On appeal from the Supreme Court.
For the defendant-appellant Maryland Casualty Company, Charles Schmidt (James A. Major, of counsel).
For the plaintiffs-respondents, Durand, Ivins & Carton.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court, on a verdict rendered at the Monmouth Circuit by a jury, in favor of the plaintiffs against the defendant Maryland Casualty Company.
The plaintiff Anna McBride was injured by an exploding rocket at a public display of fireworks in charge of the defendant David Calvano at Sprink Lake, New Jersey, July 4th, 1938.
The sale, exposure for sale, use, distribution or possession of fireworks or pyrotechnics in the State of New Jersey, except as provided in the statute, is declared by the legislature to be against the public health, safety and welfare of the people of the state. (Chapter 51, section 1, Pamph. L. 1937 (R.S. 21:3-1)), and are prohibited except that the governing body of any municipality, other than a county, upon application in writing and upon the posting of a suitable bond, may grant a permit for the public display of fireworks by designated organizations or individuals under certain conditions named in the statute. (R.S. 21:3-2-3-4.)
R.S. 21:3-5 (chapter 51, section 5, Pamph. L. 1937) describes the requirements of the bond to be furnished by the licensee as follows:
"The governing body of the municipality shall require a bond deemed adequate by the municipality from the licensee in a sum not less than twenty-five hundred dollars conditioned for the payment of all damages, which may be caused either to a person or persons or to property, by reason of the display so as aforesaid licensed, and arising from any acts of the licensee, his agents, employees or subcontractors. Such bond shall run to the municipality in which the license is granted, and shall be for the use and benefit of any person, persons, or the owner or owners of any property so damaged, who is or are authorized to maintain an action thereon, or his or their heirs, executors, administrators, successors or assigns."
David Calvano, a manufacturer and exhibitor of fireworks, made his application for a permit to display fireworks at Spring Lake and furnished a bond as required by the statute, whereby he, as principal and the Maryland Casualty Company,
as surety, were held and bound unto the Borough of Spring Lake in the sum of $2,500 lawful money of the United States of America to which payment, well and truly to be made, they bound themselves, their "successors and assigns, jointly and severally, firmly by these presents." The condition of the bond reads as follows:
"That whereas David Calvano has applied to the governing body of the Borough of Spring Lake, New Jersey, for a permit for the public display of fireworks on July 4th, 1938, and will comply with all the provisions of Chapter 51 of the Laws of 1937, State of New Jersey, and in consideration thereof, the Principal and Surety hereby covenant and agree that they will pay all damages which may be caused either to a person or persons or to property, by reason of the display so as aforesaid licensed, and arising from any acts of the licensee, his agents, employees, or subcontractors, which obligation shall be for the use and benefit of any person, persons, or the ...