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"The natural tendency of the changes describ- [ contracts with the other companies to whose ed 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 employés of the Stevedoring Corporation, of whom the plaintiff was one.

In Robinson v. Baltimore & Ohio R. R. Co., 237 U. S. 84, 35 Sup. Ct. 491, 59 L. Ed. 849, it was held that a Pullman porter is not an employé 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 employés. The contract exempting the Pullman Company and the carrier from liability was upheld.

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 employé 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."

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 employé of the railroad, it follows that the plaintiff

here cannot recover because not an employé 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 In Chicago, Rock Island & Pacific R. R. Co. v. Bond, 240 U. S. 449, 36 Sup. Ct. 403, 60 L. cannot say that the contract was one which Ed. 735, an individual independent contractor the parties were incompetent to make. By it was killed while in the railroad company's the defendant railroad did not undertake to yard, in which, under his contract, he was un-relieve itself from responsibility as a common loading 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 employé, and not in fact an independent contractor. ing the trial court, who submitted to the jury the question whether or not the decedent was an employé of the company, Justice McKenna

In revers

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 employés. 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 "We do not think that the contract can be immaterial. These men were not obliged to regarded as an evasion of section 5 of the Em-work for the Railroad Stevedoring Corporaployers' Liability Act. * Turner [decedent] was something more than a mere shov- tion, but it was quite natural that they should eler of coal under a superior's command. He have been offered such employment, in view was an independent employer of labor, conscious of their experience in that line of work. 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

said:

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

The CHANCELLOR, and SWAYZE, MINTURN, KALISCH, and BLACK, JJ., dissent.

(90 N. J. Eq. 230)

(106 A.)

GIHON et ux. v. MORRIS et al. (No. 30.)

July 12, 1917, the present bill was filed to rescind the deed of the defendant James H. Morris to the complainants, and to recover

(Court of Errors and Appeals of New Jersey. back the money paid, on the ground that the

March 5, 1919.)

(Syllabus by the Court.)

1. VENDOR AND PURCHASER 112(1)-COVENANTS FOR TITLE-DEFECT IN TITLE-RE

SCISSION.

A vendor conveyed land with full covenants for title. The vendees took and retain possession; after some years they filed a bill to rescind for an alleged defect in title; there was no fraud. Held, that the vendee cannot rescind and recover the purchase money, but must be content with his rights under the covenants

for title.

2. VENDOR AND PURCHASER 112(1) — VALIDITY OF GRANTOR'S TITLE-CHANCERY JURISDICTION.

The Court of Chancery was called on to determine merely the validity of a legal title, and to declare it bad before an actual eviction and before it can be known whether there can ever be an actual eviction, and in a case where actual events may at any moment make the title good. Held, that the court is without jurisdic

tion in the absence of fraud.

Parker and Taylor, JJ., dissenting.

Appeal from Court of Chancery.

Bill by Harry D. Gihon and wife against James H. Morris and others to rescind a conveyance and to recover back purchase money. From a decree for complainants, advised by the Vice Chancellor (105 Atl. 455), defendants appeal. Bill dismissed.

F. W. Gnichtel, of Trenton, for appellants. Martin P. Devlin, of Trenton (John H. Kafes, of Trenton, on the brief), for re spondents.

SWAYZE, J. On September 26, 1908, James H. Morris conveyed to Harry D. Gihon and his wife a tract of land in Trenton. The deed contained the covenants of seisin, power to convey, quiet enjoyment, against incumbrances, and of warranty. The grantees took possession and have held it ever since. The title came through the will of Donoghue, who had devised the land to his wife for life and after her death to their five chil dren. His will provided that if either of the children be deceased at his wife's death, and leaving lawful issue, the survivors should take the whole estate. The widow and three of the children are living. They conveyed the property in 1906 to one of the defendants with the usual covenants. On

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title was defective and that the defendants had at the time of the conveyance represented that the title was all right and that an examination by counsel was unnecessary. The Vice Chancellor found that there was no fraud; and this finding was clearly correct.

