STATE v. TIETJEN.

(107 A.)

(Supreme Court of New Jersey. June 5, 1919.)

1. CRIMINAL LAW 1144(8) — REVIEW-EXCUSE OF JURORS-ASSUMPTION.

In the absence of anything to the contrary, it is not to be assumed that the excusing of certain jurors without specifying any ground for the action had any relation to their having been members of a jury which in an earlier capital case returned a verdict of acquittal.

2. CRIMINAL LAW 1144(8)—REVIEW-PRE

SUMPTIONS-EXCUSE OF Jurors.

If the trial court was moved to excuse certain jurors because they were members of the jury which in a prior capital case had returned a verdict of acquittal, it does not necessarily follow that the judicial discretion was improperly exercised; the presumption being that the court acted in the performance of judicial duty, and the burden resting on defendant to overcome the presumption.

3. CRIMINAL LAW 1035(5) RIGHT TO COMPLAIN OF JURY.

APPEAL

A defendant cannot submit to be tried without objection before a jury whose impartiality is not challenged, and take the chances of being acquitted, and afterwards be heard to complain of the method by which the jury was selected; the verdict having gone against him.

The plaintiff in error concedes that the excusing of a juror whose name has been drawn from the box is a matter resting in the discretion of the trial court, and does not contend that the court, in the exercise of this discretion, must express its reason for the judicial act. On the contrary, he admits that the principle controlling in matters of this kind is that laid down by this court in State v. Lang, 75 N. J. Law, 1, 66 Atl. 942, viz.: That they must necessarily be left largely to the discretion of the trial judge; that unless it be made plain that he has abused this discretion, and that the defendant may have suffered injury thereby, the propriety of the judicial action cannot be challenged upon review. He asserts, however, that the reason which moved the court to excuse these jurors was that they had joined in the rendition of a verdict of acquittal in the capital case above referred to; that such a reason affords no just ground for excusing them; and that in doing so the court abused the discretion vested in it.

[1, 2] This contention is without merit for two reasons: First, there is nothing in the case to support the presumption that the judicial action rested upon any such ground. In the absence of anything to the contrary, it is not to be assumed that the excusing of these jurors had any relation to their conduct in the earlier case. Second, even if it

Error to Court of Quarter Sessions, Hud-be assumed that the court was moved to exson County.

William Tietjen was convicted of unlawfully carrying a concealed weapon, and he brings error. Affirmed.

cuse these jurors because of their conduct in the earlier case, it does not follow that the judicial discretion was improperly exercised. The presumption is that the act complained of was done in the proper perform

Argued February term, 1919, before GUM-ance of judicial duty, and the burden rests MERE, C. J., and SWAYZE and TRENCHARD, JJ.

Alexander Simpson, of Jersey City, for plaintiff in error.

Pierre F. Garven, Prosecutor of the Pleas, of Bayonne, for the State.

GUMMERE, C. J. The plaintiff in error was convicted in the sessions of the crime of unlawfully carrying a concealed weapon. His contention that the judgment brought up by the writ should be reversed rests upon a single ground, viz., that in drawing the jury for the trial of the cause the court excused, as they were called, certain jurors, without specifying any ground for the judicial action.

It is stipulated by counsel that the jurors thus excused had on the previous day served upon a jury in a capital case, and that the verdict in that case was one of acquittal.

upon the defendant to overcome that presumption, by showing affirmatively that there was an abuse of discretion on the part of the trial court. State v. Lang, supra. No attempt was made to discharge that burden.

[3] But even if we had reached a contrary conclusion, on this question, it would not inure to the benefit of the defendant. He made no objection to the excusing of these jurors, and sat silent while the box was being filled up from members of the panel subsequently drawn. He went to trial before the jury which was finally selected, and took the chance of being acquitted by that jury. A defendant cannot submit to be tried without objection before a jury whose impartiality is not challenged, take the chance of being acquitted, and afterward be heard to complain of the method by which it was selected, in case the verdict goes against him. The judgment under review will be affirmed.

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HOUGH v. HELLER BROS. CO. (No. 102.) (Court of Errors and Appeals of New Jersey. March 3, 1919.)

