TRENCHARD, J. Andrew Setterstorm, the plaintiff, a farmer living near Metuchen, was driving home at about fivethirty o'clock on the afternoon of December 22d, 1906, when he was run into from behind by an automobile which overtook him. The collision threw the plaintiff out of his farm wagon violently to the ground and injured him severely.

This action was brought in the Supreme Court to recover for such injuries, and the trial at the Middlesex Circuit resulted in a verdict for the plaintiff of $2,000.

The defendant obtained this rule to show cause why the verdict should not be set aside.

The evidence was most persuasive that the automobile was being driven at a high rate of speed without lights, and that the plaintiff, when overtaken, was where he had a right to be on the public highway and was without fault. So it seems to be here conceded that the driver of the automobile was negligent and that there was no contributory negligence upon the part of the plaintiff.

The only reasons for setting aside the verdict urged by the defendant are-first, that the defendant is not responsible for the acts of the driver, and second, that the damages are excessive.

We think that the question of this defendant's responsibility was properly submitted to the jury.

The car was being taken from the warerooms of the defendant, the De Dietrich Import Company, in New York (the seller), to Rowan & Company, in Philadelphia (the purchasers), and the collision took place on the way, at Metuchen. The car bore the defendant's New Jersey license number

Setterstorm v. De Dietrich Import Co.

78 N. J. L.

"M 223." James Hillyard was driving the car, and Mr. Blair, a member of the firm of Rowan & Company, was riding with him. Besides these two there was another man in the car whom the evidence seems to show was the mechanic or demonstrator of the defendant.

The contention of the defendant company is that Hillyard, the driver of the car, was not in its employ, nor under its control, and that, therefore, the company is not responsible for his negligence.

Mr. Blair, a witness called by the plaintiff, testified in effect that the automobile was to be delivered by the defendant to Rowan & Company in Philadelphia, and, since there had been no demonstration of the car, a representative of Rowan & Company had the privilege of riding in it to Philadelphia with the demonstrator; that it was to avail him of that privilege that he went to defendant's warerooms in New York; that the defendant company hired the driver and paid him and instructed him to deliver the car for the company to Rowan & Company in Philadelphia; that he (Blair) had never seen Hillyard, the driver, before that day, and did not hire nor pay him and exercised no control over him or the machine. He is corroborated by the written contract between the parties, by the telegram sent by the defendant company to Rowan & Company, by the statement first made by Hillyard, and by the fact that after the car was wrecked at the accident it was towed back to the defendant's place in New York for repairs by the head demonstrator of the defendant company, who went to Metuchen for that purpose.

The defendant attempted to overcome the force of this proof upon the part of the plaintiff by the testimony of its manager, of its bookkeeper and by that of Hillyard, the driver. By their testimony the defendant sought to show that Hillyard was not and never had been in their employ, and that the car was delivered by them in New York to Mr. Blair, the agent of Rowan & Company, and that Hillyard was employed by Blair to drive the car on the trip in question, and was therefore the servant of Rowan & Company. But in view of the testimony of Blair, corroborated as it is in its

49 Vroom.

Twitchell v. Sea Isle City.

important features by the defendant's telegram, Hillyard's first statement, and the entries in the books of the defendant company, we think the question at issue was properly submitted to the jury, and we cannot say that the verdict is so clearly against the weight of evidence as to justify us in disturbing it upon that ground.

But the defendant insists that the verdict is excessive.

It appeared that the plaintiff, who was thirty-seven years old, was considerably bruised, causing him to be confined to the house for some time, and that, in addition thereto, he was ruptured. The testimony is that the rupture is permanent and severe and gives and is likely to continue to give him pain, and that as a result of his injuries he is not able to do much of his ordinary work upon the farm. Besides that his horse, wagon and harness were injured. Under this state of proof we cannot say that the verdict of $2,000 is so plainly excessive as to justify this court in disturbing it.

The rule to show cause will be discharged.

