Rusk v. Jeffries

• Decision Date: 31 January 1933
• Docket Number: No. 189.,189.
• Citation: 164 A. 313
• Parties: RUSK v. JEFFRIES et al.
• Court: New Jersey Supreme Court

164 A. 313

RUSK

v. JEFFRIES et al.

No. 189.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Appeal from Circuit Court, Atlantic County.

Action by George Rusk against Mildred L. Jeffries and Walter Jeffries, jointly, severally, and in the alternative. From a judgment for plaintiff, defendants appeal.

Affirmed.

Thompson & Hanstein, of Atlantic City, for appellants.

John Rauffenbart, of Atlantic City, for respondent.

WELLS, J.

This is an appeal by the defendants from a judgment in favor of the plaintiff, entered upon the verdict of a jury, in the Atlantic county circuit court.

The plaintiff was a policeman of the city of Ventnor City.

On December 22, 1930, about 9:30 p. m. while on duty, ho was walking easterly along Ventnor avenue, and while crossing Troy avenue, at the intersection of Ventnor avenue, a collision occurred between plaintiff and an automobile operated by the defendant Mildred L. Jeffries, the daughter of the defendant Walter Jeffries. As a result of the accident, plaintiff suffered injuries disabling him from performing, in the future, his duties as a policeman.

Defendant Walter Jeffries was sued as the owner of the car, and Mildred L. Jeffries was sued as his agent in the operation of the car.

The defense was that the accident was caused solely by the negligence of the plaintiff and the plaintiff's negligence contributed to the accident.

Appellants allege three grounds of appeal.

The first: "Because the Court refused to admit testimony on behalf of the defendants to show that the plaintiff had been pensioned as a police officer of Ventnor City, and as such is receiving from the Pension Fund of the Police and Fire Departments of Ventnor City a certain sum per month, it having been admitted by the plaintiff that the Pension Act had been adopted by the City of Ventnor City, to which an exception was duly taken."

The appellants contend that the pension was a part of the compensation received by the plaintiff for his services as a police officer, that the money was no gratuity paid to him by the city, but a binding obligation of the city; that it was not in the nature of insurance, the premium of which plaintiff had paid, but was payable to him by law from the city. In other words, that plaintiff's salary consisted, not only of a stipulated sum which he was to receive while in service, but also of a further sum which he was to receive after retirement, and that consequently, inasmuch as the plaintiff proved as a measure of his damages his salary and the loss thereof, the defendants should have been permitted to show that the plaintiff had in fact not lost the full amount of salary, but only such part thereof as was in excess of the pension received by him.

In support of that contention the appellants cite Hayes v. Hoboken, 93 N. J. Law, page 432, 108 A. 868, in which Mr. Justice Black, speaking for this court, said: "The moneys paid for pensions are a part of the compensation to be paid for the services rendered by members of the force, and are an inducing cause to their enlistments"; and also a New York decision, Drinkwater v. Dinsmore, SO N. Y. 390, 36 Am. Rep. 624, wherein the plaintiff, having been injured and unable to work, was nevertheless paid his wages continuously by his employer, the holding of the New York court being that the defendant had the right to show that the plaintiff had lost no wages or that the wages were not as much as he had claimed, and that the defendant had the right "to show, if he could, that for some particular reason the plaintiff would not have earned any wages if ho had not been injured, or that he was under such a contract with his employer that his wages went on without service, or that his employer paid his wages from mere benevolence."

Attorney of respondent cites on his brief numerous decisions from the New York courts. We think the case of Geary v. Metropolitan St. R. Co., 73 App. Div. 441, 77 N. Y. S. 54, 55, is more applicable to the case now under consideration, where it was said: "It is further contended that there are prejudicial errors in the reception of evidence and in the instructions to the jury upon the question of damages. The decedent was earning a salary of $1,400 per annum. It appeared that under the pension law provisions of the Greater New York charter the decedent's widow was receiving $700 per annum. The court instructed the jury that in assessing the damages they should not take into consideration this pension which the widow was receiving, and the defendant excepted. We think the instruction was proper. The duty of the jury, under the statute, was to ascertain the pecuniary loss which the widow and children sustained by the death of the husband and father, and any benefits which they received by way of insurance or pension are not to be offset or deducted."

The Pension Act, P. L. 1911, c. 72, p. 104, and supplements thereto and amendments thereof (Comp. St. Supp. § *136—3900E(1) et seq., and § *136—3900L(1) et seq.), provide that any member of the police or fire department, who shall have received permanent disability in the performance of his duty, shall, upon a proper certificate to that effect, be retired upon a pension equal to one-half of his salary at the time of his retirement.

A reading of the provisions of this act indicates that the pension so paid was in the nature of insurance or indemnity.

The Pension Act, as amended by the Laws of 1927, c. 120, p. 226, and the Laws of 1928, c. 185, p. 352 (Comp. St. Supp. § *136—3900L (4), provides the method by which the fund out of which the pensions to the police and firemen of municipalities, adopting the act, are to be raised. The fund is made up by the deduction from every payment of salary to such member of the police and fire departments in such municipality of 2 per cent. of the amount thereof.

The municipality is to raise by taxation and pay into said fund yearly an amount equal to 4 per cent. of the total salaries paid to the members of the police and fire departments; there shall also be added to such fund all fines imposed upon any member of the police and fire department; all moneys given or donated to such funds; all moneys deducted from the salary of the police and fire department on account of absence or loss of time; and one-half of all rewards paid for any purpose, and, in addition thereto, one-half of the 2 per cent. tax paid to the commissioner of banking and insurance.

The trial court, in refusing to accept testimony as to the amount of pension received by the plaintiff, based his ruling upon the reasoning of the court in the cases of Cornish v. North Jersey Street Railway Co., 73 N. J. Law, 273, 62 A. 1004, 1005, and Weber v. Morris & Essex Railroad Co., 36 N. J. Law, 213.

In Cornish v. North Jersey Street Railway Co., supra, Mr. Justice Garrison, speaking for the Supreme Court, said: "The fund out of which such payments were made was created in part by the plaintiff's contributions made under a contract with strangers to the defendant and the tort-feasor was no more entitled to be credited with the sums repaid to the plaintiff under such contracts, than it would be to his...