MASTER AND SERVANT

302(5)-INJURIES TO THIRD PERSON-SCOPE OF EMPLOYMENT. Where an employé assisting in loading a truck, the tailboard of which was down obstructing the sidewalk, lifted the tailboard to permit the passage of a pedestrian who was injured when the tailboard fell, the employer was liable, though the lifting of the tailboard was done merely out of politeness.

Appeal from Circuit Court, Hudson County.

Action by Alita E. Hough against the Heller Brothers Company. Judgment for plaintiff, and defendant appeals. Affirmed. Kellogg & Chance, of Jersey City, for appellant.

W. Howard Demarest, of Newark, for respondent.

SWAYZE, J. The plaintiff was injured while traveling along the sidewalk by the defendant's factory. A truck of a transportation company was at the time backed up and in process of loading. One O'Neill, an employé of Heller Brothers Company, was assisting at this work. The tailboard of the truck was down, projected over the sidewalk, and obstructed passage of the plaintiff. O'Neill lifted it to permit plaintiff to pass. The jury might have found that it then fell without fault of the plaintiff and caused the injuries for which she sues.

The only grounds of appeal are the refusal to nonsuit and to direct a verdict for defendants. The basis of defendant's appeal is that O'Neill was not at the time engaged in

the defendant's business. It is said that raising the tailboard of the truck was no part of his duties. To us it seems that it was incidental to his work of assisting in loading the truck; it was done to prevent this work from interfering with the rights of the public to pass on the sidewalk. Even if done merely out of politeness, the act was none the less done in furtherance of the work. We can not assume that the defendant meant that the ordinary acts of courtesy should not be performed on its behalf, where the need arose from the transaction of its business.

Let the judgment be affirmed, with costs.

T. J. PARKER, Inc., v. ANTHONY-HAM-
MOND CHEMICAL WORKS.
(Supreme Court of New Jersey. June 5, 1919.)
1. ATTACHMENT ~8 UNLIQUIDATED DAM-

AGES.

Suit for damages for failure to deliver goods pursuant to executory contract of sale was for

unliquidated damages, though plaintiff purchased from others at a higher price more than a month after time for completion of delivery had elapsed, since whether the price paid was the fair market value at time of delivery, and whether goods purchased were of the same character and value as those contracted for were questions for jury.

2. SALES 418(2) BREACH BY SELLERMEASURE OF DAMAGES.

Ordinarily, the difference between the contract price and the value of the goods at the date fixed for delivery is the measure of dam

ages.

Appeal from Circuit Court, Hudson County.

Suit by T. J. Parker, Incorporated, against the Anthony-Hammond Chemical Works. From order quashing writ of attachment, plaintiff appeals. Affirmed.

Argued February term, 1919, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ.

George W. Flaacke, of Jersey City, for appellant.

Fred G. Stickel, Jr., of Newark, for respondent.

GUMMERE, C. J. This is an attachment suit. The affidavit upon which the writ was issued was made by one Burke, the vice president and treasurer of the plaintiff corporation. In it the affiant declares:

"That Anthony-Hammond Chemical Works, Inc., is indebted to the plaintiff, T. J. Parker, Inc., in the sum of $5,000, with interest thereon, from the 1st day of January, 1918; said company is not created or recognized as a corporation of this state (state of New Jersey) by the laws of this state."

After the writ was returned, there was a motion to quash, and a rule to show cause was allowed with leave to both parties to take testimony. Upon the return of the rule, and the reading of the depositions taken under the leave granted, the court reached the conclusion that the writ was improperly issued, for the reason that the damages for the breach of the contract, which was the basis of the litigation, were unliquidated, and an order was thereupon entered quashing the writ. The plaintiff appeals from this order.

The plaintiff's case, as exhibited by the depositions, was that it entered into a contract with the defendant for the sale and delivery of 2,000 pounds of benzoic acid at the price of $2 per pound; the delivery to be made in parcels of 500 pounds each, and was to begin on the first week of December, 1917, and to continue each week thereafter until the delivery was complete. The defendant failed to perform the contract, and plaintiff seeks to recover the damages sustained by it by reason of this failure of performance.

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(107 A.)