[1] The case is the ordinary one of a grantor believing that he had a good title, when in fact his title was defective, and giving the vendee full covenants for title. The Vice Chancellor, however, thought that there was a mistake, and decreed in favor of the com

plainants. He relied on Eibel v. Von Fell, 55 N. J. Eq. 670, 38 Atl. 201; Dubois v. Nugent, 69 N. J. Eq. 145, 60 Atl. 339; Straus v. Norris, 77 N. J. Eq. 33, 75 Atl. 980. But none of these authorities are applicable to a case where both the vendor, by giving covenants for title, and the vendee, by accepting them, recognize that the title may be defective and that it is the duty of the vendor to make it good. It follows as a corollary that the vendee must be content with his rights under the covenants for title, and cannot rescind and recover the purchase money. It must be assumed until the contrary appears, that the vendor will make good his covenants and thus fully perform the contract on his part, if the title eventually proves defective. Moreover, before there can be a rescission for mistake, it must appear that the vendee relied on the representations of the vendor as to title instead of on the covenants, and this can seldom be, since the very object of the covenants is the protection of the vendee; it is generally, as in this case, the covenants on which he relies, not the prior parol statements, which are, so to speak, merged in the covenants. The law has long been settled in this court. Waddell v. Beech, 9 N. J. Eq. 793. The opinion cites the earlier New York cases decided by Chancellor Kent. Waddell v. Beech arose on a crossbill in a foreclosure suit, and there was, therefore, no question of the jurisdiction of equity.

[2] In the present case the Court of Chancery is called on to determine merely the validity of a legal title, and to declare it bad before an actual eviction, and before it can be known whether there can ever be an actual eviction. Actual events may at any moment make the title good. The Court of Chancery has no jurisdiction in such a case in the absence of fraud.

The bill must be dismissed, with costs.
PARKER and TAYLOR, JJ., dissent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(92 N. J. Law, 529)

JENSEN v. F. W. WOOLWORTH CO. (No. 90.)

(Court of Errors and Appeals of New Jersey. Feb. 6, 1919. Amplified Opinion, March 3, 1919.)

In the Supreme Court the following per curiam was filed:

"The certiorari in this case was allowed to review the determination of the Morris county court of common pleas commuting a judgment under the Workmen's Compensation Act from $1,410, payable in installments, at $5 per week,

1. MASTER AND SERVANT 385(20)-WORK-to $1,247.25, in addition to $590 already ac

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COMMUTATION OF

AWARD-"UNUSUAL CIRCUMSTANCES.'

That a petitioner for commutation of an award under Workmen's Compensation Act, who had accidentally swallowed pins while trimming a show window, was thereby rendered helpless and bedridden, and that a surgical op eration was necessary to save her life because of a pin near the base of the brain, was an "unusual circumstance," warranting commutation of future weekly payments into a lump sum, within Act April 4, 1911 (P. L. p. 143) § 2, par. 21, as amended by Act April 1, 1913 (P. L. p. 309) § 6.

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That the concluding provision of Act April 4, 1911 (P. L. p. 143) § 2, par. 21, as amended by Act April 1, 1913 (P. L. p. 309) § 6, relating to Workmen's Compensation, provides that commutation of an award shall not be allowed

crued and $50 allowed for medical and hospital services and medicines. The petitioner was injured on May 21, 1915, while in the employ of the defendant, accidentally swallowing pins, while assisting in trimming a show window, on May 21, 1915.

"The rule to be followed by the courts for commutation of compensation is laid down by the Legislature in P. L. 1913, p. 309. The order of commutation was made in accordance with the provisions of the statute, and there was sufficient evidence before the court to support the order under review. These are the two points argued in the prosecutor's brief.

"The judgment of the Morris county court of common pleas is affirmed, with costs.

M. Casewell Heine, of Newark, for appellant.

Benjamin F. Jones, of Newark, for respondent

PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court. More amplified views will be set forth in an opinion to be filed.

Amplified Opinion.

This case came up on certiorari to the Supreme Court to review the judgment, order, and proceedings of the Morris county court of common pleas upon a petition praying for commutation of an award of compensation granted to petitioner under the Workmen's Compensation Act. Petitioner's injury result183-CONSTRUCTION-INTEN- ed from the accidental swallowing of pins on

for the purpose of enabling the injured employé
to satisfy a debt or to make payment to physi-
cians, lawyers, or any other persons, does not
defeat commutation, where unusual circum-
stances exist, requiring payment to physician to
save the employé's life.
4. STATUTES

TION OF ACT.

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March 21, 1915, while in the employ of respondent.

The court of common pleas of Morris county determined in the compensation proceedings that petitioner suffered a disability total in character and permanent in quality, and decreed compensation payable at the rate of $5 a week for not more than 400 weeks. On September 21, 1917, petitioner filed a verified petition, praying for commutation into a lump sum payment of balance of compensation by respondent to petitioner.

