same, and that an objection was noted to such refusals. Under Kargman v. Carlo, 85 N. J. Law, 633, 90 Atl. 292, and Miller v. Del. Trans. Co., 85 N. J. Law, 700, 90 Atl. 288, Ann. Cas. 1916C, 165, these requests will not Besides, it was held by our Supreme Court, I show that the court refused to charge the in Ackerson v. Erie R. Co., 31 N. J. Law, 309, that an action will lie in this state for a tort to the person committed in another state. In that case the plaintiff was injured by the carelessness of the defendant while riding in | a car on its railroad in the state of New be considered. York, and it was held that the action was transitory and that it was well brought in this state. [2] Another ground of appeal is that the. trial judge erred in denying appellants' motion for a nonsuit upon the opening made by The judgment will be affirmed, with costs. the plaintiff's attorney. Although an objec (90 N. J. Law, 313) CHRISAFIDES v. BRUNSWICK MOTOR CO. et al. (No. 108.) (Court of Errors and Appeals of New Jersey. March 5, 1917.) 1. APPEAL AND ERROR ~499(4)—RECORD MATTERS TO BE SHOWN-PRESERVATION OF EXCEPTIONS. tion was noted to the refusal of the court to nonsuit on that ground, the appellants' brief is silent upon the subject, and therefore it will be assumed that this ground of appeal has been abandoned. [3] A further ground of appeal is that the trial court refused to strike out the testimony of the plaintiff when he answered the question: "Q. Could he have seen you coming if he had looked? A. Oh, yes; he could." No objections appear to have been taken to the ruling of the court, and therefore, as already pointed out, the ruling will not be considered. [4] The only other ground of appeal is directed to this language used by the trial 1078(4)-BRIEFS-judge in his charge: Where the record does not show that the court was asked to deal with any of the requested instructions nor that it refused to charge them or that objection was noted to the refusals, the exceptions will not be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2298.] 2. APPEAL AND ERROR SUFFICIENCY-ABANDONMENT OF GROUNDS. Where objection was noted to refusal to nonsuit, but the brief was silent on the subject, it will be presumed that such ground of appeal has been abandoned. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4259.] 3. APPEAL AND ERROR 204(1)-SCOPE OF REVIEW-PRESERVATION OF EXCEPTIONS. The court will not review admission of testimony where no objections were taken to the ruling of the court thereon. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1258, 1259, 1274-1277; Trial, Cent. Dig. § 172.] 4. TRIAL 193(3)-INSTRUCTIONS-INVASION OF JURY'S PROVINCE-CURE BY OTHER INSTRUCTION. In action for injuries in automobile collision, it was not error for the court to say that it was difficult for him to feel that there was no negligence, where by further instruction he left it to the jury to say whether there was negligence. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 438.] Appeal from Supreme Court. Action by Stratton Chrisafides against the Brunswick Motor Company and another. Judgment for plaintiff, and defendants appeal. Affirmed. William E. Holmwood, of Newark, for aplants. Irving Kunzman, of Plainfield (W. S. Angleman, of Plainfield, of counsel), for appellee. PER CURIAM. [1] The record here for review discloses that the appellants set out 11 grounds of appeal. Seven of these are based upon alleged refusal of the trial judge to charge the seven specific requests set out in the grounds of appeal. The record does not show that the court was asked to deal with any of the requests, nor does the record "It is very difficult for me to feel that there was no negligence; a car coming along at a fair rate of speed, and turning a corner sharp, as he puts it, and a collision." Counsel for appellants contend that this was an error, in that the court invaded the province of the jury by deciding a question of fact in issue. But this excerpt does not represent all that the trial judge said in this connection; for he, in continuation of what has just been quoted, said: "He looked while some distance down the street, but did not look apparently as he came closer to the corner. But it is for you to say from all the evidence whether this driver Knauss was negligent, or whether he was not." It was not error for the trial judge to give his opinion of the impression that the testimony made upon his mind so long as he left the decision of the questions of fact involved in the case to the jury. Castner v. Sliker, 33 N. J. Law, 507; State v. Hummer, 73 N. J. Law, 714, 65 Atl. 249. The judgment will be affirmed, with costs. (90 N. J. Law, 147) (No. 102.) SHAW v. BENDER. (Court of Errors and Appeals of New Jersey. March 5, 1917.) (Syllabus by the Court.) 1. LIBEL AND SLANDER 6(1)—WORDS ACTIONABLE PER SE-WORDS IMPUTING DISREPUTATION-DEFAMATORY WORDS." Whenever words clearly sound to the disreputation of the plaintiff, they are defamatory on their face, and actionable per se. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 6, 82, 10, 15. For other definitions, see Words and Phrases, First and Second Series, Defamatory Words.] WORDS AC-famatory sense, and, further, that no special 2. LIBEL AND SLANDER 33 A suit lies for words actionable per se with out proof of special damage. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 112, 277.] 3. TRIAL 143-PROVINCE OF JURY-CONFLICTING EVIDENCE. Conflicting testimony is always for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 342, 343.] 4. APPEAL AND ERROR OF GROUNDS OF REVIEW. 169-PRESENTATION A question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034.] 5. PLEADING 79-ANSWER-DEFENSES. The present practice requires that a defendant's answer must specifically state any defense which, if not stated, would raise issues not arising out of the complaint. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 160, 161, 1621⁄2.] damage was alleged to have resulted to the plaintiff as a consequence of the words al leged to have been spoken, and that for want of such averments no cause of action was declared. (2) That the several allegations in the counts were wholly false in fact and untrue. The action was tried in the Atlantic counand resulted in a verdict in favor of the ty circuit court before Carrow, J., and a jury, plaintiff and against the defendant, upon which judgment was duly entered, with costs. The defendant appealed to this court from the whole of the judgment: (1) Because the trial court refused the defendant's request to nonsuit the plaintiff at the close of her case; (2) because the court refused to nonsuit at the close of the defendant's evidence; and (3) because the court erred in charging the jury in certain particulars. 1. As to the motion to nonsuit: The plaintiff testified that on November 6, 1914, in the Appeal from Circuit Court, Atlantic County. defendant's house in Atlantic City, in the Action by Mary Shaw against Ella A. presence of the defendant's brother, Mr. ColBender. Judgment for plaintiff, and defend-ligan, and of Mrs. Scanlan and several others, ant appeals. Affirmed. Bolte, Sooy & Gill, of Atlantic City, for appellant. Lee F. Washington, of Atlantic City, for appellee. * she, the defendant, said to the plaintiff: "You God damn thief, you stole my sign; I want you to bring that sign back you stole last night. I said, 'Now, you be careful who you are talking to; I didn't steal your sign.' 'You are a God damn thief; you stole my sign; you stole my gas jets; you stole part of my new stove; you are nothing but a God damn thief.' She said I was so low I didn't know what I was, and she said I was nothing but a God damn common low prostitute. * She said Col. Kelly and I stole the sign last night. I said, 'I didn't see Col. Kelly last night.' She said, You are a God damn liar; he lives with WALKER, Ch. The plaintiff sued the defendant for damages for slander. The complaint contained two counts: (1) That on November 6, 1914, in the county of Atlantic, the defendant, in the presence of Rose Scanlan, William Colligan, and other persons, said to and of and concerning the plaintiff, | you.' "You (meaning the plaintiff) bring that sign This story was corroborated by Mrs. Scanback you stole last night, you and Col. Kelly; lan, who went with Mrs. Shaw to Mrs. Ben* you are a God damn liar; you der's. In this state of the proofs, the plainstole it out of that window last night; *** tiff rested, and the defendant moved for a you are nothing but a thief; you stole my nonsuit; the only ground approaching a reachair; you stole part of my new son therefor being counsel's assertion that range; you stole the gaslight out there was no damage alleged or proved. The of the dining room"-thereby stating that the court thereupon allowed the plaintiff to plaintiff was a thief and guilty of the crime amend her complaint in certain respects reof larceny. (2) At the same time and place, quested by her attorney, namely, by alleging in the presence of Rose Scanlan and William that, as a result of the language used, the Colligan and other persons, defendant said to plaintiff was injured in her reputation and and of and concerning the plaintiff, "You standing in the community, and that the (meaning the plaintiff) are nothing but a com- making of the statements damaged the plainmon low prostitute; you are so tiff in her business as a boarding house keepGod damn low you don't know what you are; er, and as a result of the speaking of the are you a liar; * he words the plaintiff was humiliated in her (meaning Col. Kelly) lives with you"-mean- feelings, as well as by the indignity of having ing thereby that the plaintiff was unchaste, the words spoken. The motion to nonsuit subject to the punishment inflicted upon com- was denied, with leave to renew it at the end mon prostitutes, and that the plaintiff was of the case. guilty of the crime of adultery or fornication with Kelly. Plaintiff alleged that the words were false and malicious, and demanded damages. * * Defendant answered: (1) That there was no allegation in either count that the words spoken, or any of them, were used in a de [1, 2] Whenever words clearly "sound to the disreputation" of the plaintiff, there is no need of further proof; they are defamatory on their face and actionable per se. Odgers' L. & S. *18. Spoken words are defamatory, when the imputation cast by them on the plaintiff is on the face of it so injurious [5] 4. It is argued in the brief of the appellant that the alleged slander was