text:
    JOSEPHINE PERILLO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF RALPH J. PERILLO, DECEASED AND JOSEPHINE PERILLO, INDIVIDUALLY AND AS MOTHER AND NATURAL GUARDIAN OF JUNE ANN PERILLO AND RALPH PERILLO, PLAINTIFFS-APPELLANTS, v. THOMAS J. DREHER AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1973
    Decided January 16, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Peter J. Giovine argued the cause for appellants.

      Mr. Michael E. Cunningham, argued the cause for respondent Dreher (Messrs. Starkey, Turnback & White, attorneys) .

      Mr. John S. Fitzpatrick, Deputy Attorney General, argued the cause for respondent State of New Jersey (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, First Assistant Attorney General, of counsel).

      Mr. William G. Marriott appeared for respondent State of New Jersey (Messrs. Lane and Evans, attorneys).
   Per Curiam.

This is a wrongful death action instituted on November 9, 1972 by Josephine Perillo as administratrix ad prosequendum against Thomas J. Dreher and the State of New Jersey. On December 31, 1970 Ralph Perillo, a project manager for Kaufman and Broad residential developers,' was involved in a collision on Hooper Avenue, Dover Township, with a vehicle driven by Trooper Thomas J.'Dreher of the New Jersey State Police. Perillo died of injuries sustained in the collision on January 12, 1971.

By letter dated December 11, 1972 the State of New Jersey instructed its insurance carrier, Hartford Insurance Group, to assert the defense of' sovereign immunity. Following argument on the motion on March 23, 1973, Judge Grossman ordered summary judgment in favor of defendant State of New Jersey. While no motion for leave to appeal was made, we have élected to entertain the appeal on its merits because of the obvious public policy question raised. The Attorney General has been granted leave to intervene.

In Willis v. Department of Conservation and Economic Development, 55 N. J. 534 (1970), the doctrine of sovereign immunity was abolished. However, the effective date of this rule was postponed until January 1, 1971 to allow “an expression of legislative will.” Soon thereafter, the Legislature enacted L. 1970, c. 98, § 1, effective June 15, 1970, which extended the bar until July 1, 1971. The statute was subsequently amended twice, extending the bar on actions against the State in tort to July 1, 1972. The statute in its final form, N. J. 8. A. 52:4A-1, provided:

Except for actions founded upon the Constitution of this State or the United States or an express provision of the statutory laws of this State, no action shall be instituted or continued against the State or any department or other agency thereof for the recovery of money damages, based on tort, where the cause of action accrues prior to July 1, 1972.

On July 1, 1972 the New Jersey Tort Claims Act, N. J. S. A. 59 :1 — 1 et seq., became effective and specifically provided in section 12 — 3 for prospective application only:

This act applies only to claims that accrue on or after its effective date. Claims that accrued prior to the effective date of this act are not affected by this act but shall continue to be governed by the law applicable thereto prior to the effective date of this act; provided however that this act shall apply to the suit presently pending between Willis and Department of Conservation and Economic Development, Superior Court, Docket No. L-9817-66.

I

Plaintiff argues that N. J. S. A. 52 :4A-1 is interim legislation in the sense that it imposes a moratorium only, rather than a temporary reinstatement of the pre-Willis rule. In P. T. & L. Construction Co. v. Commissioner, Department of Transportation, 57 N. J. 439 (1971), the court adopted the Attorney General’s interpretation of N. J. S. A. 52:4A — 1 of interim legislation. In view of this concession, the court found that the purpose of the statute was not to repudiate the State’s contractual obligations. Plaintiff seeks to extend this interpretation to an action in tort against the State. It must be recognized that in the context of governmental contract immunity such an interpretation was necessary to avoid the possibility of an unconstitutional impairment of contract rights. No problem of a similar dimension is present in the context of governmental tort immunity to warrant an extension of second P. T. & L. rationale to this case. In fact, the third P. T. & L. Construction Co. v. Commissioner, Department of Transportation, 60 N. J. 308, 315 (1972), specifically recognized the different policy considerations applicable'to tort claims. It should also be noted that N. J. S. A. 52:4A-1 was amended to continue the bar to claims in tort after third P. T. & L.

