even nominal damages in a libel suit. Such a construction would not be given to a statute, depriving a person of a remedy, unless it was so clear as to be beyond question. This court, however, has construed this statute directly against the contention of the defendant in this case. The defendant here did not deny that the publication was a libel, but, on the other hand, admitted it, and immediately, in his next publication, retracted and corrected it. The trial justice excluded from the jury, under the proof, all questions of punitive damages, and confined them to compensatory damages only. The amount of the verdict in this case makes it clear that the damages assessed by the jury were within the direction given to them by the court. In Stuart v. The News Publishing Co., this court held that, conceding the act entitled "An act relating to libels," approved June 13, 1898, to be constitutional, which was not then decided, and is not intended now to be decided, nevertheless, under that statute, to recover compensatory damages in an action for libel, it was only necessary to allege that the effect of the publication had been that the plaintiff was "injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace with and among all his neighbors and other good and worthy persons to whom he was in any wise known."

The provision of the act which says the plaintiff "shall recover only his actual damages proved and specially alleged in the declaration" is fully complied with by such an allegation of actual damages or injury as that just above quoted. Stuart v. News Publishing Co., 67 N. J. Law, 317, 51 Atl. 709. The language of the declaration in the case before us is quite as specific in the matter of special allegation of damage as in the declaration in the Stuart Case. After reciting the facts as published, and showing their criminal and immoral character, and alleging that they were false and untrue in fact as to the plaintiff, the declaration proceeds as follows: "All of which was well known to the defendant at and before and since the time of such publication, by means of which said premises the plaintiff hath been forced and obliged to undergo, and hath undergone, trouble in body and mind, and laid out and expended large sums of money, and has been greatly affected in his good name and reputation; prevented from transacting his necessary and lawful method of business for a long space of time; by reason of said publication his family and children have been held up to shame, infamy, and ridicule, and have also suffered in body and mind by reason of such publication, and the plaintiff has otherwise been greatly injured and damaged." This is a good declaration under the statute, and alleges specially sufficient grounds to entitle the plaintiff to recover actual damages-which means compensatory damages-for the special injuries thus alleged.

We have not passed upon the constitutional question argued in this case, because the case was submitted to the jury in such a way as to be within the Stuart Case, and to be clearly within the statute as to damages, irrespective of the constitutional question.

(68 N. J. L. 728)

NORMAN v. MIDDLESEX & S. TRACTION CO.

(Court of Errors and Appeals of New Jersey. March 2, 1903.)

FELLOW SERVANTS-EMPLOYMENT BY AGENT
-TRANSFER OF SERVICES-CON-
SENT OF SERVANT.

1. If plaintiff, when injured by the negligence of defendant's servants, was employed and paid by one who in so doing acted as the mere agent of defendant, plaintiff could not recover, as he was a co-servant of those whose negligence caused his injury.

2. If plaintiff, when injured by the negligence of defendant's servants, was employed by one who had a contract to repair defendant's tracks, the question as to whether he had transferred plaintiff's services to defendant with plaintiff's consent should have been submitted to the jury. Error to Supreme Court.

Action by Charles Norman against the Middlesex & Somerset Traction Company. A verdict was directed for plaintiff, and defendant brings error. Reversed.

Willard P. Voorhees, for plaintiff in error. Alan H. Strong, for defendant in error.

PER CURIAM. This was an action in the Middlesex circuit, originally brought against the Middlesex & Somerset Traction Company and Thomas M. Lesher and Frank Lesher, named as partners. The purpose of the action was to recover for an injury of plaintiff occasioned by the alleged negligence of the defendants in running cars over a street railway of the defendant company. The action was discontinued with respect to the defendants Thomas M. Lesher and Frank Lesher, and was brought to trial upon the issue made by the plea of the general issue filed by the Middlesex & Somerset Traction Company.

At the trial there was no question but that the collision injured the plaintiff, and was the result of negligence on the part of employés of the defendant company. The question tried was whether the plaintiff was not also in the employment of the same company, so that the negligence by which he was injured was that of a fellow servant. The trial judge directed the jury to find a verdict for the plaintiff, and an exception was duly taken. In this respect, the judge manifestly erred. There were two views which could have been taken of the evidence. One pos

sible view was that Thomas M. Lesher, who employed and paid the plaintiff, acted in so doing as the mere agent of the defendant company. In such case the plaintiff was a co-servant with those whose negligence accasioned his injury, and there should have

been a direction for a verdict for the defendant if the jury found such agency existed. The other possible view was that Lesher had some contract with the defendant company respecting the repair of its tracks, and, having employed the plaintiff in respect to his business, had transferred plaintiff's services pro hac vice to the defendant company, with plaintiff's consent. In this view, there should have been a submission to the jury of the question whether there had been such transference of services with plaintiff's consent (there being evidence sufficient to submit to the jury on that subject), with direction to find for defendant if such transfer of services was found proved.

