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93 N. J. L.

Drago v. Central Railroad Co. of N. J.

exempt itself from any liability created by this act shall to that extent be void," results from the making of a contract (as here) by an interstate railway carrier with an independent stevedoring corporation under which the work of handling the railroad company's freight from cars to boats and from boats to cars at its water front terminal is to be performed by such independent contractor, even though the latter expressly assumes all liability for injury to its employes while employed upon the premises of the railroad company. Robinson v. Baltimore and Ohio Railroad Co., supra; 59 L. Ed. 819; Chicago, R.I. & P.R.R. Co. v. Bond, supra; 60 L. Ed. 735.

The kind of contract, rule, regulation or device which congress intended to avoid by section 5 is indicated in Philadelphia, B. & W. Ry. Co. v. Schubert, 224 U. S. 603; 56 L. Ed. 911. Schubert was a member of the Railroad Relief Fund under a contract of membership in which it was agreed that the company should apply, as a voluntary contribution from his wages, a certain amount monthly for the purpose of securing the benefits described in certain regulations. One of these regulations made the acceptance of benefits on account of the injury or death of an employe equivalent to a release of the company's liability. In that connection Mr. Justice Hughes said of section 5: “It includes every variety of agreement or arrangement of this nature; and stipulations, contained in contracts of membership in relief departments, that the acceptance of benefits thereunder shall bar recovery, are within its terms.”

Speaking of the changes wrought by the Federal Employers' Liability act, the Supreme Court, in Second Employers' Liability Cases, 223 U. S. 51, said that “the natural tendency of the changes described is to impel the carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines," and in the present case it is to be observed that the defendant railroad had no control over the employes of the stevedoring corporation, of whom the plaintiff was one.

In Robinson v. Baltimore and Ohio Railroad Co., supra;

Drago v. Central Railroad Co. of N. J.

93 N. J. L.

59 L. Ed. 819, it was held that a Pullman porter is not an employe of the railroad hauling the car on which he is employed so as to come within the provisions of the Federal Employers' Liability act. When engaged he agreed to protect the Pullman company in its contracts by which it undertook to insure railroad companies hauling its cars against liability for injuries to Pullman employes. The contract exempting the Pullman company and the carrier from liability was upheld.

In Chicago, Rock Island and Pacific Railroad Co. v. Bond, supra; 60 L. Ed. 735, an individual independent contractor was killed while in the railroad company's yard, in which, under his contract, he was unloading coal from railroad cars for the railroad. Suit under the federal act was brought against the railroad by his administrator. It was contended that the contract of decedent with the railroad, whereby he independently undertook the unloading of coal for the railroad, was a contract, regulation or device made void by section 5 of the act, and also that the decedent was an employe and not in fact an independent contractor. In reversing the trial court, who submitted to the jury the question whether or not the decedent was an emplove of the company, Mr. Justice McKenna said: “We do not think that the contract can be regarded as an evasion of section 5 of the Employers' Liability act.

Turner [decedent] was something more than a mere shoveler of coal under a superior's command. He was an independent employer of labor, conscious of his own power to direct and willing to assume the responsibility of direction and to be judged by its results. This is manifest from the contract under review and from the cooperage contracts; it is also manifest from his contracts with the other companies to whose industries the railroad company's tracks extended. We certainly cannot say that he was incompetent to assume such relation and incur its consequences. Thus, being of opinion that Turner was not an employe of the company, but an independent contractor, it is not material to consider whether the services in which he was engaged were in interstate commerce,”

93 N.J. L.

Drago v. Central Railroad Co. of N. J.

In the present case, the stevedoring corporation occupied precisely the same position with respect to the defendant that Turner in the Bond case occupied to the railroad. Since the independent contractor himself could not recover because not an employe of the railroad, it follows that the plaintiff here cannot recover because not an employe of the railroad. Since, under the Bond case, a contract very similar in terms to that in the present case was not a contract in violation of section 5, it cannot be said that the contract under consideration is in violation of that section.