As amended, the language of the statute does not lend itself to an interpretation of moratorium. The California experience is illuminating on this point. Following Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457 (Cal. 1961), in which the doctrine of governmental tort immunity was judicially abrogated, the Legislature enacted L. 1961, c. 1404, § 1, which in language similar to our N. J. S. A. 52:4A — 1 reinstated governmental tort immunity. However, section 4 of the same statute expressly provided that claims arising after Muslcopf would be recognized at a later date. Section 4 provided in part:

On or after [date], an action may be brought and maintained in the manner proscribed by law on any cause of action which arose on or after February 27, 1961 [date of Muslcopf] and before [date moratorium expired] and upon which an action was barred during that period by the provisions of this act, * * *'. ‘

In Corning Hospital District v. Superior Court, 57 Cal. 2d 488, 20 Cal. Rptr. 621, 370 P. 2d 325 (Cal. 1962), the court held that the statute obviously did.not permanently stay the rule of Muslcopf. Yet the same court in Thelander v. Superior Court of Placer County, 58 Cal. 2d 811, 26 Cal. Rptr. 643, 376 P. 2d 571 (Cal. 1962), recognized that legislation could be enacted during the moratorium period reinstating governmental tort immunity.

While the New Jersey statute is unquestionably interim in the sense that it is temporary, it is barren of any provision which specifically indicates that plaintiff’s cause of action will be entertained after July 1, 1972.

II

Plaintiff next argues that Czyzewski v. Schwartz, 110 N. J. Super. 255, 259 (App. Div. 1970), recognizes Willis as the governing rule after January 1, 1971. Czyzewski is hardly authority for this proposition since it was decided prior to the effective date of N. J. S. A. 52:4A-1. Moreover, the majority decision was addressed to the question of the trooper’s individual liability.

Ill

Plaintiff contends that if N. J. S. A. 52:4A-1 temporarily reinstates governmental tort immunity, and if N. J. S. A. 59:1-1 et seq. retroactively applies only to the Willis claim, the statutes are unconstitutional.

The Legislature may, within constitutional limits, nullify or qualify a ruling. Rosenberg v. North Bergen, 61 N. J. 190 (1972). See also, N. J. S. A. 2A:53A-7 et seq., which largely restores the charitable immunity doctrine discarded in Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29 (1958). In Egan v. Erie Railroad Co., 29 N. J. 243 (1959), Justice Proctor observed:

There is no question that the Legislature, subject to constitutional limitations, may fix the State’s policy as to the rules of conduct which result in liability or non-liability. * * * In such circumstances it is the duty of the courts to apply the legislative will notwithstanding that it may conflict with the court’s own philosophy, [at 252]

Plaintiff seems to argue that a legislative reinstatement of sovereign immunity deprives plaintiff of a vested right. In Rosenberg v. North Bergen, above, a statute limiting the judicially expanded tort immunity of architects and contractors was upheld. There, plaintiff claimed that the statute, N. J. S. A. 2A:14-1.1 as applied, barred her cause of action before it had arisen. In response to this contention the court observed:

This formulation suggests a misconception of the effect of the statute. It does not bar a cause of action; its effect, rather is to prevent what might otherwise be a cause of action, from ever arising. * * * The injured party literally has no cause of action. * * * The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. [61 N. J. at 199]

The present case is analogous to the Rosenberg situation. Prior to Willis plaintiff had no cause of action against the State, and prior to the accident the Legislature temporarily reinstated the State’s immunity. Therefore, plaintiff never had a cause of action against the State.

Plaintiff’s argument that the Legislature should have provided coverage to all parties whose cause of action accrued after January 1, 1971 may be answered shortly by observing that courts do not question legislative policy or wisdom. N. J. Sports & Exposition Authority v. McCrane, 61 N. J. 1, 30 (1972).

The next prong of plaintiff’s constitutional argument is whether a rational basis exists for a differentiation between the claimant in Willis and all other similarly situated claimants. On the question of equal protection the court has observed in N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295 (1957) :

The burden- of demonstrating that á statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all' organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective- of the legislation. But the second proposition is qualified by limitations which compounded the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. * * The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of “some substantial consideration of public policy or convenience or the service of the general welfare.” * *' * Hence it may “stop short of those eases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.” * * * [at 300-301]

See Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949); Two Guys From Harrison, Inc. v. Furman, 32 N. J. 199, 218 (1960).

A similar argument that prospective application of Willis violated equal protection was rejected in Harris v. State, 118 N. J. Super. 384, 389 (App. Div. 1972), rev’d on other grounds 61 N. J. 585 (1972). We noted:

The short answer to this contention is to be found in Willis where, at 55 N. J. 541, the court refuses retroactive application and rejects “other claims in being,” but permits Willis to proceed “* * * for the practical reason that case law is not likely to keep up with the needs of society if the litigant who successfully champions a cause is left only with that distinction.” Incentive “to challenge existing practices or prior holdings which, in the public interest, ought to be reviewed,” reasonably justifies disparity of treatment.

