of cars over the free time allowed, to set up a defense to any charge that if the cars had been delivered to the railroad company the railroad company was not in a position to make use of them. I do not think that is the law governing the question of the charge for the detention of cars over the free time. [2] The other class is a claim amounting to $1,209 which accrued during the months of December, 1912, and February and March of 1913, and the defense of the steel company to this claim of demurrage is that the shipments were frozen, and that under the rules of the railroad company the steel company was not liable for demurrage if it used its best endeavor to unload the shipment in the condition in which it was delivered. The rule in regard to frozen ore is as follows: That no demurrage shall be collected "when shipments are frozen while in transit so as to prevent unloading during the prescribed free time. This exemption shall not include shipments which are tendered to consignee in condition to unload. Under this rule, consignee will be required to make diligent effort to unload such shipments." It is admitted that the ore was frozen when delivered; that by diligent effort on the part of the steel company it was able to unload ten cars of the ore within the free time of 48 hours. But the railroad company claims that: First, by reason of the steel company taking advantage of what is known as the average agreement, it was not entitled to take advantage of the "bunching rule," i. e., the rule which applied to cars that were bunched by the railroad company either at the place of shipment, en route, or at the place of consignment. And, second, that the rule above quoted applies to but one car, and that if the steel company had facilities for unloading one car of frozen ore within the free time of 48 hours it must pay demurrage on all the cars delivered to it which it failed to unload within that time. As to the first contention, it was not the bunching of the cars which prevented the steel company from unloading the cars within the free-time limit. If the ore had not been frozen, the facilities of the defendant for unloading the cars would have taken care of all the cars delivered, and therefore it was the freezing of the cars and not the bunching of the cars which was the cause of the delay. [3] As to the second contention of the railroad company, notwithstanding the very curt opin ion of the secretary of the Interstate Commerce Commission, I am unable to give the interpretation to that rule contended for by the railroad company. Demurrage shall not be collected "when shipments are frozen while in transit." A "shipment" is a consignment as delivered by the railroad company, be it one car or one hundred cars, and there is nothing in the averment of facts to justify the contention that the number of cars delivered at any one time during the period for which this demurrage is charged was due to the bunching of shipments either at the place of shipment, en route, or at the place of delivery. I am of the opinion that the whole of the demurrage charge as claimed by the railroad company for the detention of the cars during the period of the flood is a proper charge, and that as to the second class the defendant is entitled to credit for all the cars containing frozen ore which it was unable to unload within the free time with the facilities which it had, namely, for unloading of the ten cars within the free time. Let judgment be entered for the plaintiff in accordance with the above opinion. September 14, 1917. In a former opinion filed in this case, after discussing the questions of law involved, I directed that judgment be entered for the plaintiff in accordance with the above opinion. There was nothing in the statement of claim specifically stating what judgment should be entered in case of finding of the court in any particular way upon the questions involved, and therefore I assume that the exact amount which the plaintiff was entitled to recover would be agreed upon by the parties. As I state, there was no specific statement in this stated case. As to whether or not the plaintiff was entitled to recover anything on the second class of cars discussed in the opinion in this case, I found in favor of the defendant's contention that, if it unloaded five cars a day, it could not be charged demurrage on any extra cars which happened to be on the interchange track at that time. But an examination of the schedule attached to the stated case, marked "Exhibit C," giving the date and number of the cars placed on the interchange track during the months of December, February, and March, assuming that the plaintiff removed five cars a day, we have, at a dollar a day, just about the plaintiff's claim of entitled to recover the $2,612, admitted to be $1,209. I therefore find that the plaintiff is ing the time the tracks were flooded, and is not due, and the $208, which accrued on cars durentitled to recover anything for the detention of the cars placed during the months of December, February, and March, in which the ore was frozen. Appeal from Supreme Court. A communication is qualifiedly privileged where circumstances exist, or are reasonably believed to exist, which cast on one the duty of making a communication to another person, to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interest of society that he should tell third persons certain facts, and such communication must be made in good faith. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Qualified Privilege.] 