On appeal from a judgment of the First District Court of the City of Newark.
For the defendant-appellant, Sugrue & Hoey.
For the plaintiff-respondent, Cox & Walbury (William H. D. Cox, of counsel).
Before Justices Bodine, Porter and Colie.
The opinion of the court was delivered by
COLIE, J. Schwartz Brothers Truckmen, Inc., hereinafter referred to as Schwartz Brothers, plaintiff-respondent, entered into a contract with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 478, defendant-appellant, hereinafter referred to as Local 478, which contract was to remain in effect until September 1st, 1940. Section 18 thereof reads as follows:
"Should any difference arise between employer and employe the same shall be submitted to arbitration by both parties; failing to agree they shall mutually appoint an umpire whose decision shall be final and binding. If a teamster or chauffeur is removed from service for any doubtful cause he shall have a fair and impartial investigation within three days, at which he may be present and have the right to call in a member of the committee who shall be present. No strike shall be called pending a decision."
On or about August 3d, 1939, Whitehead, an employe of Schwartz Brothers, was discharged for cause, and an investigation conducted within three days. On or about September 11th, 1939, Wiatrosky, another employe, was discharged for
cause and an investigation conducted within three days. On October 19th, 1939, Leo Carlin, president of Local 478, demanded the re-employment of Whitehead and Wiatrosky. Schwartz Brothers refused and called to Carlin's attention the provisions of section 18, offering to arbitrate in accordance therewith. Carlin's answer was the calling of a strike which lasted from October 19th, 1939, to October 25th, 1939. To recover damages arising from a breach of the contract, Schwartz Brothers brought suit against Local 478 in the First District Court of the City of Newark and recovered judgment in the sum of $383.85 and costs. From this judgment the present appeal is taken. Appellant argues error by the trial court in admitting incompetent and immaterial evidence relating to damages. One Kappell, an accountant and auditor of the books of Schwartz Brothers, testified that at the request of the attorney for Schwartz Brothers, he had examined the company's figures for 1939 and from them was able to testify as to the earnings per day of the trucks, over and above all costs. The record follows:
"Mr. Sugrue: I object to this, if the court please, on the ground that the figures and records have not been purposely identified. They ...