Plaintiff argues that Levy v. Louisiana, 391 U. S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968), and Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972), require a finding that the prospective application of the New Jersey Tort Claims Act to all but the Willis claim violates the equal protection clause of the Fourteenth Amendment. In Levy and Weber illegitimate children were omitted from statewide compensation schemes. The court held that the status of illegitimacy bore no reasonable relation to the statutory purpose, i. e., compensation of dependents. However, prospective application of the Tort Claims Act is a state of fiscal and administrative necessity. Moreover, allowance of the Willis claim represents legislative recognition of established judicial policy to provide relief to the litigant-before the court.

IY

Prior to instituting suit plaintiff received an assurance from the Executive Director of the Office of Eiscal Affairs, New Jersey State Legislature, that the State would not assert the defense of sovereign immunity in any judicial proceeding. Plaintiff claims that by this 'action the State waived the defense of sovereign immunity.

N. J. 8. A. 52:17A-4(c) vests the Attorney. General with the exclusive power to control all litigation to which the State is a party. Claims against the State are processed through a Subcommittee on Claims of the Joint Legislative Appropriations Committee; the Legislature, however, maintains no control over litigation absent a statutory modification of the Attorney General’s power. A legislative staff “waiver” accordingly does not bind the State, and it is undisputed that the Attorney General specifically authorized the use of the sovereign immunity defense by the insurance carrier in this ease under the terms of the State’s insurance coverage.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NORMA BOYD, APPELLANT, v. DEPARTMENT OF INSTITUTIONS AND AGENCIES, DIVISION OF PUBLIC WELFARE, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 10, 1973
    Decided January 15, 1974.

      Before Judges Handler, Meanor and Kole.

      Ms. Randall W. Westreich argued the cause for appellant (Mr. Rolert L. Doris, Jr., Director, Essex County Legal Services, attorney).

      Mrs. Joan W. Murphy, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   Per Curiam.

This is an appeal from a decision of the Division of Public Welfare denying appellant’s claim for benefits.

On April 4, 1972 appellant’s husband informed her that he had applied for assistance under the Aid to Families of the Working Poor program (AFWP). The husband deserted her and their children shortly thereafter. Appellant claims that she called the Essex County Welfare Board concerning her nonreceipt of AFWP funds and was assured that her check was in the mail. In fact, no application had been made. There was evidence adduced below that another family with the same surname had made a similar application and the possibility surfaced that confusion resulting from this fact led to the erroneous information appellant claims to have received.

Appellant had borrowed $500 to pay outstanding bills. She claims that in reliance upon the representation that her AEWP check was on the way, she made only a token payment on her Public Service bill with the result that her utilities were cut off. She says that had she known that no AEWP check would be forthcoming, she would have paid Public Service and prevented the shutoff. She claims that the Essex County Welfare Board is estopped from denying her AEWP benefits.

There is no allegation that the asserted misrepresentation concerning the AEWP payment was other than an innocent one. In light of this plus the general reluctance to apply estoppel against governmental agencies, Summer Cottagers' Ass’n of Cape May v. City of Cape May, 19 N. J. 493 (1955), we find the refusal below to honor the estoppel argument to be free from error.

On April 24, 1972 appellant applied for benefits under the Aid to Families with Dependent Children program (AEDC) and has been receiving such benefits since the date. In the alternative, she claims that her need for funds with which to pay her Public Service bill qualifies her for emergency assistance under N. J. A. C. 10 :82-12.11. (It might be noted that appellant’s utilities have long since been restored.) This regulation governs the supply of emergency assistance, but requires that the emergency be one for which the applicant had no advance opportunity to plan to meet. N. J. A. C. 10 :82 — 12.11 (c). Deeming the recognized inevitability of utility bills to present an expense for which ample advance planning was afforded, the claim for emergency assistance was denied.

Appellant counters with the assertion that the above New Jersey regulation conflicts with 42 U. 8. C. A. § 606(e) (1) which defines "emergency assistance,” and upon this premise argues that the New Jersey regulation must give way. We have no quarrel with the conclusion if the premise is accurate, but find this not to be so. We do not read the federal statute as attempting an exclusive definition of the term “emergency” for all situations under which emergency assistance may he provided. Rather we think the New Jersey regulation refines the term according to its general common sense understanding.