As the case will doubtless to tried again upon evidence which may vary from that now before us, it is deemed unnecessary to express any opinion as to the effect of the evidence. In either of the possible views of the evidence above noticed, the action of the judge in directing a verdict for plaintiff was indefensible.

(68 N. J. L. 664)

ion. Dean v. Paterson, 67 N. J. Law, 199, 50 Atl. 620.

Among the reasons assigned for reversal in this case is the following: "Because the Supreme Court decided that there was a benefit accruing to the abutting property owners from the new curbing." It seems to be a general practice, both in the Supreme Court and this court, to allege a reason similar to this in cases brought up to review the confirmation of assessments by the circuit court or court of common pleas. In the case before us, the commissioners to assess the benefits were appointed by the common pleas. They reported their action to that court. After notice to all parties in interest, the report of the commissioners was confirmed. The report of the commissioners, as confirmed, contained an express statement that the assessments laid had been laid according to the peculiar benefits. The Supreme Court, in its opinion above referred to, has also so found. Such a reason as that above quoted cannot be considered in this court, nor should it be in such a case in the Supreme Court. The action of the common pleas in confirming a report after notice and

ERSON.

(Court of Errors and Appeals of New Jersey. March 2, 1903.)

MUNICIPAL CORPORATIONS-IMPROVEMENT

ASSESSMENTS-REVIEW.

1. The conclusion reached by the Supreme Court in its opinion in the case reported as Dean v. Paterson, 50 Atl. 620, 67 N. J. Law, 199, is approved by this court.

2. The finding by a circuit court or court of common pleas that an assessment for benefits has been made according to the peculiar benefits received by the property assessed will not be reversed in the Supreme Court or this court if there be evidence from which the court so confirming the assessment could so find.

3. The finding by the confirming court that the assessment has been laid according to the peculiar benefits received is the finding of a fact, and will not be reviewed here if the record shows any proof to sustain it.

(Syllabus by the Court.)

Error to Supreme Court.

Certiorari by the state, on the prosecution of James B. Dean, against the mayor and aldermen of the city of Paterson. Assessment affirmed, and plaintiff brings error. Affirmed.

Francis Scott and Edward F. Merry, for plaintiff in error. Michael Dunn, for defendant in error.

FORT, J. The opinion of Mr. Justice Hendrickson in the Supreme Court in this case is a clear and correct enunciation of the legal principles applicable to this cause, and It might very properly be affirmed upon that opinion. It will be unnecessary to rerefer to any matter considered in that opin

clusive upon the parties upon all questions of fact. Whether the assessment has or has not been laid according to benefits is a question of fact. The Supreme Court, in Van Wagoner v. Paterson, lately said in a case like this: "The principle upon which the assessment was laid is certified by the commissioners to be according to the peculiar benefits of each lot or parcel of land, and the circuit court, after hearing evidence upon that point, including an examination of the commissioners, found that the assessment had been so made. This finding of fact I will not be reviewed here. Whether the assessment was laid by the commissioners according to the peculiar benefits received was the very question at issue before the circuit court upon the rule to confirm-a question over which that court had jurisdiction, and upon which it was required to pass. In such a case the rule is that where the facts are found by a trial judge, and there is evidence to sustain such finding, this court will not review his conclusions thereon." Van Wagoner v. Paterson, 67 N. J. Law, 455, 51 Atl. 922; City of Elizabeth v. Hill, 39 N. J. Law, 555; Blackford v. Plainfield Gaslight Co., 43 N. J. Law, 438, 440; Brewster v. Banta, 66 N. J. Law, 367, 49 Atl. 718. This is a correct statement of the rule of law applicable to such cases, and the Supreme Court, therefore, would have been justified if it had not considered the question of whether the property of the prosecutor was or was not peculiarly benefited.

The judgment rendered in the Supreme Court is affirmed.

REID V. PRINGLE et al. (Supreme Court of New Jersey. Dec. 23,

1902.)

DESCENT AND DISTRIBUTION-DEBTS OF ANCESTOR-LIABILITY OF HEIR-PLEA - RIENS

PER DISCENT-AMENDMENT.

