contracted to use fireproof materials, and the [ 4._CARRIERS (§ 114*)-CARRIAGE OF Goods— defendant's president and manager thought that the materials used were of that character, then their verdict should be for the defendant. But only one of the errors assigned which is relied upon as a ground for reversing the judgment under review is the exclusion by the trial court of evidence offered by the defendant under its asserted right of recoupment. We do not find it necessary, in deciding the case before us, to pass upon the propriety of the ruling complained of. The cardinal point in controversy between the parties was whether or not the plaintiff had contracted to furnish materials which were not combustible, in the decoration of the defendant's café. The right of the defendant to recoup (if such right existed) depended upon the obligation of the plaintiff to furnish noninflammable materials. The court, as has already been stated, instructed the jury that they could not render a verdict in favor of the plaintiff unless they found that he had not contracted to furnish materials of that character. The verdict, therefore, nec essarily negatived the existence of any such obligation upon his part, and testimony bearing upon the extent of the defendant's right to recoup, even if competent when offered, became immediately immaterial in view of the jury's finding. This being so, the ruling complained of, even if erroneous, furnishes no ground for reversal. Schenck v. Griffin, 38 N. J. Law, 467. Loss-REASONABLE TIME FOR REMOVAL. does not terminate until after the consignee The responsibility of a carrier of goods has had reasonable time within which to remove them. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 608-620; Dec. Dig. § 114.*] 5. CARRIERS (§ 140*)-CARRIAGE OF GOODSLIABILITY AS WAREHOUSEMAN. A carrier of goods holding them as a warehouseman is responsible for damages to them attributable to its negligence. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 609, 6092, 611-616; Dec. Dig. § 140.*] Error to Supreme Court. Action by Lamburtus C. Bobbink and Frederick L. Atkins, partners, etc., against the Erie Railroad Company. Judgment for defendant, and plaintiffs bring error. Reversed, and a venire de novo awarded. John M. Gardner, of New York City, and William D. Tyndall, for plaintiffs in error. Collins & Corbin, for defendant in error. PITNEY, Ch. This writ of error was sued out to review a judgment entered in the Supreme Court upon a verdict directed in favor of defendant at the trial of the cause. The action was brought to recover damages for fire resulting in the destruction of certain flowers and shrubs that had been imported from Holland by plaintiffs in er ror, and which at the time of the fire were upon open cars of the defendant standing upon a railroad siding upon its line at The judgment under review will be af- Rutherford, N. J., awaiting delivery to the firmed. (82 N. J. L. 547) BOBBINK et al. v. ERIE R. CO. (Court of Errors and Appeals of New Jersey. March 5, 1912.) 1. CARRIERS (§ 156*)-CARRIAGE OF GOODSLIMITATION OF LIABILITY. A clause in a bill of lading exempting the carrier from liability for loss or damage caused by fire does not relieve it from liability for negligence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. § 156.*] 2. CARRIERS (§ 132*)-CARRIAGE OF GOODS ACTION FOR LOSS-EVIDENCE. In an action to recover for the loss of goods destroyed while in the possession of a carrier under bill of lading containing an exemption of liability for loss by fire, the plaintiff must show negligence on the part of the carrier. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 578-582, 605; Dec. Dig. § 132.*] 3. CARRIERS (§ 180*)-CARriage of GooDSCONNECTING CARRIERS-AGENCY. Where a bill of lading was issued by an initial carrier in the name and for the account of a connecting carrier, which received the goods at the point of transfer, it might be inferred that the initial carrier in issuing the bill of lading was authorized to act and acted as agent for the connecting carrier. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*] plaintiffs. Plaintiffs claim the right to recover upon two grounds, viz.: First, that the defendant negligently loaded the trees and shrubs (wrapped, as they were, in straw and burlaps) upon open cars, instead of placing them in box cars; and, secondly, that the defendant negligently permitted sparks to escape from one of its locomotive engines, whereby the fire in question was started. The verdict was directed upon the ground that by the contract expressed in the bill of lading it was agreed that the company should not be liable for damage caused by fire, and that there was no proof to show that the fire was in any way due to the negligence of the defendant. [1, 2] The bill of lading does contain an exemption of liability for loss or damage caused by fire; and it is conceded by plaintiffs' counsel that for this reason it was incumbent upon them to show negligence on the part of the carrier, while, on the other hand, it is conceded that the clause in the bill of lading does not relieve the carrier Atkinson v. from liability for negligence. New York Transfer Co., 76 N. J. Law, 608, 71 Atl. 278; Johnson v. West Jersey, etc., R. R. Co., 78 N. J. Law, 529, 74 Atl. 496, 138 Am. St. Rep. 625, 20 Ann. Cas. 228, and cases cited. