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CASES DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW JERSEY.

FEBRUARY TERM, 1919.

ELIZABETH DREIMULLER, PLAINTIFF, v. FRANK ROGOW ET AL., DEFENDANTS.

Submitted December 5, 1918-Decided June 17, 1919.

1. Where an unlawful taking and detention by the defendant is the result of malice, or wantonness, the plaintiff may, in an action of replevin, as in other tort actions, recover exemplary damages, 2. The right to award exemplary damages primarily rests upon the single ground--wrongful motive; and when the personal intent to injure is shown, the penalty may be inflicted. The power to inflict punishment is not dependent upon the form of the action by which the injured party seeks redress for the wrong done him by the malicious or wanton trespass committed against his property.

On defendant's rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

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Dreimuller v. Rogow.

For the rule, Gross & Gross.

Contra, Alexander J. Higgins.

The opinion of the court was delivered by

93 N. J. L.

GUMMERE, CHIEF JUSTICE. This was an action of replevin brought to recover certain personal property of which the plaintiff claimed to be the owner, and which was in the possession of the defendant. The writ having been served the defendant gave bond and retained possession of the property. The trial resulted in a verdict for the plaintiff for the sum of $2,500.

The first contention on the part of the defendant is that the finding of the jury that the plaintiff was the owner of the chattels involved in the litigation is against the weight of the evidence. Our examination of the proofs sent up with the rule leads us to the conclusion that this contention is without merit. On the contrary, we think the proofs fully supported that finding.

It is further claimed that the jury was not justified in finding that the defendant surreptitiously took the goods. from the possession of the plaintiff, and without her knowledge or consent. It is not denied that the defendant did remove the goods from the storehouse of the plaintiff, but it is said that the proofs show that in doing so he was acting under the authority of the plaintiff herself, and for the purpose of bringing about a sale of them for his and her joint benefit. Under the evidence the question whether the goods were taken by the defendant with the plaintiff's consent, or against her will, was clearly for the jury, and their finding upon that question is not contrary to the proofs in the case.

Lastly, it is insisted that the verdict is excessive; and the argument is that the plaintiff's recovery should have been limited to the value of the goods taken, and the damages sustained by her by reason of their detention. If it be true that the extent of the defendant's liability was as is stated by counsel, the verdict should be set aside, because it largely exceeds such value and damages. But the court charged the

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jury that if the defendant was actuated by malice in wrongfully taking the goods from the possession of the plaintiff, and that his purpose was to oppress her, they might, in addition to compensation, award punitive damages; and that they did this the amount of the verdict demonstrates. The defendant contends that this instruction to the jury, and their action thereunder, were without legal justification, for the reason that in an action to recover specific property, or its value, and damages for its detention, an award of punitive damages is not permissible. He does not claim that there was an absence of those conditions which ordinarily will justify an award of damages by way of punishment, but rests himself solely upon the assertion that damages of this nature cannot be awarded in a replevin suit. No authority is cited in support of this proposition, and it runs counter to the rule prevailing in other jurisdictions, which is that where the unlawful taking and detention by the defendant. is the result of malice, or wantonness, the plaintiff may, in an action of replevin, as in other tort actions, recover exemplary damages. 24 Am. & Eng. Encycl. L. (2d ed.) 515, and cases cited; 34 Cyc. 1567, and notes. The question has not heretofore received consideration by this court, but we think that on principle the rule above recited is the correct one, and should be followed by us. The right to award exemplary damages primarily rests upon the single ground-wrongful motive; and when the personal intent to injure is shown, the penalty may be inflicted. Haines v. Schultz, 50 N. J. L. 481. And this is true with relation to all trespasses committed against the property of another, which involves malice or a wanton and reckless disregard of the rights of the person against whom the tortious act is committed. Trainer v. Wolff, 58 Id. 381. The purpose of the award being to punish the wrongdoer, no reason is perceived for holding that the power to inflict punishment is dependent to any extent upon the form of the action by which the injured party seeks redress for the wrong done him by the malicious or wanton trespass committed against his property.

The result is that the verdict cannot be set aside as excessive; and the rule to show cause must be discharged.

Lesko v. Liondale Bleach, &c., Works.

93 N. J. L.

MERI LESKO, GUARDIAN, ETC., PLAINTIFF, v. LIONDALE BLEACH DYE AND PRINT WORKS, DEFENDANT.

Submitted December 5, 1918-Decided June 17, 1919

1. The provisions of the Workmen's Compensation act with relation to the recovery of compensation applies only where the contract of hiring was a valid one, and not where such a contract is prohibited by the statute laws of the state.

2. Where an infant is put to work by his employer in direct contravention of the provisions of the Factory act, the common law liability of the employer to compensate the employe for injuries caused by the negligence of the former is not affected by the provisions of the Workmen's Compensation act.

3. Where an infant is hired to do work, in contravention of the Factory act, by reason of false representations, by him, that he is not within the age limit specified in that statute, such false representation does not relieve the employer from the common law liability to compensate for injuries caused by the employer's negligence.

4. A child who is employed in violation of the Factory act is not chargeable with contributory negligence, or with having assumed the risks arising out of that employment.

On defendant's rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the rule, King & Vogt.

Contra, James H. Bolito.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The defendant company operates a large laundering plant at Rockaway, in this state. Some time in 1916, Andrew Kline, the ward of the plaintiff, was employed by the company, and in June of that year was put to work upon a washing or laundering machine. His specific work was to keep the edge of the goods which were

93 N. J. L.

Lesko v. Liondale Bleach, &c., Works.

run through the machine from curling or getting folded, as it passed over the rollers. His hand apparently became entangled in the machinery, was drawn in between two of the rollers, and crushed. At the time of the accident Kline was under sixteen years of age; but this fact was not known to the defendant. On the contrary, Kline himself, at the time of his employment, represented to the company's superintendent that he was then over sixteen years old.

This suit is based upon the common law liability of an employer to compensate an employe for injuries received in his employment by reason of the negligence of the master. The trial resulted in a verdict for the plaintiff.

The first ground upon which we are asked to make this rule absolute is that since the enactment of chapter 95 of the laws of 1914, commonly known as the Workmen's Compensation act, that statute provides the only means by which an injured employe can recover compensation from his employer for injuries received in the course of, and arising out of, his employment; and abrogates the common law liability of the master for such injuries. But this statutory provision with relation to the recovery of compensation only applies where the contract of hiring is a valid one, and not where such a contract is prohibited by the statute law of the state; and this is the situation now presented. By an amendment passed in 1914 (Pamph. L., p. 525) to the Factory act of 1904, it is declared (section 4) that "No minor under the age of sixteen years shall be employed, permitted or suffered to work at any of the following occupations, or in any of the following positions: adjusting any belt to any machinery * operating or assisting in operating any laundry machinery," &c. In the case of Hetzel, Jr., v. Wasson Piston Ring Co., 89 N. J. L. 201, it was declared by the Court of Errors and Appeals that where an infant was put to work by his employer in direct contravention of the provisions of the Factory act, the common law, liability of the employer to compensate his employe for injuries caused by the negligence of the former was not affected by the provisions of the Workmen's Compensation act.

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