1. Where, in an action against heirs to recover a debt of their ancestor, defendants pleaded that they had no lands from their ancestor by descent, or assets in their hands, and on the trial it was proved that defendants' ancestor died seised of certain lauds, subject to a mortgage, but that the plea was not intentionally false, but had been filed by defendants' attorney under the erroneous belief that an equity of redemption did not constitute assets descended, defendants would be permitted to amend the plea to conform to the fact, on payment of costs, and a judgment would be rendered, to be satisfied only from the lands of which defendants' ancestor died seised, instead of a general judgment against defendants.

Action by Sarah R. Reid against William H. Pringle and others. On motion for judgment, and cross-motion to amend plea. Motions granted.

Argued November term, 1902, before DIXON, COLLINS, and HENDRICKSON, JJ.

Randolph Perkins, for plaintiff. Henry Traphagen, for defendants.

PER CURIAM. The action was on the heirs and devisees' act. The defendants pleaded riens per discent. At the trial, in addition to the proof of the plaintiff's debt, it was proved that the ancestor of the defendants died seised of certain lands, subject to mortgage. A special postea recited the facts found, and the plaintiff moved for a general judgment against the defendants. The defendants moved to amend their plea so as to confess the assets described in the postea, and that therefore the judgment should be only for those assets. This court directed testimony to be taken on the points whether the plea was intentionally false, and whether, if not, an amendment would work any injury to the plaintiff. For the security of the plaintiff, a general judgment was permitted, subject to the final order of the court. The testimony has now been presented. We are satisfied that the plea filed was not intentionally false, but was filed through inadvertence, and in the erroneous belief on the part of the attorney of the defendants that an equity of redemption in land did not constitute assets descended. We are satisfied, also, that no harm has come to the plaintiff through the interposition of the plea, beyond the incurring of costs that otherwise need not have been incurred.

The plea may therefore be amended so as to conform to the postea, on terms that the defendants pay to the plaintiff the taxed costs of the trial, and of the testimony taken under our direction; and upon such amendment and payment the judgment entered shall be vacated, and a judgment may be

entered as of the same date, to be levied only on the lands whereof the ancestor of the defendants died seised.

(68 N. J. L. 713) LOID'S ADM'X v. J. S. ROGERS CO. (Court of Errors and Appeals of New Jersey. March 17, 1903.)

INJURY TO EMPLOYÉ.

1. The plaintiff's intestate, while engaged with others of the defendant's employés, under the direction of a foreman, in lifting and pushing by hand a tall and unwieldy derrick into an upright position to be ready for hoisting materials into a building was thrown from the building and killed by the sudden falling of the derrick. At the trial of the plaintiff's suit against the master for damages resulting from the death of the intestate, based upon the alleged negligence of the master towards the intestate, there was no evidence introduced by the plaintiff from which the jury could lawfully infer such negligence. But under the evidence of the defendant the plaintiff's case was somewhat strengthened on that subject, although not sufficiently to justify the instructions given to the jury by the trial judge, who charged that the liability of the defendant turned upon the question whether or not the plank upon which the machine stood contained nails for the prevention of its slipping, and that, if not, then their verdict should be for the plaintiff; and thereupon refused to charge certain of the defendant's requests to the effect that the jury could find, under the evidence, that the deceased, in the handling of the derrick, assumed an obvious risk for the consequences of which the defendant was not legally chargeable. Held, that in refusing such requests the trial court erred.

2. No legal duty of the master towards the servant has ever, judicially, been substituted for the exercise of ordinary prudence by the latter. The Legislature has not, nor have our courts by judicial construction, enlarged the range of legal responsibility of the master to that of a general insurer of the safety of the servant against accidents happening to him in the performance of his duties.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Susan T. Loid, administratrix of William H. Loid, against the J. S. Rogers Company. Judgment for plaintiff, and defendant brings error. Reversed.

E. A. Armstrong, for plaintiff in error. John W. Wescott and Jacob T. Hendrickson, for defendant in error.

VREDENBURGH, J. A tall wooden appliance called a "two-legged derrick," intended for hoisting heavy materials from the ground up to the third story of a building in the course of erection, while being lifted, pushed, or pulled by hand by the intestate, Loid, and other employés of the defendant, into an upright position, so as to be ready for use, lost its center of gravity, toppled over, and fell down from the building. In falling it dragged with it an attached coil of rope, which caught around the intestate's foot, throwing him down from the building, and causing his death. In a suit brought under the statute in the Supreme Court by Loid's administratrix against the defendant for compensatory damages, the declaration

averred that the defendant negligently failed to properly secure and fasten the feet or ends of the frame of the derrick, and negligently failed to notify the intestate that the derrick would, when used, slip and fall, and negligently directed the intestate to use and aid in using the derrick while in the condition aforesaid. The case was tried before

the Burlington circuit, and the plaintiff obtained a verdict for substantial damages, and to review the judgment thereon entered the defendant brings error.