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes There was evidence from which the jury | the Rutherford yard more than two days bemight infer that goods of the character of those in question were customarily shipped in ordinary box cars; that proper care required this; and that the plaintiffs did not authorize their goods to be shipped upon open cars, nor know that it was to be done until the goods arrived at destination. It seems to us also that there was sufficient evidence to go to the jury upon the question whether the spark-arresting screen of the locomotive was not in a defective condition, attributable to defendant's negligence. There was evidence, on the one hand, tending to show that the screen had been inspected on the day before the fire and found to be in good order; but, on the other hand, there was evidence tending to show that when such a screen is in good order the sparks that are permitted to pass through it, even if they fall upon inflammable matter, are not large enough to set it afire, because the sparks are thrown so high in the air that they "die" before coming down. See Goodman v. Lehigh Valley R. R. Co., 78 N. J. Law, 317, 74 Atl. 519. fore the fire. But the evidence upon the question of the time of their arrival was in conflict, there being evidence from which it might be inferred that they arrived within 24 hours preceding the fire. Moreover, there was evidence to the effect that notice of their arrival was not given to the consignee longer than six or seven hours before the fire. There being evidence from which the jury might reasonably attribute negligence to the defendant company, both with respect to transporting the goods in question upon open cars, instead of box cars, and with respect to the communication of the fire itself, by means of which the goods were destroyed, and there being no indisputable ground upon which the defendants could be excused from the consequences of such negligence, it results that it was erroneous to take the case from the jury. The judgment under review should be reversed, and a venire de novo awarded. (82 N. J. L. 445) [3] Defendant claims that the bill of lad- WESTON ELECTRICAL INSTRUMENT CO. ing was issued by the Hoboken Railroad Company, and that this company is not in v. BENECKE. WESTON v. SAME. March 4, 1912.) any way connected with the Erie Railroad (Court of Errors and Appeals of New Jersey. Company, except that it ships freight for that company and makes connection with its line. But the bill of lading shows that it was made by the Hoboken Company in the 1. LIBEL AND SLANDER (§ 74*)-PROCURING name and for the account of the Erie Railroad Company, and upon all the evidence it was a permissible inference that the Hoboken Company was authorized to act and did act as agent for the Erie Company in the shipment. (Syllabus by the Court.) PUBLICATION OF LIBEL. One who causes or procures a libel to be published in a newspaper is responsible therefor. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 175-178; Dec. Dig. § 74.*] 2. TRIAL (§ 384*)-NONSUIT-TRIAL BY THE COURT. The rules as to nonsuits are the same. and have the same application, when the trial 3. TRIAL (§ 165*)-MOTION FOR NONSUIT. [4] Defendant further claims that the switch or siding upon which the cars stood at the time of the fire was a private siding controlled by the defendants, and not a regular place of delivery of the defendant company. The evidence, however, did not show this so clearly as to warrant the court in taking it from the jury. Moreover, the fact, if it were established, that the goods had been placed within the control of the plaintiffs, was not sufficient to terminate the responsibility of the carrier until after the consignee had had reasonable time within which to remove freight. Burr v. Adams Express Co., 71 N. J. Law, 263, 58 Atl. reasonably arising therefrom, will support a 609. [5] And even if the defendant company was no more than a warehouseman, it would nevertheless be responsible for damages attributable to its negligence. The bill of lading contained a provision that property not removed by the consignee within 24 hours, after its arrival at destination might be kept in the car at the sole risk of the owner of the property. It is contended that the cars in question were in A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*] 4. TRIAL (8 139*)-MOTION FOR NONSUIT— DENIAL. Where the evidence, and the inferences verdict for the plaintiff, a motion for a nonsuit must be denied. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*] 5. TRIAL ($ 384*)-NONSUIT. In a trial before the judge, sitting without a jury, a motion for a nonsuit should be denied where the evidence, and the inferences reasonably arising therefrom, are legally sufficient to prove the material allegations of the plaintiff's declaration. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 900: Dec. Dig. § 384.