3. LIBEL AND SLANDER 51(1) Action by Ned K. Finkelstein against Herman Geismar. Judgment for plaintiff, and defendant appeals. Affirmed. The following is the opinion of Trenchard, J., in the court below: On May 15, 1916, the plaintiff below opened a clothing store on Washington street, in Hoboken. Three days later he was invited to the mayor's office in the city hall. In this suit for slander he avers that then and there the defendant said to the mayor of and concerning him: "This man, Mr. Finkelstein, is a faker, and came to Hoboken to fake the public, and his method of doing business is to show an article in the window, and when a man comes inside to purchase that article to give him inferior goods in its place. He is a disgrace to Hoboken and Washington street, and a man like him should be driven out of the town." The jury found for the plaintiff, and the defendant's chief contention here is that the trial judge should have directed a verdict for him on the ground that the alleged slander was a privileged communication. We think the judge rightly refused to direct a verdict. The question is whether the defendant's statement came within that class of communications which is regarded in law as having a qualified privilege. [1] A communication is qualifiedly privileged The term "express malice" in connection where circumstances exist, or are reasonably with privileged communications means some believed by the defendant to exist, which cast motive actuating the alleged defamer different on him the duty of making a communication to from that which prima facie rendered the com- a certain other person to whom he makes such munications privileged, a motive contrary to communication in the performance of such duty, good morals, and may be legitimately gathered from the character of the defamatory communication, as where the terms used are utterly beyond and disproportionate to the facts which the defendant had reason to believe, or from the circumstances under which the communication is made, or from any extrinsic facts which in reason tend to prove it. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Express Malice.] 4. LIBEL AND SLANDER 112(2) MALICE PRIVI- In a slander case wherein defendant claimed that a communication to the mayor of a town concerning a merchant was privileged, evidence held sufficient to sustain a finding of express malice and want of good faith. 971(5) LEADING QUESTIONS-DISCRETION of Court. The refusal of a trial judge to allow a leading question to be put by counsel to a witness called by him is a discretionary matter, and will not be reviewed in absence of a palpable abuse resulting in prejudice. 6. APPEAL AND ERROR 1058(2) LESS ERROR-EVIDENCE. or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, 60 Am. Rep. 622; Fahr v. Hayes, 50 N. J. Law, 275, 13 Atl. 261; Rothholz v. Dunkle, 53 N. J. Law, 438, 22 Atl. 193, 13 L. R. A. 655, 26 Am. St. Rep. 432. [2] It is seen, therefore, that a qualifiedly privileged communication is inconsistent with the existence of express malice and requires both an occasion of privilege and the use of that occasion in good faith and is actionable if actuated by express malice. Where there is evidence of express malice to rebut the occasion of privilege, the judge must submit the case to the jury. [3] By express malice in this connection is meant some motive actuating the defendant different from that which prima facie rendered the communication privileged, and being a motive contrary to good morals. The existence of such a motive may be legitimately gathered from the character of the defamatory communication, as if the terms used be utterly beyond and disproportionate to the facts which the defendant had reason to believe, or from the HARM- circumstances under which the communication is made, or from any extraneous facts which in reason tend to prove it. Fahr v. Hayes, supra. Complaint cannot be made that trial judge refused to allow appellant to ask a certain question of a witness, where substantially same question was afterwards put to same witness and was answered. [4] In the present case it may be assumed that the occasion upon which the words were spoken was one giving rise to a qualified privi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lege. But we think that the evidence was such | trial judge refused to allow the following questhat the jury could legitimately find express malice and a want of good faith, as in fact it did find. The evidence showed that at the time of the defendant's statement the plaintiff and the defendant were competitors in business, the plaintiff having opened his store three days before, and the defendant being an old-established merchant. The defendant was a member of a committee appointed by the Merchants' Association to investigate the plaintiff's method of doing business. According to his own testimony he made no investigation except to observe that "the plaintiff had his goods on ordinary packing boxes," but nevertheless he went immediately to the mayor and caused the plaintiff to be sent for, and then and there made the statement complained of. His own testimony shows that his sole reason for making the defamatory statement was that a corporation (with which the plaintiff was formerly connected), whilst in business for a short period during the year before at another location, had sold goods at cost, and lower than elsewhere, and in his "estimation" not as represented. Apart from the testimony referred to, the defendant testified as follows: tion to be put by him to his own witness: "And it was on account of that that you didn't want him to repeat it; isn't that so?" But that was a leading question, and the refusal of a trial judge to allow a leading question to be put by counsel to a witness called by him is a discretionary matter, and will not lead to a reversal on appeal in the absence of a palpable abuse of discretion resulting in prejudice to the complaining party. Luckenbach v. Sciple, 72 N. J. Law, 476, 63 Atl. 244; Mershon v. Hobensack, 22 N. J. Law, 372. In this case there was no such abuse. [6] Lastly, the defendant complains that the trial judge refused to allow the defendant to ask a witness: "What was the method by which they did business?" But this complaint will not be considered, for the reason that substantially the same question was afterwards put to the same witness and was answered. Dayton v. Boettner, 82 N. J. Law, 421, 81 Atl. 726. The judgment below will be affirmed, with