The plaintiff's proofs showed that this derrick was constructed of two poles or legs, fastened together at the top, about 20 feet long, and extending apart about 12 feet wide at the bottom, with cross-bars about 5 feet above their ends, holding the legs together. The two ends of these legs rested, but were not fastened, upon a single plank, which was about 12 feet long by 12 inches wide and 3 inches thick. There were cleats or boxes nailed on the plank, within which the ends of the legs fitted, and which were intended to prevent these ends from slipping upon the plank. Two long guy lines or ropes were fastened to the top, one of which reached back and was tied to the floor joists below, and the other extended out over the wall toward the ground. The plaintiff proved that the derrick had been moved from a lower part of the building up to the third floor, but had not been yet placed in a position ready for use. One of the foremen, thinking that it leaned over too far, and desiring to have it righted, called about six or eight workmen, including the intestate, to do it. Morton, the principal witness for the plaintiff, tells what thereupon happened, viz.: "We all went back in a hurry, and then it was leaning too far, and we went to raise it, and it slipped from the bottom, and let the thing go over. We all hands got hold of this machine to try to raise it up. * Tried to push it back to straighten

*

*

it up.

* * We all hands got under it, and tried to push it back, and hoist it up." This force must have caused the derrick to fall (to use again the witness's words)-"just as though both legs were lifted out of the cleats, as though in the raising of it you had raised both legs above the cleats, and it went over." Whether this derrick lost its perpendicular and fell because its feet were lifted too high by the workmen out of the cleats on the plank in which they stood, or because the whole plank at the base slipped out from its position as the result of the force used by the workmen, is a subject of doubt under the evidence. At the close of the plaintiff's case the defendant's counsel unsuccessfully moved the court for a nonsuit, based upon grounds of the want of proof showing any negligence on the part of the defendant, as well as that the proofs demonstrated contributory negligence by the deceased. If the defendant, upon being denied this motion, had then rested his proofs, his right to the direction,

by the court below, of a verdict in his favor, would have been entirely clear. No negligence imputable to the defendant had yet appeared. The defendant had (so far as the plaintiff's case had shown) furnished his employés with a properly constructed machine. There was no evidence as yet of the slightest defect in its construction, either latent or otherwise. The plaintiff had not established the averments in his declaration that the defendant had "negligently failed to properly secure and fasten the feet or ends of the frame of the derrick." On the contrary, it had appeared that the proper construction of this derrick required the feet to rest unfastened upon the supporting plank. The plaintiff's testimony had further shown that in the effort to straighten the appliance by the intestate and those with him, instead of making use of the guy ropes from the top (or other proper and safe means) to pull it, and move it into a vertical position, by force exerted at its top, they had hurriedly applied force at its base, resulting in its fall.

Under the facts so far presented, it was palpably plain that but a slight degree of care in method, and less haste in execution, would have avoided the catastrophe. Even conceding that the injury happened to the intestate in the actual use of the derrick, the decision of this court in the case of McLaughlin v. Camden Iron Works, 60 N. J. Law, 557, 38 Atl. 677, is convincing authority against the liability of the master for the consequences of precisely such accidents. In the latter case some employés, during the erection of a building, attempted to raise by hand a large wooden frame, and in hoisting it the plaintiff, an employé, was injured by its falling through lack of fastening, and this court held, in affirming the nonsuit of plaintiff ordered below, that the master was not responsible for the injury. The court, in its opinion, used the following pointed language: "The plaintiff knew that the frame was being raised by hand under the direction of the foreman, and he assumed such resultant risk of that method of doing the work as was obvious to him." The general governing principle, collected from various textwriters and decisions, was there stated as follows: "Where appliances for work are needed, the duty is on the master to use reasonable care in their selection, and he cannot escape it by delegation; but carelessness in their use, or failure to use them, on the part of his servant, whereby injury is received by a fellow servant in the same common employment, is not chargeable to the master, no matter what may be the grade or authority of the servant." But the defendant corporation then injected into the case a disturbing element by raising an issue of fact as to the proper construction of the derrick, and offered evidence to prove that, for the purpose of preventing the bottom of the supporting plank from slipping, it had in its construction, caused a dozen or more

