of the first day of January next succeeding the date at which his term of office would otherwise expire."

We do not consider that this statutory provision has the scope contended for. Prior to the year 1901 municipal or charter elections throughout the state were held on days other than on which the general, or state, election was held. In 1901 the Legislature, conceiving it to be desirable that the municipal or charter election should be consolidated with the general or state election in the various cities of the state, passed a law providing that thereafter in all the cities of the state all officers required to be elected therein at any municipal or charter election should be voted for and elected on the first Tuesday after the first Monday of November in each year, and upon the same official ballots required by law for the election of state and county officers. P. L. 1901, p. 41. This change of the date of the municipal or charter election in cities from the spring (ordinarily) until the fall made it necessary to alter the date upon which the terms of office of the various officers elected or appointed for such municipalities should commence; and the time was fixed by the statute as "the 1st day of January next succeeding their election." In order that the change in the date of the charter election should not operate to suspend municipal functions in the various cities of the state the act provided (in section 2) that the term of every officer theretofore elected in any city and holding office at the time of the passage of the act should be extended from the time when his term would otherwise expire to the 1st day of January next eusuing, and further provided (in section 3) for a like extension of the terms of officers who were appointed by the mayor or by the common council of the city. From 1901 to 1905 the charter or municipal election in cities was held on the same day as the general election for county and state officers, while in the municipalities of lower rank the charter election continued to be held in the spring. In the latter year the Legislature passed the statute to which Mr. Campbell appeals in support of his contention that Mr. Koester's term had not expired at the time of Mr. Wright's election. That statute is an exact transcript of the act of 1901, except that wherever the word "city," or its plural, ap pears in the earlier statute, the words "town, township, borough and other municipality," or their plurals, are substituted in the latter act. The legislative purpose sought to be accomplished by this latter enactment is too clear to be mistaken. It was to completely abolish "spring" elections throughout the state, to consolidate all municipal or charter

elections with the general November election for state and county officers. The object of the second and third sections of the act of 1905 is identical with that which induced the insertion of the same section in the act of 1901, namely, to prevent the change in the date of the charter election in the various municipalities affected by the statute from disarranging or suspending the functions of those municipalities. It is hardly necessary to add that, as a county is not one of the political divisions of the state which hold municipal or charter elections, the third section of the act of 1905 has no application to the terms of county officers, with the single exception of those who are elected by the various municipalities, specified in the statute, to represent them in the county government. As to that class, the section operates to extend the term of office of the then incumbents until the first day of the ensuing January, and to change the date of the commencement of the term of those thereafter elected from the second Wednesday of May to the first Monday of January.

It is further contended on behalf of Mr. Campbell that the election of Mr. Wright | was a nullity, because the meeting of the board of freeholders on the second Wednesday of May, 1905, at which he was chosen, was not the annual stated meeting of the board, and was held without legal authority. The sixth section of the act to incorporate chosen freeholders (Gen. St. p. 410) requires the annual stated meeting of the board to be held on the second Wednesday of each May, and the meeting at which Mr. Wright was elected was held pursuant to that enactment. The contention on behalf of Mr. Campbell is that this section was repealed by the act of 1905, above referred to, and the date of the annual meeting changed to the 1st day of January. The statute appealed to contains no reference to boards of freeholders, or their meetings; but the argument is that, as the commencement of the terms of members of the board of freeholders, elected to represent the various municipalities mentioned in the statute, has been changed by its provisions from the second Wednesday of May to the 1st day of January, the time of organization is necessarily changed to the latter date, and that as organization must take place at the annual meeting the statute, by necessary implication, has substituted January 1st as the date of the annual meeting. It is to be observed that the act of 1905 did not change the time of the commencement of the term of all members of boards of freeholders, for the act of 1901, which consolidated the muInicipal with the general election in the various cities of the state, had already changed the time of the commencement of the term of those members of boards of chosen freeholders who were elected from that class of municipalities. The act of 1901, although it created diversity in the commencement of the terms of members of these boards, pre

sented no obstacle to annual organization on the day previously designated by the Legislature, namely, the second Wednesday of May, and it is not at all clear to us that the act of 1905 has any such effect. But even if the soundness of the contention made on behalf of Mr. Campbell be conceded, the date of the annual meeting for the year 1905 manifestly was not changed to the 1st day of January, for the 1st day of January of that year had already gone by six weeks before the passage of the act. Clearly, if the statute did change the date of the annual meetings of the boards of freeholders, it did not become effective for that purpose until after the first election provided for by it was held, for until after that election no change whatever took place in the commencement of the terms of any of the members, and it is this change which, it is said, by necessary implication, alters the date of the annual meeting.