privileged. Privilege is not pleaded, nor is it assigned as a reason for reversal. Counsel for respondent makes the point that the question of privilege should not be considered by the court, inasmuch as it was not specially set up by the defendant in her answer. This is correct. The present practice requires that a defendant's answer must specifically state any defense which, if not stated, would raise issues not arising out of the complaint. The present case is within this provision. And in a case where defenses are not so pleaded they are not available on appeal. See Titus v. Penna. R. R. Co., 87 N. J. Law, 157, 161, 92 Atl. 944. Besides, the point is not available here, for the reason that the other ones not raised below are not. that the court will presume, without proof, [ by the appellant are three alleged errors that plaintiff's reputation has been thereby committed by the trial judge in charging the impaired, and one of the class of cases in jury; but, as no exception was taken to any which this presumption arises is where the part of the charge, these reasons for reversal words charge the plaintiff with the commis- are not available to appellant here. sion of a crime. Id. *53. Assuming that the defendant uttered the words alleged to have been spoken of and concerning the plaintiff, she charged her with the commission of two crimes, namely, larceny and adultery, or fornication, each of which is indictable under our statute. It is actionable to call one a thief, and no innuendo at all is necessary, as larceny is clearly imputed. Id. *105. Equally it is actionable to call a woman a prostitute, and no innuendo is necessary, as adultery or fornication is implied, according as the woman is married or unmarried. A suit lies for words actionable per se without proof of special damage. Johnson v. Shields, 25 N. J. Law, 116. It is specified as cause for reversal that a nonsuit should have been granted because the statements of the defendant were directed to the plaintiff personally and to no one else; hence the element of publication, which is the foundation of slander, was lacking. The trial court was not requested to grant a nonsuit on that ground; hence the question is not before us for determination. [4] A question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. State v. Heyer, 98 Atl. 413. [3] 2. As to the motion to nonsuit at the close of case: Mrs. Bender, the defendant, took the witness stand and testified that she never called Mrs. Shaw a thief or a prostitute. Mr. Colligan, defendant's brother, testified that he saw there was commotion in his sister's house, and went in and got between the women; that he did not hear his sister say anything, only heard Mrs. Shaw's tongue above them all. Other witnesses were called, who also gave only negative testimony, saying they did not hear Mrs. Bender use the slanderous language attributed to her. When the testimony was closed, counsel for the defendant addressed the court and said: The judgment must be affirmed, with costs. (90 N. J. Law, 93) MCALLISTER et al. v. ATLANTIC CITY. (Supreme Court of New Jersey. March 7, 1917.) (Syllabus by the Court.) 1. MANDAMUS 73(1)—MUNICIPAL CORPORA- Cent. Dig. 88 135, 144-146, 149.] 2. MANDAMUS ~3(2)—REMEDY-SCOPE of. A writ of mandamus will not issue to enforce a contractual obligation. In such case a private party has a remedy by an action for damages. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 8.] 3. MANDAMUS 165-PLEA-SUFFICIENCY. Objection to the legal sufficiency of a plea to an alternative writ of mandamus should be presented by demurrer and not by motion to strike out. The Practice Act of 1912 does not apply to pleadings resting on a prerogative "I am inclined to think that this case ought writ. to be dismissed without debate." The trial judge, regarding this as a renewal of the motion to nonsuit, which he had reserved, and treating it as a motion to direct a verdict for defendant, denied it, and the case went to the jury, who found for the plaintiff. The action of the trial judge was clearly right. The testimony for the defendant did no more than put the facts in dispute and thus raise a jury question. Conflicting testimony is always for the jury. Dickinson v. Erie R. R. Co., 85 N. J. Law, 586, 90 Atl. 305. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 3602-364.] Application by Richard McAllister and others for writ of mandamus against Atlantic City. On demurrer to plea to alternative writ of mandamus. Demurrer overruled. Argued November term, 1916, before GARRISON, PARKER, and BERGEN, JJ. C. L. Cole, of Atlantic City, for relators. Harry Wootton, of Atlantic City, and Gilbert Collins, of Jersey City, for respondent. BERGEN, J. The relators hold an alter 3. Among the causes for reversal assigned native writ of mandamus enjoining respond city can be required by mandamus to condemn land for park purposes, because it has acquired a part, or because of a covenant in a deed for some of the land. We do not think it can be. [1] In the first place, the law (P. L. 1894, p. 146) does not require the city to acquireit has the legal right, but is not compellable -and mandamus will only issue when the city refuses to perform an express legal duty, and there is in this case no such duty