On its face this is an action for unliqui- | testimony having been returned with a suppledated damages; but the plaintiff's claim is mental report of the master to the effect that that after the breach of the contract it went he considered that a case had been made out, into the market and purchased 2,000 pounds the entire record was considered and a decree of benzoic acid at $4.75 per pound, and that the damages, therefore, in this particular case, were thereby liquidated; the sum due being the difference between the contract price of $2 and the purchase price of $4.75.

2. DIVORCE 150(1)-DESERTION EVIDENCE dissatisfaction with him on religious grounds.

In this case exceptions having been filed to "Fred, please don't blame my people for this an adverse report, the hearing brought on under because they don't know anything about it. Rule 113, an order having been made permit- Good-bye. I will leave this bill here for you ting petitioner to take additional testimony be- to pay. You can afford to pay it. You have fore the master and permitting the master to re- money in the bank and all the furniture. I turn a supplemental report, and the additional have nothing but a few cents.

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Petitioner was corroborated by the testimony of the sister-in-law of defendant as to the fact of desertion and its continuance; also with respect to there being difficulty between the parties caused by their difference in religion, There was no direct corroboration of any attempt on the part of the husband to induce his wife to return. He testified that some weeks after her leaving he met her on the street and asked her to return, and that she refused, and that he then took her at her word. He also testified as to having sent her a letter in January, 1914 (neither the letter nor a copy thereof was produced), and that he received no reply. The only witness produced before the master on the supplemental proceedings was the wife, who was forced to appear by subpoena. She testified that she left her husband on January 7, 1914; that she had definitely made up her mind to leave and never return; that about two months after leaving she met her husband on the street; that he talked to her and asked her to come back, and that her answer was, "No, she would not live with him"; that she was dissatisfied with him. She also testified as to the receipt of the letter of January 25, 1914, and that she never replied to it, and that the reason was that he asked her to see him and she did not want to have anything more to do with him; that no matter what course of procedure her husband might have taken she would, under no circumstances, have gone back to him; that she did not and does not care to live with him. She was examined to a considerable extent by the master, and denied that she had had any communication whatever with her husband or any one representing him, or that she had been asked to testify, or that she knew of the effect her testimony would have upon her husband's case, and she said that she would testify in any event just as she did because it was the truth, and that she did not care what effect it had upon the case. She declined to say what the difficulty between her husband and herself was except:

"A. My husband drank, and there are other things that I don't feel like mentioning, which caused me to make up my mind to leave him, and never return. My mind was firmly fixed on going away, but I don't care to bring up these things."

And further:

"I do not care to state what they are (referring to her reasons for leaving). They are of a private nature, and I don't feel that I ought to be compelled to say anything about

them if I don't care to. I came to this place because I was subpoenaed, and not because I wanted to come, and I don't think that I ought to be made to talk about things that are private to me, and that I have tried to forget."

The letter was produced in which the husband asked his wife to return, and indicated that he believed that she was not to blame for the separation, but that she had been influenced by others.

[3] It is the rule that a divorce will not be granted upon the uncorroborated testimony of the husband and the wife. Garrett v. Garrett, 86 N. J. Eq. 293, 98 Atl. 848. This rule was last recognized by the Chancellor in Bolmer v. Edsall (Bolmer) 106 Atl. 646, not yet officially reported. The Chancellor, however, in that case recognizes that corroboration of each essential fact need not necessarily be by the testimony of other witnesses, and I have recently dealt with the question in Parmly v. Parmly, 106 Atl. 456, not yet officially reported. Although the English courts have generally the same rule with respect to granting relief in divorce cases on uncorroborated evidence, the trend of opinion with respect to the application of the rule in England is illustrated by the following cases: Curtis v. Curtis, 21 Times L. Rep. 676; Getty v. Getty, 98 L. T. Rep. 60 (1917) p. 334; Weinberg v. Weinberg, 27 Times L. Rep. 9; Riches v. Riches (Mr. Justice Coleridge), not yet reported. It may now, I think, be considered as well settled that corroboration may be by circumstances, as illustrated in the cases referred to in Parmly v. Parmly, as that relief will not be granted upon uncorroborated testimony. Considering the present case, the master may have been justified in holding that the testimony of the husband, corroborated only to the extent that it is by the testimony of the sister-in-law of the wife, was not sufficient, and it may well be that the testimony of the wife, corroborated only to the extent that it is by the testimony of her sister-in-law, may not be sufficient; but, when the testimony of the husband and wife are both considered corroborated to the extent that they are by the testimony of the sister-in-law, then I think a case has been made out sufficiently corroborated. The testimony of the sister-in-law indicates quite clearly that it is probable that the testimony of the wife and husband correctly represents the facts. The manner in which the wife's testimony was secured and the manner in which she gave it is entitled to consideration. We have also the letter written by the husband unanswered by the wife. I will advise a decree nisi.