It was suggested upon the argument that, although the statute could not operate to change the date of the annual meeting of 1905 to the 1st day of January of that year, its effect was to abolish that meeting for that particular year. No reason was stated by counsel why such a result followed from the enactment of the statute of 1905, nor are we able to perceive any. The legislative scheme contains no purpose which required the abolition of that particular meeting, and, this being so, the fact that, by the fourth section of the act incorporating chosen freeholders (Gen. St. p. 410), and the 24th section of the general tax law (P. L. 1903, p. 409), the annual stated meeting of the board of freeholders is primarily designated as the one at which the financial budget of the county shall be made up for the ensuing year, and that no provision is made by the act of 1905 for the performance of that important work at any other time is itself enough to negative the idea of any such legislative intent. We concur in the conclusion expressed by the Supreme Court in Van Emburg v. Trall (N. J. Sup.) 64 Atl. 173, in which a similar contention was made, that the act of 1905 did not operate to abolish the annual meetings of boards of freeholders for that year.

The judgment of the Supreme Court should be affirmed.

Appeals (63 Atl. 614), after which certain orders were filed amending the decree of the Prerogative Court, which petitioner applies to vacate. Application granted.

George H. Pierce and Gilbert Collins, for the motion. Nelson B. Gaskill, opposed.

PER CURIAM. The decree affirming the decree of the Prerogative Court, and remitting the record, was entered on the 20th of April, 1906. Subsequently, and on the 18th of December, an order was filed with the clerk of the court which substantially amended the decree as originally entered. On the 9th of January, 1907, another order was filed with the clerk still further amending the decree. Neither of these amending orders were directed by the court, but were prepared and filed by counsel without leave of the court be ing applied for, and without the knowledge of the court. After a remittitur has once been entered upon the minutes it is not subject to substantial alteration or amendment, except by the order of the court.

The amending orders, having each of them been filed without our authority, will be struck out and annulled, and the bills of costs which have been taxed thereon will be set aside.

(75 N. J. L. 240)

BENNETT v. BUSCH. (Supreme Court of New Jersey. July 16, 1907.) 1. MASTER AND SERVANT TORTS OF SERVANT -LIABILITY OF MASTER.

The defendant, while on a business trip in an automobile, made his headquarters at a hotel; the automobile being kept in a garage several blocks away. On the evening of the accident, on arriving at the hotel, the defendant, after telling his chauffeur that he was going out in the machine that night, directed him to go downstairs in the hotel and get oil. Instead of obeying this instruction literally, the chauffeur drove the automobile to the garage for the oil, and while on his way there the collision occurred. Held, that whether the chauffeur was acting within the general scope of his authority was properly submitted to the jury, although in this particular instance the use of the machine was in disobedience of the literal instruction of the master.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1275.]

2. TRIAL-QUESTIONS FOR JURY.

Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 337, 338.]

3. NEW TRIAL-CONFLICTING EVIDENCE.

In a conflict of testimony, when the facts found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 144.]

(Syllabus by the Court.)

Action by Reginald S. Bennett against Alfred Busch. Verdict for plaintiff. Rule to show cause. Discharged.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ. Edmund Wilson, for plaintiff. Lindabury, Depue & Faulks, for defendant.

TRENCHARD, J. This action was brought by the plaintiff, Reginald S. Bennett, against the defendant, Alfred Busch, to recover compensation for personal injuries sustained by the plaintiff and damage done to his horse and carriage in a collision which occurred be tween the plaintiff's carriage and an automobile alleged to have been in the control of a servant of the defendant. The trial resulted in a verdict in favor of the plaintiff for $1,292.

The defendant was allowed a rule to show cause why this verdict should not be set aside and a new trial granted. The collision which gave rise to the suit occurred at Asbury Park in this state on the evening of June 29, 1905. The defendant was not in the automobile at the time of the collision, but it is contended by the plaintiff that the person operating it was the servant of the defendant, for whose negligence the latter is responsible. It is conceded by the defendant that the jury was warranted in finding that the collision resulted because of the negligence of the driver of the automobile; but it is insisted that the defendant is not liable for that negligence, and that the trial judge should have directed a verdict for him for the reasons, among others: First, that defendant was not the owner of the automobile, and the driver thereof was not his servant; and, second, that assuming the driver to have been the servant of the defendant, the latter is not liable be cause the driver had not been intrusted with the operation of the automobile on the occasion when the collision occurred and was not acting within the scope of his employment.