As was said, in effect, in the Bond case, we cannot say that the contract was one which the parties were incompetent to make. By it the defendant railroad did not undertake to relieve itself from responsibility as a common carrier to its patrons or the public, and hence we are not now concerned with such a case. The defendant railroad evidently considered, for one reason or another, that it would be more satisfactory to have its cars unloaded by stevedores employed and directed by an independent contractor. In entering into the contract for that purpose it intended, of course, to relieve itself of the burden of dealing with and being responsible for this class of employes. But that, as we have seen, it had the legal right to do. The fact that the Railroad Stevedoring Corporation when it made the contract took over the men then working for the defendant railroad is legally immaterial. These men were not obliged to work for the Railroad Stevedoring Corporation, but it was quite natural that they should have been offered such employment in view of their experience in that line of work.

The judgment under review will be reversed and a venire do novo awarded.

For affirmance—THE CILANCELLOR, SWAYZE, MINTURN, KALISCH, BLACK, JJ. 5.

For reversalTHE CHIEF JUSTICE, TRENCHARD, PARKER, BERGEN, WHITE, HEPPENIIEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 9.

Levenson Wrecking Co. v. Gatti-McQuade Co. 93 N.J.L.

LEVENSON WRECKING COMPANY, RESPONDENT,

GATTI-MCQUADE COMPANY, APPELLANT.

Argued March 7, 1919-Decided June 20, 1919.

1. Where the existence and not the validity or construction of a

parol lease or the terms thereof is the point in issue, and the evidence is conflicting, it is for the jury to determine whether

or not the lease did in fact exist. 2. Where the real question in controversy has been fully and fairly

tried, though not precisely pleaded, and the complaining party has not been surprised or injured, the reviewing court has the power to amend the pleadings in order to support the judgment, and will in such case, in the interest of justice, exercise the

power. 3. As a general rule, in an action by a landlord to recover rent,

the tenant is estopped to set up in defence the want of title on the part of the landlord at the time the lease was made, so long as the tenant is undisturbed in his occupation of the demised

premises. 4. The rule that one who goes into possession as a tenant of

another is estopped to deny the title of the landlord at the time the lease was made, so long as the tenant is undisturbed in his possession of the demised premises, applies equally to a where the tenant was in possession under a prior lease at the time of making the renewal lease sued upon, as well as where he

takes possession under and by virtue of the latter. 5. A tenant who enters into a renewal of the lease under which

he was in possession is estopped from denying his landlord's title at the time the renewal lease was made, even though the tenant vacates the premises on the last day of the old term, when he does so without the consent of the landlord and without any

interference with his possession. 6. The rejection of evidence admissible for a purpose other than

that for which it is offered will not justify a reversal when the evidence, if received, could reasonably have but slight effect.

ease

On appeal from the Hudson County Circuit Court.

For the appellant, JcDermott & Enright and James D. Carpenter, Jr.

For the respondent, Weller & Lichtenstein,

93 N. J. L.

Levenson Wrecking Co. v. Gatti-McQuade Co.

The opinion of the court was delivered by

TRENCHARD, J. This is an appeal from a judgment entered on a verdict for the plaintiff in an action by the Lerenson Wrecking Company, a corporation, against the GattiMcQuade Company, another corporation, for rent reserved under a parol lease alleged to have been made in June, 1914, for a term of one year, beginning August 1st, 1914.

We are of the opinion that the judgment must be affirmed.

At the trial it appeared and was undisputed that the parties entered into a written lease for one year, from August 1st, 1912, and on that date the defendant took possession of the premises. It was also admitted that thereafter the defendant entered into an oral renewal of the lease with the plaintiff for another year, ending July 31st, 1914. The plaintiff claimed that in June, 1914, the parol agreement sued upon was made between the parties for another year, to commence August 1st, 1914. That the defendant denied. According to the plaintiff's evidence the defendant vacated the premises on August 4th, 1914; according to the defendant's evidence it vacated on July 31st, 1911. It appeared, however, and was undisputed, that the defendant's possession of the premises was undisturbed and that it vacated the premises without the consent of the plaintiff and refused to pay rent from and after August 1st, 1914.

We think that the trial judge properly submitted to the jury the question of fact whether or not a renewal lease for one year, from August 1st, 1914, had been made. The evidence upon that point was conflicting. And the rule is, that where the existence and not the validity or construction of a parol lease or the terms thereof is the point in issue, and the evidence is conflicting, it is for the jury to determine whether or not the lease did in fact exist.

In this connection the defendant argues that the judgment should be reversed because the complaint averred that the lease was for a term beginning July 1st, 1914, while the plaintiff's evidence showed, and the jury found, a letting for a term beginning August 1st, 1914. This discrepancy was noticed at the trial just as the judge was about to submit the

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