(107 A.)

band around the neck; she went to his assistance with a club, struck Vanderveer, and killed him.

The substantial defense was that she was acting in defense of her husband.

[1] The trial judge correctly limited her rights to those which the husband himself had, but he stated the husband's rights too narrowly. He charged that the jury had to consider, not what she or her husband thought, but what the jurors found to be the fact, and put the specific questions: Was the husband in serious bodily danger? Was he in danger of his life? Or was he in danger of serious bodily injury to himself? The judge then added: Was her husband in such serious danger, in dire peril, at that time, or in danger of receiving serious bodily injuries, that it justified her in taking this club and using it as she did? He then charged specifically that

"If he were not in serious danger of dire peril or serious bodily danger, she had no right to do that; she had no right to use any kind of an instrument or club on this deceased, if her husband were not in that condition at that time; she had no right to do it, if her husband

3. HOMICIDE 301-DEFENSE OF HUSBAND Could with safety have retreated at that mo-INSTRUCTION.

In prosecution for manslaughter in which defendant's defense was that she acted in defense of her husband, the court erred when stating the duty of the husband to retreat in omitting necessary qualification that he might retreat with safety.

4. CRIMINAL LAW

ment; and if her husband could have retreated at that moment without being in dire peril or without being in danger of serious bodily injury to himself, and if she then used that club, she should be found guilty under the law."

[2] The vice in the charge is that it leaves out of account a situation where the hus761(6)-WHO IS AG- band was not in fact in serious danger as

GRESSOR-QUESTION FOR JURY.

In prosecution for manslaughter in which defense was that defendant wife acted in defense of her husband, the court erred in stating as a fact that husband was the aggressor and not leaving that fact to the jury.

Error to Court of Quarter Sessions, Hudson County.

Mary Lionetti was convicted of manslaughter, and she brings error. Judgment reversed, and record remitted for new trial.

Argued February term, 1919, before the CHIEF JUSTICE, and SWAYZE and TRENCHARD, JJ.

Alexander Simpson, of Jersey City, for plaintiff in error.

Pierre F. Garven, Prosecutor of the Pleas, of Bayonne, for the State.

the jury, in the deliberation of the trial upon evidence of all the circumstances, might find, but where the force used in defense "reasonably appeared" in the heat of the trouble to be necessary to preserve the husband's life or to protect him from serious bodily harm. State v. Bonofiglio, 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423; State v. Mount, 73 N. J. Law, 582, 64 Atl. 124. The error was not cured by the court later in the charge telling the jury that the defendant had the right to protect her husband if they found that the facts justified her in "believing" that he was in dire peril or in danger of serious bodily harm. The two passages in the charge are inconsistent, and we cannot know by which the jury was guided. This error requires a reversal.

We think it well also to call attention to two other slips in order that on the re

SWAYZE, J. The defendant was convict- trial they may be avoided: ed of manslaughter.

[3] 1. In stating the duty of the husband The essential facts are as follows: She to retreat, the judge at one point of the thought a man named Vanderveer was look charge omitted the necessary qualification ing at her in an improper way and com- that he might retreat with safety. State v. plained to her husband. He crossed the Di Maria, 88 N. J. Law, 416, 97 Atl. 248. street and engaged in a controversy with He was probably misled by the headnote in Vanderveer, which resulted in a fight. The that case; the law is correctly stated in the defendant says that Vanderveer got her hus- opinion.

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