We think the motion for a direction of a verdict for the defendant was properly denied for these reasons:

First. The evidence as to the ownership of the automobile and as to the relationship of master and servant between the defendant and the driver was conflicting. On behalf of the plaintiff, there was evidence tending to show that the defendant was the owner of the machine, and that the driver was his servant. There was evidence of a conversation between the plaintiff and the defendant immediately after the accident, and while talking about a settlement, in which the defendant said: "My machine is injured prob ably quite as much as your wagon." And the plaintiff replied: "Then this is your machine, and this man was running it for you when this accident occurred?" To this the defendant auswered: "Yes." There was also in evidence declarations of similar import made at the magistrate's office and elsewhere and other testimony which need not be recit ed at length, all tending to show ownership in the defendant, and that the driver was

his servant. The defendant's denial, which there was evidence supporting, was, in substance, as follows: That the automobile was the property of the Anheuser Busch Brewing Association, loaned to the Busch Bottling Company for the use of its treasurer and manager, the defendant in this case, and that the chauffeur was the employé of the Busch Bottling Company. The most that can be said for the defendant is that there was a conflict in the proofs.

Second. Assuming that the automobile which caused the accident was the property of the defendant, and was driven at the time by his servant, it seems clear that there was evidence tending to show that the servant was acting at the time within the scope of his authority. The defendant testifies, in effect, that he was engaged at this time in a business trip to the towns of the Jersey coast. During that week he made his headquarters at the Marlborough Hotel at Asbury Park, and the automobile was kept in a garage several blocks from the hotel. On the day of the accident, and before its occurrence, the defendant had been pursuing his business in the neighborhood. With him, as usual, was his chauffeur, Alfred Harse, who was employed to "take care of the machine and keep it in order" and was accustomed to "bring the machine from the garage to the hotel in the morning." At 6 o'clock in the evening they returned to the hotel in the automobile. The defendant, after telling Harse that he was going out again that night, directed him "to go inside and get his dinner," and went in to get his own dinner, leaving the machine in front of the hotel. Harse, on leaving the dining room, informed the defendant, who was still at dinner, that oil was needed for the lamps of the automobile, and was told by him "to go downstairs in the hotel and get it." Instead of obeying this instruction, the chauffeur drove the automobile to the garage for the oil, and while on his way there the collision occurred. From this recital of facts, it seems clear that, although the chauffeur in this particular instance made use of the master's machine in apparent disobedience of the latter's instructions, he was nevertheless engaged in the furtherance of his master's business, and the inference is legitimate at least that he was acting within the general scope of his authority, which was to care for the machine and keep it in order and to drive it on occasions. The law requires that after dark lights shall be displayed, and a failure to observe this rule would subject not only the defendant but also the driver to arrest. The testimony of Harse is significant. On crossexamination, he says that besides taking the machine to and from the garage, it was a part of his duty to keep it supplied with oil, and that he "thought a chauffeur that was drawing $20 a week salary was competent to go and get some kerosene at the garage." It is easy to understand how a master might

order certain classes of servants to perform an act and expect exact obedience; but, in directing a man of the intelligence and responsibility of Harse about such a trifling matter, it was in all probability in the nature of a suggestion merely. The master's purpose was to get the oil, and there is a legitimate inference that the servant was justified in going to the garage for the purpose. In Holler v. Ross, 68 N. J. Law, 324, 53 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546, Mr. Justice Fort, speaking for the Court of Errors and Appeals, said: "The Supreme Court of Connecticut states the rule applicable to this class of cases about as clearly as it can be done, when it says: 'For all acts done by a servant in obedience to the express orders or direction of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the service required, the instructions given and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions, the servant alone is responsible.' Stone v. Hill, 45 Conn. 47, 29 Am. Rep. 635." The rule which is exactly applicable to the present case was stated by Mr. Justice Lippincott in the Court of Errors and Appeals in McCann v. Consolidated Traction Company, 59 N. J. Law, 481, 36 Atl. 888, 38 L. R. A. 236. He says: "The general rule is a clear one that the master is liable for any act of his servant done within the scope of his employment, and if a servant is acting in the execution of his master's orders, and by his negligence causes injury to a third party, the master will be responsible, although the servant's act was not necessary for the proper performance of his duty to his master, or was even contrary to his master's orders." As already pointed out, whether the act of the driver was within the scope of his em ployment and in the execution of his master's orders was a matter of doubtful inference. The rule which controlled the action of the trial judge on the motion to direct a verdict was this: That, where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. Penna R. R. Co. v. Matthews, 36 N. J. Law, 531; D. L. & W. R. R. Co. v. Shelton, 55 N. J. Law, 342, 26 Atl. 937; Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. Rep. 620; Nolan v. Bridgeton & Millville Traction Co. (N. J. Err. & App.) 65 Atl. 992.