SELDON TWITCHELL, PROSECUTOR, v. SEA ISLE CITY.

Argued February 16, 1909-Decided June 7, 1909.

Under the provision of the act (Pamph. L. 1906, p. 664) enabling cities other than cities of the first class to construct, purchase or otherwise acquire water works, the city council of a city cannot adopt the provisions of the act by submitting the question of its adoption to the voters coupled with a proposition that city council shall cause to be issued bonds to an amount not to exceed $50 000. and so coupled that the voters could not vote for or against one proposition without voting for or against the other.

On certiorari.

Before Justices REED, TRENCHLARD and MINTURN.

78 N. J. L.

Twitchell v. Sea Isle City.

For the prosecutor, Carrow & Kraft.

For the defendant, James M. E. Hildreth.

The opinion of the court was delivered by

TRENCHARD, J. This writ of certiorari is sued out to test the legality of certain proceedings of Sea Isle City, whereby it attempted to adopt the provisions of an act of the legislature (Pamph. L. 1906, p. 664) enabling cities other than cities of the first class to construct, purchase or otherwise acquire water works.

Section 15 of that act (Pamph. L. 1906, p. 671) provides that its provisions shall remain inoperative in any city until assented to by a majority of those of the legal voters of such city, who shall vote either for or against the adoption of its provisions, at an election to be held in such city at any time to be fixed by city council.

On August 13th, 1908, the city council of Sea Isle City adopted a resolution providing that an election be held on November 3d, 1908, to vote for or against the construction, purchase or otherwise acquiring water works, &c., as provided for by the act of 1906, and the issuance of bonds not exceeding $50,000.

The ballots provided by the proper officers and used at the election held in pursuance of the resolution, contained printed. words "For Against," preceding the words "The construction, purchasing or otherwise acquiring water works" (reciting the language of the resolution, including its concluding words) "and that common council shall cause to be issued bonds to an amount not to exceed the sum of $50,000.”

The election resulted in ninety-five votes being cast in favor of the proposition and ninety votes against it.

Among other reasons for setting aside the proceedings, assigned by the prosecutor, a taxpayer and landowner of the city, is this: That the proceedings are invalid because the proposition submitted to the voters was not the proposition directed to be submitted to them by the act.

49 Vroom.

Twitchell v. Sea Isle City.

We think the proceedings invalid for the reasons we will

now state:

As we have pointed out, section 15 of the act (Pamph. L. 1906, p. 671) provides that the act shall remain inoperative in any city until assented to by a majority of the voters of such city, who shall vote either for or against the adoption of its provision. The section further provides that upon the ballots provided at the election there shall be printed the following words, "For a water plant," and immediately thereunder the proposition "Against a water plant," and the voter may vote to adopt the act by obliterating the second proposition or may vote to reject the act by obliterating the first proposition. The question, therefore, to be presented to the voter was the adoption of the provisions of the act.

Assuming, but not deciding, that there was printed upon the ballots in question matter which, if assented to by a majority of the voters, would result in the adoption of the provisions of the act, yet there was coupled with the proposition thereon printed the question of a bond issue of $50,000.

An examination of the entire act discloses no authority for submitting the question of a bond issue to the voters. On the contrary. section 10, as amended by the act of 1907 (Pamph. L., p. 565), provides that it shall be lawful for common council to cause to be issued bonds for the purposes of the act to an amount to be determined by common council.

The natural effect of coupling with the question of the adoption of the act a proposition for a bond issue to be limited to $50,000 was to mislead the voters, because it tended to delude them into believing that by their voting to issue not more than $50,000 of bonds, common council would be precluded from exceeding that sum, whereas, in fact, under the act council was not so limited.

Moreover, the proposition for the adoption of the act and the question of bond issue were so coupled together as to be, for voting purposes, inseparable and the voter could not vote for or against one without voting for or against the other.

Whether the resolution and ballots were faulty in other respects, and whether the notice of the election was sufficient,