*] Error to Supreme Court. Action by the Weston Electrical Instrument Company against Adelbert O. Benecke and by Edward Weston against the same defendant. Judgments of nonsuit, and plaintiff in each case brings error. Reversed, and new trial ordered. Franklin W. Fort and Alfred F. Skinner, for plaintiffs in error. Riker & Riker, for defendant in error. TRENCHARD, J. These two writs of error bring up for review judgments of nonsuit in actions against Adelbert O. Benecke, one at the suit of the Weston Electrical Instrument Company, and the other at the suit of Edward Weston. The suits were, by consent, tried together before the circuit court judge, sitting without a jury, at the Essex circuit, and have been here argued together. The actions were for libel. The article alleged to be libelous was published in the Newark Morning Star and the Newark Evening Star. The declarations averred that the defendant below, Dr. Benecke, published the article, or caused it to be published. The evidence, when the plaintiffs rested, and at the time the nonsuit was granted, tended to show the following matters of fact: The article in question was written by Mr. Travis, a newspaper reporter, from information obtained, partly from one Fischer, and partly from a bill of complaint which was subsequently filed by Dr. Benecke against the plaintiffs in the court of chancery. The bill of complaint came into the possession of the reporter three days before it was filed in Trenton; but from what source he received it does not appear. It was filed September 20, 1907. The article in question was published the same day. After the article had been written by Mr. Travis, it was "set up," the "proof" corrected, and a new proof was made. On the morning of September 20th, or the afternoon of the day before, Mr. Travis, under the guidance of Mr. Fischer, went with this revised proof to Dr. Benecke's office, and was introduced to him. Mr. Fischer said: "Dr. Benecke, this is Mr. Travis, who has gotten up this article," and further stated that Mr. Travis was "a newspaper man who not only represented the Evening Star, but a number of New York afternoon papers and the Associated Press." Thereupon Dr. Benecke took the "galley proof" of the article, read it, corrected the spelling of a proper name, substituted or erased a word or two, and handed it back to the reporter with the remark, "That is all right." After the article had been thus corrected by the defendant, and at the time or immediately before it was returned to the reporter, Mr. Fischer said to the reporter, in the presence of the doctor, "You can put this in the Morning Star also," and asked "some other questions about sending it to the New York papers." The reporter answered that "the Morning Star picked up the type used in the afternoon edition." After some further conversation, not necessary to detail, the reporter departed, made the corrections in the type noted by Dr. Benecke, and "released" the article-that is to say, ordered it printed-and it appeared in the Evening Star of September 20th and the Morning Star of September 21st. The motion for nonsuit was made by the defendant at the close of the testimony upon the part of the plaintiffs. Concerning it, the record is as follows: "Mr. Riker: I move for a nonsuit in both of these cases, on the ground that there has not been shown any authorization of the publication of this document, under the evidence, by Dr. Benecke. (Motion argued.) The Court: I think I may assume that there is no case that goes beyond the cases referred to; if there had been, counsel no doubt would have found it. Neither of the cases cited goes far enough; and the question, therefore, is left to be determined by the view which seems most just, and most in accordance with the spirit of the authorities. My conclusion is that enough has not been shown to bring home to the defendant the publication. necessary for me to elaborate upon that; but that conclusion leads to a nonsuit, which I accordingly grant in each case." ruling an exception was duly taken, and error is assigned thereon. It is not To this [1] We are of opinion the nonsuit was erIt is well settled that one who roneous. causes or procures a libel to be published in a newspaper is responsible therefor. 25 Cyc. 429; 18 A. & E. E. of L. (2d Ed.) 1066; Newell on Slander and Libel (2d Ed.) 244; Odgers on Libel and Slander, *157; Hazy v. Woitke, 23 Colo. 556, 48 Pac. 1048; Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543; Parkes v. Prescott, L. R. 4 Exch. 109, 38 L. J. Exch. 105; Reg. v. Cooper, 8 Q. B. 533, 55 E. C. L. 533, 15 L. J. Q. B. 206. [2] The rules as to nonsuits are the same, and have the same application, when the trial is by the court as when it is by a jury. Freese v. Hibernia Sav., etc., Soc., 139 Cal. 392, 73 Pac. 172; Schlesinger v. Jud, 61 App. Div. 453, 70 N. Y. Supp. 616; Weisberger v. Martin (Sup.) 86 N. Y. Supp. 115. [3] A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law. Hayward v. North Jersey St. Ry. Co., 74 N. J. Law, 678, 65 Atl. 737, 8 L. R. A. (N. S.) 1062; Kaufman v. Buch, 69 N. J. Law, 645, 56 Atl. 291. [4] Where the evidence, and the inferences reasonably arising therefrom, will support a verdict for the plaintiff, a motion for a nonsuit must be denied. Dayton v. Boettner, 81 Atl. 726. [5] It follows, therefore, that in a trial before the judge, sitting without a jury, a motion