Applying the rule stated, a jury question was raised as to the negligence of the defendant. We think, therefore, the case was properly submitted to the jury. We, of course, must assume that the jury found these doubtful matters of fact in favor of the

plaintiff. In a conflict of testimony, when the facts found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. Law, 333; Taylor v. Vanderveer, 4 Harr. (19 N. J. Law) 22. Other reasons assigned for reversal have been examined, but we find no cause for disturbing this verdict, and the rule to show cause will be discharged, with costs.

Where a clause of a will gave testator's entire estate to his wife, C., for life, or so long as she remained his widow, and the next clause provided that upon her decease or remarriage the property should go to his sons, but before his death the testator learned that his supposed wife had a husband living, and he erased her name wherever it appeared in the will, the obliteration revoked the gift to C., even if the incidental effect was to increase the residue given to the sons.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 453.j

2. SAME-EFFECT OF FAILURE OF BENEFICIARY.

The obliteration would not affect the will, even if a revocation which enlarges a residuary gift requires republication, for the estate would have passed to the sons immediately, since C., never having been the testator's legal wife, could not be his widow.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 492.]

A bequest in a will to "my said wife, C.," is to C. as testator's wife, and if she failed to answer that description the gift to her would fail.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1065, 1066.]

Appeal from Orphans' Court, Essex County. Action between Harry H. Collard and others and Emily M. Collard and others. From an order of the orphans' court probating a will in its entirety, notwithstanding the obliteration of certain portions after its execution, Harry H. Collard and others appeal. Reversed and remanded.

Joseph A. Beecher, for appellants. Rudolph A. Braun and James M. Trimble, for respondents.

BERGEN, Vice Ordinary. A writing offered as the last will and testament of George W. Collard, deceased, was admitted to probate by the orphans' court, in its entirety, notwithstanding portions of it had been obliterated by the testator after its execution. The orphans' court refused to recognize the attempted revocation, indicated by the obliterations, upon the ground that the revocation, if given effect, would enlarge the estates

of other devisees. The correctness of this conclusion is the subject of this appeal.

The will, as originally drawn, gave all of testator's estate real, personal, and mixed, "to my said wife, Emily M. Collard, for the term of her natural life, or so long as she remains my widow," and upon the decease or remarriage of his said wife gave to his two sons by a former wife all of the property "hereinbefore given to my said wife for the term of her natural life, or so long as she remains my widow." In another paragraph, he provided that if either of his children should die before the decease or remarriage of his wife, leaving lawful issue, then the share of the one so dying should go to such issue. Thus the whole of testator's estate was given to a person described as his wife, so long as she remained his widow, with remainder to his two sons, or to the issue of either dying before their right to possession matured. The evidence shows that, although the testator and Emily M. Collard had entered into a ceremonial marriage contract, she then and at the time the will was executed, had a husband living, which the testator afterwards learned, whereupon he erased her name wherever it appeared in the will, thereby revoking the bequest to her, so that the gift to the two sons, his only children, took effect immediately at his death, without being subject to a prior estate. The erasures are of such a character as to show that the testator intended to obliterate all parts of the will covered by them, and, although not carefully done, it is not difficult to discover that the intention of the testator was to eliminate the gift to his supposed wife, the effect of which was to remove the impediment to the present enjoyment by his sons of the estate given them.

The learned judge of the orphans' court, in adjudging that the writing should be admitted to probate as a whole, without regard to the obliterations, said: "But if the effect of such revocation is to enlarge the estate or interests of other devisees, or to raise new interests or rights under the will, then it is not simply a revocation, but a new devise or alteration of the will, which can only be made by re-execution and republication of the will in the manner provided by the statute"-and in support of this proposition cites Swinton v. Bailey, 4 App. Div. cas. 70; Larkins v. Larkins, 3 B. &. P. 16; Eschbach v. Collins, 61 Md. 478, 48 Am. Rep. 123. An examination of the cases referred to does not, in my judgment, warrant so comprehensive a statement. Swinton v. Bailey only determines that an obliteration, which reduces an estate given from a fee simple to life estate, is a lawful revocation. In hat case the gift was to Elizabeth Ely, her leirs and assigns forever, and, the testator having erased the words "her heirs and assigns forever," it was urged that the estate given, being reduced by the obliteration, rom a fee simple to a life estate, the erasu only