costs. Weller & Lichtenstein, of Hoboken, for appellant. McDermott & Enright, of Jersey City, for respondent. "Q. Do I understand that you went to the mayor and said that Finkelstein was doing a disgraceful business, or a fake business, or something to that effect, when all that you had to PER CURIAM. The judgment under recomplain about was that his goods were still in boxes or on the tops of boxes? A. I hadn't view herein should be affirmed for the reareference at all to his being in business then, sons expressed in the opinion delivered by because he had only come there two or three Mr. Justice Trenchard in the Supreme Court. days before; I had reference to his previous performance. "Q. Well, weren't you complaining to the mayor because this man, Finkelstein, was at the time violating the ordinance? A. No, sir; we were complaining to the mayor about that. "Q. You did'nt go to the mayor, in May, 1916, to complain about what Finkelstein had done some months or years before, did you? A. Yes, sir; there was the appearance of a repetition, from the way he conducted business previous to that, and we didn't want a second performance of it. "Q. And the only thing you know of your own knowledge was that he had sweaters advertised for 69 cents? A. No; I had reference to the condition of the store; there wasn't any thing like it on the entire street. "Q. Didn't you say in the office of the mayor that Finkelstein ought to be driven out of town? A. No, sir; that is not what I said. "Q. Didn't you say something to that effect? A. Something to that effect; yes. "Q. What did you say? A. I said that a store of that kind ought not to be allowed on the street." We conclude, therefore, that it was open to the jury to legitimately find that the defendant's motive in making the statement was to drive the plaintiff off of the street where they both were doing business, because he thought that the plaintiff, in order to get trade, would sell at cut-rate prices articles in which they both dealt. Accordingly the motion for a direction of a verdict in favor of the defendant was properly denied. [5] The defendant also complains that the (91 N. J. Law, 100) KENNEDY v. COON. (Supreme Court of New Jersey. Oct. 16, 1917.) 1. CERTIORARI 36-MATTERS REVIEWABLE -EXCLUSIVE FEDERAL JURISDICTION. The claim of exclusive federal jurisdiction will not be recognized as a basis for review by raised in the trial court and is presented as a certiorari unless the question shall have been basis of writ, where the state appellate tribunal is circumscribed in its discussion of the case to errors appearing on the record, unless the question of the court or general policy of the state. tion presented is one dealing with the jurisdic er, and the employer brings certiorari. Re-encourage investments in ships, manifested by versed. Judgment affirmed 103 Atl. 207. Argued before SWAYZE, MINTURN, KALISCH, JJ. and various congressional enactments imposing a limitation of liability upon the owners of vessel property. The majority opinion of a divided court held that such a conflict of legislative au Kalisch & Kalisch, of Newark, for prosecu- thority existed, and that the New York act tor. was consequently invalid so far as it at McDermott & Enright, of Jersey City, for tempted to impose liability upon the owner respondent. of an ocean-going steamship plying between New York City and the city of Galveston, Tex., for an injury resulting in the death of a longshoreman killed while at work upon the vessel. MINTURN, J. The writ of certiorari brings up the proceedings in a workmen's compensation case in the Union county comThis determination would obviously be dismon pleas, wherein judgment was rendered positive of the claim in the case sub judice, for petitioner, whose husband lost his life since the fact is conceded that the boat upon by an accident, as the trial court found, aris- which this decedent was employed was ening out of and in the course of his employ-gaged in interstate commerce between the ment with prosecutor. port of Brooklyn, in the state of New York, The prosecutor is in the towboat business, and Elizabeth, in this state. But the Southand is engaged in interstate commerce be- ern Pacific Case was followed at the same tween New York and New Jersey. He re-term of the federal court by Valley Steamsides in Elizabeth, where he has his office and principal place of business. One of his steam tugs, the Elsie K., was registered in the customs office in Newark pursuant to 7 R. S. U. S. Fed. Stat. Ann. 16, § 4141 (U. S. Comp. St. § 7719). Robert Coon, petitioner's husband, had been employed as fireman on the boat, and was drowned when she foundered while on a voyage from Brooklyn to Elizabeth August 4, 1915. She went down within about 500 feet of the New Jersey shore at Constable Hook. The court below found as a fact, and there was evidence to support it, that the tug sank in New Jersey waters, and that the deceased was drowned within the jurisdiction. Since this case was submitted, two causes involving questions of the same general legal import have been decided by the federal Supreme Court. The case of the Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, involved the inquiry whether the Workmen's Compensation Act of New York was in conflict with article 3, § 2, of the federal Constitution, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and article 1, § 8, giving Congress power to make all laws necessary and proper to carry into execution the powers vested in the federal government, and United States Judicial Code, §§ 24 and 256 (Act Cong. March 3, 1911, c. 231, 36 Stat. 1091, 1160 [U. S. Comp. St. §§ 991, 1233]), giving federal District Courts exclusive judicial cognizance of all civil causes of admiralty and maritime jurisdiction, as well as with the general policy of Congress to ship Co. v. Wattawa, and the same company against Mraz, reported in 244 U. S. 202, 37 Sup. Ct. 523, 61 L. Ed. 1084. This later adjudication imposes a practical qualification or limitation upon