Affirmed.


author: Lane, J. S. C.

text:
    TOWNSHIP OF MANALAPAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, IN THE COUNTY OF MONMOUTH, PLAINTIFF, v. GERALD K. LOEB, ALLEN. BARRY BRANDT AND JACK P. SWEITZER, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 11, 1974.

      Mr. Marvin E. Schaefer argued the cause for plaintiff.

      Mr. William J. Hamilton, Jr., argued the cause for defendant, Gerald Loeb.

      Mr. Alexander D. Lehrer argued the cause for defendant, Jack P. Sweitzer (Messrs. Anschelewitz, Barr, Ansell & Bonello, attorneys).

      Messrs. Schapira, Steiner & Walder, attorneys for defendant, Allen Barry Brandt.
   Lane, J. S. C.

This matter is before the Court on plaintiff’s motion for summary judgment. The complaint is for a declaratory judgment whether plaintiff is authorized to pay for legal services incurred by defendants arising out of an indictment.

Defendant Loeb was at all relevant times and still is a committeeman of Manalapan; defendant Brandt was at the time of the alleged criminal acts the mayor of the township, and defendant Sweitzer was at the time of the alleged criminal acts the township business administrator.

On or about September 12, 1972 the grand jury in Monmouth County handed up an indictment which charged Loeb with corruptly using a telephone credit card for personal calls and incurring an expense in excess of $200 which was paid from township funds. Brandt was charged with having knowledge of the improper use of the credit card and failing to take the necessary steps to see that the township was reimbursed for the amount of the calls. Sweitzer was similarly charged.

The indictment was tried in May 1972. It was dismissed as against Brandt and Sweitzer. A jury found Loeb not guilty.

Plaintiff seeks a declaratory judgment whether N. J. S. A. 40:148-1 et seq., or N. J. S. A. 40:48-7 empowers plaintiff to pay the legal fees incurred by defendants in defense of the indictment.

N. J. S. A. 40:148-1 and N. J. S. A. .40:48-7 are general statutes authorizing the raising of money by taxation for proper municipal purposes. There is no statutory authority for the indemnification of municipal officers for the costs of defense of a criminal action charging what amounts to official misconduct.

In seeking authorization to make the payments, plaintiff relies upon Coll v. City of Cape May, 113 N. J. Super. 598 (Law Div. 1971). That case, however, is clearly distinguishable. The basis of the liability for counsel fees was a libel action brought against the mayor. The court found that the statements made by the mayor forming the basis of the libel action were made by him as a representative of the city and that his action which was confirmed by the action of the city council was incident not only to the powers of the mayor alone but also of the city council.

Here under no circumstances can it be said that the acts charged against defendants in the indictment were for the benefit of the municipality.

56 Am. Jur. 2d, Municipal Corporations, Etc., § 208, states in part: “Thus, a municipality has no power to reimburse an official for his expenses incurred in defending himself from charges of official misconduct.” [p. 266]

In 64 C. J. S., Municipal Corporations, § 1837, it is stated: “A municipality may not pay, nor can the legislature authorize it to pay, the expenses incurred by a public officer in defending himself against a criminal prosecution; * * [p. 341]

The New York Court of Appeals dealt with the question in a case involving the constitutionality of a statute authorizing such payment in Chapman v. City of New York, 168 N. Y. 80, 61 N. E. 108 (Ct. of App. 1901). In holding such statute unconstitutional, the court stated: “For time out of mind, in all governments where the common law prevails, a person prosecuted for crime has been compelled to pay his own expenses when he had the means of doing so. * * * It is not the duty of the public to defend or aid in the defense of one charged with official misconduct. The history of morals or jurisprudence recognizes no such obligation. When a citizen accepts a public office, he assumes the risk of defending himself against unfounded accusations at his own expense.” [61 N. E. at 109-110]

See also Schiefelin v. Henry, 242 N. Y. 581, 152 N. E. 436 (Ct. of App. 1926); City of Del Rio v. Lowe, 111 S. W. 2d 1208, 1219-1220 (Ct. of Civil App. Texas 1937), rev’d on other grounds 132 Tex. 111, 122 S. W. 2d 191 (Sup. Ct. Texas 1938).

In Powers v. Union City Bd. of Ed., 124 N. J. Super. 590 (Law Div. 1973), plaintiff sought to recover counsel fees and expenses incurred in the defense of a criminal action brought against him for extortion of monies from contractors doing business with the board of education of which plaintiff was a member. Although N. J. S. A. 18A:12-20 provides for indemnification in certain situations upon the favorable conclusion of a criminal action against a member of the board of education, the court rendered judgment in favor of defendant.