The court thereupon, after hearing the testimony of Dr. James F. Horn, on behalf of the petitioner, filed findings of fact and an order commuting into a lump sum payment the balance due under the original award. The Supreme Court affirmed this order of the court, and from this order and judgment an | appeal is taken to this court.

(106 A.)

WALKER, Ch. The appellant makes four points on this appeal, and argues them under two heads, namely: (1) That the order commuting the award of compensation is contrary to the provisions of the statute (P. L. 1911, p. 134, § 2, par. 21, amended P. L. 1913 p. 302, § 6); and (2) that there is no evidence to support the finding of the common pleas upon which commutation was based.

The Supreme Court in a per curiam remarked that the order of commutation was made in accordance with the provisions of the statute, and that there was sufficient evidence before the court to support the order reviewed, and affirmed the judgment of the Morris pleas. Dr. Horn, who gave evidence for the petitioner on this application, testified that she was in bed in a helpless condition, and has required the constant attention of nurses; there is a pin near the base of her brain, and that in his opinion an operation will have to be performed to save her life; she is in need of constant care and attention, and unless she receives the same her life cannot be saved.

[1, 2] The statute provides, among other things, that, as commutation is a departure from the normal method of payment, it is to be allowed only when it clearly appears that some unusual circumstances warrant such a departure. If to be bedridden, with the requirement of a surgical operation to save the patient's life, is not an unusual circumstance, and such an one as warrants commutation of future weekly payments into a lump sum, to enable the patient to procure the services of a surgeon and the proper medical attention and nursing, it is hard to conceive of circumstances that would call for the making of an order for commutation. It is plain, therefore, that there was sufficient evidence before the Morris pleas to support the order, as was said by the Supreme Court, and it is familiar doctrine that on appeal in these cases the findings of fact in the common pleas are conclusive, if there be any evidence to support them. Sexton v. Newark Dist. Tel. Co., 84 N. J. Law, 85, 86 Atl. 451; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203. That Dr. Horn's testimony was at least some evidence to support the finding of the pleas is too plain for argument.

The only other contention is that the order commuting the award is contrary to the provisions of the statute. So much of the section (P. L. 1911, p. 134, § 2, par. 21, amended P. L. 1913, p. 302, § 6) as applies, reads as follows:

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or that it will avoid undue expense or undue hardship to either party, the judge of the court of common pleas will constantly bear in mind that it is the intention of this act that the compensation payments are in lieu of wages, and are to be received by the injured employé * in the same manner in which wages are ordinarily paid. Therefore commutation is a departure from the normal method of payment, and is to be allowed only when it clearly appears that some unusual circumstances warrant such a departure. Commutation shall not be allowed for the purpose of enabling the injured employé to satisfy a debt, or to make payment to physicians, lawyers, or any other persons."

* *

Many, if not all, of the statutes have statutory provisions for the commutation of weekly payments into gross sums; but we have pointed to none, nor have we found any, which is similar to ours, nor has ours been construed with reference to any given circumstances making a case falling within its provisions. We are therefore confronted in the case at bar with a question of novel impression.

Going now to the letter and spirit of section 6 of the act of 1913, amending section 2, par. 21, of the act of 1911, we find that the court may order commutation if it appear that it will be for the best interest of the employé. Surely it will be for the best interest of Miss Jensen to be placed in funds which it appears may save her life, rather than that she be compelled to take the chance of almost certain death without them. Then, too, commutation may be made to prevent undue hardship. The same reasoning applies.

Bearing in mind that it is the intention of the act that compensation payments are in lieu of wages, and are to be received by the injured employé in the same manner in which wages are ordinarily paid, that is, in installments, and while commutation is a departure from the normal method of payment, to be allowed only when it clearly appears that some unusual circumstances warrant it, we think those circumstances are present in the case sub judice, namely, that the life of the employé appears to be at stake, and that, at least in all probability, it can only be saved by a surgical operation, by the attendance of a physician, by nursing, and by medicines, all of which will require the expenditure of moneys, which the patient does not possess and cannot raise.