nails or spikes to be driven into and entirely through the plank, so that they extended or protruded about one inch beyond its bottom surface. The plaintiff, admitting this, brought proof to show that no nails extended from the bottom of the plank when seen before the accident by the plaintiff's witnesses. The learned trial justice, in his charge to the jury, assumed that this was the only important question of fact to be determined by them, and instructed them as follows, viz.: "The fact upon which your verdict must turn in regard to the liability of the defend. ant is whether at the time of this accident the plank upon which this machine stood contained such nails for the prevention of its slipping as reasonable care to prevent that would dictate. There, really, is the point in this case;" and, after further instructions in the same line of thought, added: "Were those nails there at the time when the accident occurred, or were they not? As you decide that question you will decide the case, and if you decide the case upon the understanding that the plaintiff has satisfied your minds that the nails were not there, then your verdict is to be for the plaintiff upon the lines that I have indicated." At the same time the learned judge refused to charge the defendant's fourth and fifth requests. Substantially considered, they embrace the proposition that the jury could find, under the evidence, that in the handling of the derrick the deceased assumed an obvious risk, for the consequences of which the master was not responsible. While these requests, as made, are not apt in their phraseology in the presentation of this question to the mind of the court, yet we think they should be held to have been sufficiently spe cific, and that the express refusal of the court to so charge constituted error. Strictly speaking, this accident did not result from the use of the derrick. It was being straightened into a vertical position so that it could be used. Until it was placed in its proper position for use, it must be evident that the risk of the sudden fall of this topheavy frame, while being righted, should have been obvious to all ordinarily careful workmen, and, if the risk of its falling was not increased by any structural defect in the machine, the master could not be held responsible for the accident. The court, by its charge (above quoted), confined and narrowed the inquiry of the jury to the solution of a fact which was not conclusive as to the negligence of defendant, and erroneously refused to charge them a principle of law to which the defendant was entitled. "An employé assumes all the risks of his employment against which he may protect himself by ordinary observation and care," is the brief, but plain, rule adopted by this court in the recent case of Durand v. N. Y. & L. B. R. Co., 65 N. J. Law, 656, 48 Atl. 1013 (see authorities there cited). No legal duty of the master towards the servant has ever judicially been substituted for the exercise of ordi

nary prudence by the latter. The liability of the master to respond in damages to the servant in cases founded upon accidents of this character has never been so extended as to dispense with the exercise of ordinary care by the servant to avoid them. The Legislature certainly has not as yet, nor have our courts by judicial construction, enlarged the range of legal responsibility of the master to that of a general insurer of the safety of the servant against accidents happening to him in the performance of his duties.

I think the judgment below should be reversed, and a venire de novo be awarded.

(68 N, J. L. 666) BOARD OF CHOSEN FREEHOLDERS OF CAMDEN COUNTY v. RITSON. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

INSANE PERSONS-SUPPORT-LIABILITY OF ESTATE.

1. It is within the power of the Legislature to provide remedies against the estates of insane persons while they are living or after their death.

2. An insane female who is married may be held personally liable for her maintenance in any county insane asylum under the supplement, approved May 9, 1894, to the act entitled "An act to provide additional accommodations for the insane of this state.' Gen. St. p. 1993. The fact that the husband might be liable for her support does not affect the statutory liability.

3. For a claim for which the insane person could be held in her lifetime, her estate may be held after her death.

4. The words "every insane person supported in any county insane asylum shall be personally liable for his maintenance therein," as used in the supplement of May 9, 1894, will be construed as if the words were "every insane person 'maintained' in any county insane asylum shall be personally liable for his maintenance therein." Gen. St. p. 1995, § 83.

(Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by the board of chosen freeholders of Camden county against Georgianna W. Ritson, administratrix. Judgment for plaintiff, and defendant brings error. Affirmed.

Howard Carrow, for plaintiff in error. George J. Bergen, for defendant in error.

FORT, J. This was an action, in the name of the chosen freeholders of the county of Camden, to recover from the defendant, as administratrix of Elizabeth A. Rigg, deceased, for her board in the county hospital for the insane of Camden county. The deceased was received into the hospital as a private patient in 1889, and the rate of board was then fixed at $3.50 per week. She died on May 31,. 1900. At the time she entered the asylum she was married, and her husband, John Rigg, was then alive. He died December 26, 1898. During the time she was in the hospital prior to his death, the weekly amount of board was paid in varying and various installments, so that there remained at the time of his death only $189 then un