for a nonsuit should be denied where the evidence, and the inferences reasonably arising therefrom, are legally sufficient to prove the allegations of plaintiff's declaration. Chicago First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296, 38 N. E. 739, 26 L. R. A. 289, 43 Am. St. Rep. 247; Freese v. Hibernia Sav., etc., Soc., 139 Cal. 392, 73 Pac. 172; Forbes v. Chichester, 125 N. Y. 769, 26 N. E. 914; Schlesinger v. Jud, 61 App. Div. 453, 70 N. Y. Supp. 616; Weisberger v. Martin (Sup.) 86 N. Y. Supp. 115. evidence properly weighed." We may add that the plaintiffs had also the right to be heard in argument as to the weight of the evidence, and whether the inferences which might be drawn therefrom should be drawn, and that right was in effect denied the plaintiffs by thus disposing of their rights upon the motion to nonsuit. Both judgments under review will be reversed, and a venire de novo awarded. (82 N. J. L. 736) HEDDEN et al. v. BOROUGH OF VERONA. Tested by this rule, the nonsuit in the (Court of Errors and Appeals of New Jersey. present case was improperly granted. We have pointed out that the judge, exercising the functions of a jury, might have reasonably found as a fact that the libelous article, written by the reporter, set forth the defendant's side of his personal controversy with the plaintiffs as exhibited in the bill in chancery; that it was written, and possibly submitted to and corrected and approved by the defendant, before the chancery bill was filed in court; that the defendant expressed no indignation nor surprise, though he knew that the reporter intended to publish the article in the Evening Star; and that in the presence of the defendant Mr. Fischer, who had furnished in part the information upon which the article was based, requested or ordered that it be published in other newspapers. From these facts, and with the additional fact that Mr. Fischer's request or order for additional publication was made under such circumstances as to give notice to the defendant that he was assuming to act as the defendant's agent, and that the reporter would draw that inference, it was open to the judge to infer that he was in fact the defendant's agent, and throughout acted as such. It follows, therefore, that the judge, sitting without a jury, might reasonably have found that the defendant caused or procured the libel to be published. In such situation, it was the duty of the trial judge, before settling that question, to weigh the testimony, as would a jury, and thus determine whether or not the defendant caused or procured the publication. This he did not do. The motion for nonsuit presented a question of law, namely, Admitting the truth of the plaintiffs' evidence, and of the inferences favorable to the plaintiffs that could legitimately be drawn therefrom, could the plaintiffs recover? The motion was argued and decided as a question of law; and we have pointed out that the decision was erroneous. As was said by Earl, J., speaking for the New York Court of Appeals, in Forbes v. Chichester, 125 N. Y. 769, 26 N. E. 914: "The plaintiff may fail to satisfy any court, upon the evidence, that he is entitled to recover; but he has a right to have his March 4, 1912.) (Syllabus by the Court.) 1. EMINENT DOMAIN (§ 2*)-MUNICIPAL COBPORATIONS (§ 469*)-EXTENT OF POWEBCONSTITUTIONAL PROVISIONS. A statute providing for the levying of a special assessment for the cost of a sidewalk improvement, and distributing the assessment tion to the lineal feet of sidewalk bordering upamong the owners of abutting lots in proporon the several lots, is not unconstitutional. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2:* Municipal Corporations, Cent. Dig. §§ 11131117; Dec. Dig. § 469.*] (Additional Syllabus by Editorial Staff.) 2. MUNICIPAL CORPORATIONS (§ 406*)-PUBLIC IMPROVEMENTS ASSESSMENTS. A sidewalk assessment is not rendered in valid by the fact that there was no bond issue to pay for the improvements; but it was paid for out of funds in hand. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1001, 1002; Dec. Dig. § 406.*] · Error to Supreme Court. Certiorari, prosecuted by Austin E. Hedden and others, to review an assessment by the Borougn of Verona. From a judgment for the Borough, the prosecutors bring error. Affirmed. The opinion of the Supreme Court, delivered by Parker, J., is as follows: "This is a writ of certiorari bringing up an assessment against the prosecutors for the construction of sidewalks on Bloomfield avenue within the borough of Verona, in the county of Essex. The improvement was ordered to be made in 1905, while Verona was a township. In 1907 Verona was incorporated as a borough. P. L. p. 173. At that time the improvement had been completed, but no assessment had been made. The territory of the borough, however, included only part of that of the former township, whose name was changed to the township of Cedar Grove, and there was an adjustment of assets and liabilities between the township and the borough, presumably under the act of 1897, p. 275. "By chapter 159 of the Laws of 1908 (P. L. p. 260), the Legislature apparently provided by general enactment for this very case, and prescribed that the authorities of