[3] Commutation in these circumstances is not to be defeated by the concluding provision of the statute that it shall not be made to enable the employé to satisfy a debt, or to make payment to physicians, lawyers, or other persons. Of course, if the exception ended with the clause that commutation shall not be made to enable the party to pay a debt, it would be too plain for argument that no order could be made to enable an employé to discharge a sum already due and payable, and, when it goes on to provide that it shall

not be made to enable payment to physicians, | into a lump sum, in proper circumstances, is lawyers, or other persons, it might seem at not to be defeated by the provision that comfirst blush to prohibit the very thing sought mutation shall not be allowed to make payto be accomplished here, namely, to enable ment to physicians, lawyers, or other persons this unfortunate woman to secure the essen--not if unusual circumstances call for paytials to save her life. And such a construc- ments to any of them. If, however, the protion may seem plausible, because the prohibi- vision last mentioned is so plain as not to adtion against paying debts-that is, past-due mit of construction which will harmonize it obligations-is followed disjunctively, "or to with the other provisions of the section, then make payment to physicians," etc.; for, if a it is void; for where a saving clause, if physician's bill had been already incurred, good, would render a statute of no effect or it would be comprehended under the term operation, the saving clause is void; a sav"debt," and there would be no reason for the ing totally repugnant to the body of an act is further provision prohibiting payment to void. 1 Bl. Com. 89. physicians. A literal construction, therefore, of this last provision, would nullify the earlier provisions of the section, and deny the suffering employés the evidently intended benefits provided for in the section. If commutation could not be made to enable payment to any person for anything, it manifestly could not be made at all. This inhibition against commutation for payment to physiclans, lawyers, or other persons is evidently meant to protect the employé in the enjoyment of the periodical payments, by making it impossible for him to yield to importunities (Court of Errors and Appeals of New Jersey.

of creditors for the discharge of their already due obligations, or to raise money to be spent in enterprises of a doubtful or hazardous nature, or where it does not appear that commutation will otherwise be for the best interest of the employé, or is not needed to

avoid undue expense or hardship, or when it does not appear that some unusual circumstances warrant a departure from the normal method of periodical payments.

Let it be borne in mind that the statute empowers the court to commute the compensation in certain circumstances, and then provides that it shall not be allowed in order to make a payment to any person. If no payment for anything to any person could be made, for what could the lump sum be used? For nothing. If commutation be ordered, it would certainly be for the purpose of use by the person to whom it was awarded, and it could not be used by any such person without passing it on to others. If effect is to be given to the provision that commutation may be made, effect cannot be given to the provision that it shall not be made to enable pay ment by the employé to anybody, without compelling the recipient to hoard it, or give it away, things too absurd for serious mention.

Either upon a liberal construction of the provision in question, or by treating it as inoperative, the petitioner is entitled to prevail. In our opinion the Supreme Court reached the right result in this case, and its judgment should be affirmed, for the reasons above expressed.

(90 N. J. Eq. 244) MARSH V. MARSH. (No. 51.)

March 3, 1919.)

(Syllabus by the Court.)

1. INJUNCTION 9-USE OF PROPERTY.

Courts of equity will not aid one man to restrict another in the uses to which he may lawfully put his property, unless the right to such aid is clear.

2. COVENANTS 49-RESTRICTION OF USE OF

PROPERTY-CONSTRUCTION.

Every doubt and ambiguity in the language of a covenant restricting an owner's use of his property must be resolved in favor of the owner's right.

3. INJUNCTION 62(3)-RESTRICTION OF USE OF PROPERTY-CONSTRUCTION.

Whether or not a covenant that "no building shall be erected on said lot unless the front foundation wall of the said building is at least 75 feet from" the street is violated by the construction of a second story sleeping porch upon the original one-story inclosed porch which rested upon three small cement piers, and which the restricted area, admittedly were not in violatter porch and piers, while in part within lation of the covenant, is not so clear that a court of equity will aid in its enforcement.

Kalisch, White, Williams, Taylor, and Gardner, JJ., dissenting.

Appeal from Court of Chancery.

[4, 5] The rules of construction prevent any of the words of this section from defeating the obvious intent of the Legislature. In construing a statute, where literal interpretation Bill for an injunction by Helen E. Marsh may lead to absurd results, resort may be had against Joseph A. Marsh. From a decree to the principle that the spirit of the law of the Court of Chancery for complainant controls the letter. Mendles v. Danish, 74 advised by the Vice Chancellor (104 Atl. 373), N. J. Law, 333, 65 Atl. 888. The intended defendant appeals. Reversed and a remittibenefits to be derived by an injured employé tur to that effect to be entered, to the end from commutation of periodical payments that complainant's bill may be dismissed.

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