imposed. [2] In the second place the deed does not aid the relators, for the writ is never rested on a contractual obligation, in such cases the Mabon v. Halsted, 39 N. J. Law, 640. Again it will never compel what cannot lawfully be done, and in this plea it appears that the city has no funds to pay any award, and cannot raise it by a bond issue, as it would require a sum in excess of legal limit. ent to procure the title to all the land with- | pier as was within the park limits, unless all in the limit of a public park upon which a other piers within the limits of the park pier, known as "Heinz Pier," is located, by were acquired by condemnation; that the condemnation or otherwise, and to cause so city is not financially able to take over all much of the pier as is within the limits of the piers, as it would require a bond issue the park to be wholly removed therefrom. beyond legal limit, and that to condemn so The writ recites that in 1907 relators were much as is within relators' conveyance would the owners of a strip of land 80 feet wide, not accomplish the purpose relators seek. adjoining Rhode Island avenue, and extend- To this plea relators demur, and argue that ing southerly at that width to the exterior the presence of the pier within the boundaline established by the riparian commission-ries of the park is an obstruction in violation ers; that April 8, 1907, they conveyed to At- of the terms of the deed. This may be grantlantic City all their interest in said land, be-ed, and yet the question remains whether the ginning in the interior line of the public park of the city and running southerly to the said exterior line; that, as authorized by statute, the respondent, by ordinance adopted October 9, 1899, did establish the inland line of a park along the ocean front; that the aforesaid conveyance granted the interest conveyed, for and only for, use as a public park except that the city might maintain along the interior line an elevated public boardwalk; that the grantee covenanted that the lands granted and dedicated to public use should forever be and remain open, so that the view oceanward from the elevated public walk should be free, open, and unobstructed, and that no use should be made of the land in-private party has his action for damages. consistent with its use as a public park; that when the deed was delivered there existed a pier known as "Heinz Pier," connected with the boardwalk and extending into the ocean about 500 feet on which are two inclosed pavilions, one within and the other without the park limits, but neither on the land granted to the city by the relators, but that about 100 feet of the pier crosses a corner of said land; that the city is the owner of all the land within the park limits except the Heinz, and three other like piers, and what is called the Lindley tract, and that relators have requested respondents to acquire and remove so much of the Heinz Pier as is within the limits of the park, which request has not been complied with. The city filed a plea, setting up that the determination of the question of the necessity of procuring title to land for a park is vested in the city and not subject to mandamus; that (Court of Errors and Appeals of New Jersey. the statute fixes no time for acquiring the land; that when relators conveyed, that portion of the structure they now seek to remove was on the land; that relators have, since giving the deed, consented to the continuance of the platform, and have collected rent for the use of it by the Pier Company; that in 1885 the city authorized the construction of the pier and it was in existence when relators conveyed, subject to an agreement dedicating a strip 60 feet wide for the boardwalk; that the boardwalk was moved oceanward, owing to accretions, which required the destruction of 300 feet of the pier, and the city agreed with the Pier Company that it would not interfere with so much of the [3] A notice to strike out the plea was given, as well as demurrer thereto, and the question was raised as to which was proper. We are of opinion that, this being a proceeding resting on a prerogative writ, the Practice Act of 1912 does not apply, and that the objection should be raised by demurrer and not by motion to strike out. The demurrer will be overruled. (90 N. J. Law, 235) SHOEFFLER v. PHILLIPSBURG HORSE CAR R. CO. (No. 106.) 1. TRIAL March 5, 1917.) (Syllabus by the Court.) 295(1)-INSTRUCTIONS-REVIEW. An excerpt from instructions to a jury upor which error is assigned must be read in connec tion with the context and if, when taken together, no error appears, the excerpt alone will not support the assignment. [Ed. Note.-For other cases, see Trial, Cent. Dig. §8 703, 704, 713, 714, 717.] 2. CARRIERS 384(1)-CARRIAGE OF PASSEN GERS-TRIAL-INSTRUCTIONS. The trial court in charging the jury as to the amount of force to be used in ejecting a passenger improperly on defendant's car said, by way of illustration, that if a passenger refused to leave the car "and he pushed him off, that is all that would be necessary." that this was not an instruction that defendant Held, might push a passenger off the car regardless of consequences, the words, "would be necessary," meaning, in the connection used, that if the push accomplished the ejection, that was all the force defendant was permitted to use. In other words the defendant had used all the force that was necessary under the conditions stated. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1497.] Appeal from Circuit Court, Warren County. Action by George W. Shoeffler against Phillipsburg Horse Car Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed. William C. Gebhardt, of Jersey City, for appellant. William H. Walters, of Phillipsburg, and William H. Morrow, of Belvidere, for appellee. BERGEN, J. The defendant operates a street railway, and one of its rules requires passengers to enter their cars through the rear door except during hours when the conductor is required to leave it to change a derailing switch at a steam railroad crossing. Plaintiff attempted to enter by the front door during the period when all passengers were required to board it in the rear, and the motorman told him to get off and get on the other end, which request he refused, and the motorman pushed him off. Plaintiff claims that more force was used than was necessary, causing injuries for which he brought a suit, resulting in a judgment for defendant, from which plaintiff appeals. The principal ground urged in support of the appeal is that the rule was an unreasonable one, and that therefore the court erred in charging the jury that the motorman had the right to use as much force as was necessary to remove plaintiff from the front end of the car; and, second, in charging that defendant had a right to push the plaintiff off without any warning that he intended to do it. That plaintiff knew that there was such a rule appears from his testimony, which was, in part, as follows: push him off without regard to consequences. An excerpt from a charge to a jury must always be read in connection with its context, and in doing so in this case we find that the court was instructing the jury concerning the necessary force required in a given case, and that if there be resistance, the force is to be measured by the amount of the resistance, and by way of illustration said that if a motorman requested a person to get off and enter by the rear door, and the request was complied with, there would be no need of force beyond the request, and then follows what is above quoted, which amounts to nothing more than saying that if there was a refusal, and a push was sufficient to put him off, the push would be all the force which the circumstances justified. It was not an instruction that a push was justifiable under all circumstances. The question whether more force was used than necessary to induce plaintiff to comply with the rule was distinctly left to the jury. The second proposition that the court charged that defendant had a right to push plaintiff from the car without warning is without merit. No such instruction appears in the charge and no request to charge that warning was required was submitted, and if it had been it would have been properly refused, for plaintiff testified that he knew the rule required him to enter by the rear, and that he was requested to comply with that rule. There is no error in the charge to which any exception was taken and noted on the record. The other points argued relate mainly to the weight of the evidence which cannot be considered on this appeal. The judgment under review is affirmed, with costs. (90 N. J. Law, 315) COLLETTO v. HUDSON & M. R. CO. (No. 156.) March 5, 1917.) "Q. You understood it was his wish for you to go to the rear of the car and get on? A. I (Court of Errors and Appeals of New Jersey. presume that is true. Q. And you knew that was just according to the notice on the car, that you should enter by the rear door, didn't you? 1. CARRIERS 302(3)-INJURY TO PASSENA. Yes, sir." The court charged that the rule was a reasonable one, and no exception was taken to this; the exception being limited to that part which instructed the jury that defendant's servant had the right to use reasonable force to carry it out. The part of the charge which the plaintiff most complains of is this: "Or if a man got on the car and the motorman said, 'Get off and go to the rear door,' and he said, 'I don't feel like it,' and he pushed him off, that is all that would be necessary." [1, 2] From this plaintiff argues that the court told the jury that the motorman had a right to push the plaintiff off the car, not merely to use as much force as was necessary to remove defendant from the car, but to GER-NEGLIGENCE. Where a door of a car was pushed open but not far enough to lock, so that when the car was going round a curve, and a passenger's hand was thrown against the door jamb, the door ble to do, if unlocked, though there was no unclosed on it, as it might be inferred it was liausual lurch, the carrier could be found negligent. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1223.] 2. CARRIERS 347(6)—INJURY TO PASSENGER -CONTRIBUTORY NEGLIGENCE. A passenger required, because of the crowd, to stand near the car door, and who, to steady himself, when thrown off his balance by the car going round a curve, put his hand on the door jamb, on which the door closed, was not guilty of contributory negligence as matter of law, he having a right to assume the open door was |