the borough should complete the improvement, if incomplete, and 'make assessment therefor upon the owner or owners of each lot fronting on or bordering which such work has been or shall have been done in the manner provided by the laws under which such improvement was or shall have been instituted'-in the present case, the township act of 1899 (P. L. p. 372), which will be hereafter further referred to. Section 2 of the act of 1908 provides that the assessment shall be made by the borough council of the borough in the manner and by the method provided by the laws under authority of which the improvement was begun; and all other proceedings shall be performed by the officers of the borough whose duties correspond in general to the duties of the officers of the township upon whom such duties devolved under the former law. "The second objection raised by the prosecutors is that an assessment for sidewalk by the front foot rule must be by virtue of the police power; and that it is not within the police power of the Legislature to confer upon the township committees authority to lay sidewalks and assess the cost to the property owners fronting on an improvement. But Chief Justice Beasley, in Agens v. Newark, supra, considered it as justified under the police power; and this was the ground of his distinguishing Sigler v. Fuller from the Tidewater Case. It was treated in the same way by Chancellor Magie, in Doughten v. Camden, 72 N. J Law, at pages 455 and 456, 63 Atl. 170, 3.L. R. A. (N. S.) 817, 111 Am. St. Rep. 680, 5 Ann. Cas. 902. Whatever be the theory on which the validity of such sidewalk assessment is sustained, the rule, affirming the validity of such an assessment per front foot, is firmly established in this court. [2] "The prosecutors' next argument is that, because there was no bond issue to pay for the improvement, there can be no assessment for the same. It is true that the work was paid for by the township before the borough was created; but it was paid for out of funds in hand and as a matter of convenience. The property owners were liable for an assessment, whether the township happened to have money in hand or not; and the fact that it was paid for before the borough was set off does not alter the situation in this regard, because we must pre "Accordingly the borough council and officers went on to make an assessment for the sidewalks in question, pursuant to the township act of 1899, already cited, and especially sections 41 and 42 of said act as amended in 1901. P. L. p. 282. Section 42 prescribes that the amount of the assessment 'shall be levied upon the owner or owners of each lot fronting on which or bordering on which such work shall have been done in proportion to the number of lineal feet of sidewalk in front of or bordering on said lot,' and the assessment was made accordingly. No bonds were issued by either the township or the borough to pay for the im-sume that under the adjustment of assets provement, because there was cash in the township treasury available, and which was used to pay for it; and the raising of a loan was therefore unnecessary. [1] "The prosecutors attack the assessment on the following grounds: First, that the legislation providing for an assessment by what is known as the front foot rule is unconstitutional as taking private property without compensation; and that the only constitutional method is to assess strictly in accordance with benefits ascertained to have been conferred. Counsel cite the celebrated cases of Agens v. Newark, 37 N. J. Law, 415, 18 Am. Rep. 729, and Tidewater Company v. Coster, 18 N. J. Eq. 519, 90 Am. Dec. 634. But we are concluded in this matter by the decision in Sigler v. Fuller, 34 N. J. Law, 227, which was distinguished in Agens v. Newark, at page 423 of 37 N. J. Law, 18 Am. Rep. 729, followed by Kirkpatrick v. Commissioners, 42 N. J. Law, 510, and Robins v. Commissioners, 44 N. J. Law, 116. In Doughten v. Camden, in the Court of Errors and Appeals, 72 N. J. Law, 451, at page 456, 63 Atl. 170, 3 L. R. A. (N. S.) 817, 111 Am. St. Rep. 680, 5 Ann. Cas. 902, the rule laid down in this line of cases was alluded to, but without any expression of disapproval. and liabilities as between the two municipal corporations the liability of the property owners to an assessment for this sidewalk must have been taken into account. "The prosecutors advance the further reason that the act of 1908 is unconstitutional. The case is submitted on briefs, and we find no discussion of this point in prosecutors' brief, and therefore deem it to be waived. "The assessment will be affirmed, with costs." Lafferty & Pilgrim, for plaintiffs in error. Edwin G. Adams, for defendant in error. PER CURIAM. The judgment under review herein should be affirmed for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. (82 N. J. L. 456) HARRIS v. DELAWARE, L. & W. R. R. et al. (Court of Errors and Appeals of New Jersey. March 4, 1912.) 1. EVIDENCE (§ 122*) — DECLARATIONS-RES GESTÆ. for the value of a commutation ticket taken In an action against a railroad company from plaintiff by the company on the ground that he had permitted others to use it in vio For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-56 |