the general application in practice of the rule declared by the former adjudications to the effect that the claim of exclusive federal jurisdiction will not be recognized as a basis for a writ of error, unless the question shall have been raised in the trial court, and is presented as a basis of appeal, where the state appellate tribunal is circumscribed in its discussion of the case to errors appearing on the record, citing in support of this general rule of practice Mutual Life Insurance Co. v. McGrew, 188 U. S. 291, 23 Sup. Ct. 375, 47 L. Ed. 480, 63 L. R. A. 33. [1] The general rule of practice in this state relative to matters determinable in this court, and in the Court of Errors and Appeals, has been settled in accordance with the rule promulgated by the federal Supreme Court, with the additional qualification that the rule shall not apply where, as in this case, the question presented is one dealing with the jurisdiction of the court, or the general public policy of the state. State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271. [2] Obviously, therefore, the question of jurisdiction is involved in this controversy in view of the federal decisions to which we have referred, and under our practice is not eliminated by the failure of the record to present it. The result is that, in reaching a result, our determination must be controlled by the federal decisions referred to, which leads to a reversal of the judgment under review. ERS OF MAYOR-APPOINTMENTS-APPROVAL P. L. 1907, p. 705 (1 Comp. St. 1910, p. 964, pl. 1376), providing that appointment of city officers and employés by the mayor shall expire with the mayor's term, and their successors shall be appointed by the incoming mayor, vests the mayor with appointing power of undivided responsibility, and his appointments need not be approved by the council under P. L. 1873, p. 322, § 18, and P. L. 1881, p. 47. fices of city treasurer and city comptroller in said cities." The act is applicable to Newark as a city of the first class. Under the city charter, as amended, the auditor was elected for a three-year term. P. L. 1859, p. 478, § 10. In 1873 the method of selection was changed to appointment by the mayor, by and with the consent of the council. P. L. p. 322, § 18. In 1881 the Legislature enacted that any city officer holding for a fixed term shall continue to hold over after the expiration of his term "until his successor has been appointed and qualified." P. L. p. 47, c. 43. Respondent Rowe claims under this act, as will presently appear. The act of 1907 was held constitutional in McCarthy v. Queen, 76 N. J. Law, 144, 69 Atl. 30, affirmed 76 N. J. Law, 828, 72 Atl. 1119. It seems to have been generally recognized as applicable to all officials of Newark appointed by the mayor, whether with or with Quo warranto by Samuel P. Waldron and others against James A. Rowe and August Soffel. Judgment of ouster against respond-out the consent of council; certainly so far ent Rowe and respondent Soffel adjudged entitled to hold the office in question. Argued June term, 1917, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Pitney, Hardin & Skinner, of Newark, for relators. as related to the city auditor, for, on January 1, 1909, an auditor was appointed by the new mayor for two years, being the term for which such mayor was elected; and the same action was taken at the beginning of the mayorality terms on January 1, 1911, and January 1, 1913, when Rowe was ap Hubert J. Rowe, of Newark, for respond-pointed. On these three occasions confirma tion by the council seems to have been considered necessary under the act, or at least desirable, for the several appointments were in fact confirmed. On January 1, 1915, the situation was that of a council out of harmony with the new nomination of respondent Soffel for a twomayor. The latter sent to the council the PARKER, J. The information charges both Rowe and Soffel with usurpation of the office of city auditor of the city of Newark. As the case has developed on the record and briefs, the question to be deter-year term, and it was laid on the table. The mined is: Which one of them was, at the name was sent in for a one-year term. Again, same thing occurred a year later, when the date of filing the information, entitled to on January 1, 1917, the mayor sent in the the office? And the determination of this name of Soffel for a two-year term, and it question depends upon the effect to be given to the act of 1907 (P. L. p. 705, superseding day, evidently on the theory that the act was once more laid on the table. The next P. L. p. 680; Comp. Stat. p. 964, pl. 1376), of 1907 entitled him to make the appointentitled "An act concerning the government ment irrespective of consent by the council, of cities of the first class," and which is he notified the city clerk in writing of the commonly known as the "Ripper Act." It is appointment of Soffel, who thereupon gave in two sections, the second being a repealer bond and took the required oath, and atof inconsistent legislation, and the first read-tempted to take possession of the office. but ing as follows: "In cities of the first class the terms of office of all city officers, members of city boards and other employés appointed by the mayor thereof, whether for a definite or an indefinite term, shall expire with the term of such mayor, and the successors of such officers, members of city boards and employés shall be appointed by the incoming mayor and shall hold such positions during the term of the mayor so appointing, but the provisions hereof shall not apply to the of was partly prevented by Rowe, who claims to be entitled to hold over on the ground that no successor to himself had been legally appointed and qualified. if the act of 1907 applies to the office of city From what has been said it is plain that, auditor of Newark, and if under that act confirmation of the mayor's appointment is necessary, Rowe is entitled to the office as holding over until his successor is appointed |