There is no genuine issue as to any material fact challenged. There will be a summary judgment declaring that plaintiff has no authority to pay the legal fees incurred by defendants in the defense of the criminal indictment.


author: Gruccio, J. S. C.

text:
    WALTER JACKSON, AN INFANT BY AND THROUGH HIS GUARDIAN AD LITEM, LULA REDFERN, AND LULA REDFERN, INDIVIDUALLY, PLAINTIFFS, v. RONALD M. HEYMANN, DIRECTOR OF MOTOR VEHICLES, LO BIONDO BROS. MOTOR EXPRESS, INC., A NEW JERSEY CORPORATION; MICHAEL DE MARIA; NATIONAL FREIGHT CO., A NEW JERSEY CORPORATION ; GREEN’S EXPRESS, A NEW JERSEY CORPORATION; AND CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, JOINTLY SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS, v. CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THIRD-PARTY DEFENDANT AND THIRD-PARTY PLAINTIFF, v. SAMUEL CURCIO, SAMUEL DONIO, AND MARK A. DE MARCO, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 19, 1973.

      Mr. Mark D'eMarco for plaintiffs (Messrs. Donio & DeMarco, attorneys).

      Mr. Leonard G. Horn for third-party defendant and third-party plaintiff, the City of Vineland (Messrs. Horn & Weinstein, attorneys).

      Mr. Edward Fishman for third-party defendants Samuel Curcio, Samuel Donio and Mark A. DeMarco (Messrs Fish-man & Spitalniclc, attorneys).

      Mr. William P. Doherty, Jr., for defendant Ronald M. Heymann, Director of Motor Vehicles.

      Mr. Irwin Kavesh for defendant National Ereight Company (Messrs. Kavesh & Basile, attorneys).

      Mr. John A. Fratto for defendant Green’s Express (Messrs. Bleakly, Siockwell & Zink, attorneys).

      Mr. Barry A. Perlow for defendants LoBiondo Bros, and Michael DeMaria (Messrs. Horuvitz & Perlow, attorneys).
   Gruccio, J. S. C.

This is a personal injury action. The facts, distinctly stated, are that on October 7, 1968 Walter Jackson, a minor, was a pedestrian on the curb at the intersection of Park Avenue and Eourth Street in Vineland, New Jersey. At approximately 8:15 a.m. he was struck by a motor vehicle, as a result of which he sustained injuries. Officers of the Vineland Police Department arrived at the scene and commenced a routine motor vehicle accident investigation. Witnesses and persons in the vicinity were interviewed and a police report was filled out. This investigation indicated that plaintiff had been struck by a tractor and trailer, or an object extending from such a vehicle. However, the police received contradictory reports as to the description of the vehicle. This preliminary investigation was followed by an extensive survey of the local trucking concerns. Unfortunately, this failed to disclose any significant facts since the descriptions obtained by the witnesses did not correspond to any vehicle operating in the vicinity of the accident. Additional witnesses were interviewed during the next four days but all possible leads proved fruitless.

Plaintiff filed suit against the director of Motor Vehicles under the Unsatisfied Claim and Judgment Act. Subsequently, an amended complaint joined LoBiondo Brothers Motor Express, Inc., and one of its drivers, Mr. DeMaria, as defendants. A second amended complaint joined National Freight Company as a defendant, while a third amended complaint joined Green’s Express as an additional defendant. The joining of these parties as defendants was apparently based upon their possible involvement in the accident and they are subjects of other motions pending before this court.

The third amended complaint also joined the City of Vine-land as a defendant on the ground that its police department had failed to carry out its sworn duty to properly investigate accidents. Plaintiff contends that the city’s conduct constitutes malfeasance which permits the city to be held liable for the injuries incurred by plaintiff. He claims that because of the city’s conduct he was unable to identify the tortfeasor and therefore denied any possibility of recovering compensation from the tortfeasor.

Finally, the city has filed a third-party complaint against plaintiff’s attorneys, Samuel Curdo, Samuel Donio, and Mark A. DeMarco, for a pro rata contribution towards any liability for which it may be held accountable. This complaint alleges that plaintiff’s attorneys had the professional responsibility to investigate and determine whether plaintiff had a cause of action. It is the city’s contention that their negligent performance of this duty is the cause of any injury sustained by plaintiff.

At the present time there are three pretrial motions before this court: (1) the city has motioned for summary judgment asserting that the plaintiff has failed to set forth a cause of action and that, as a matter of law, his complaint against the city should be dismissed; (2) the third-party defendants’ (Curcio, Donio and DeMarco) motion for summary judgment, contending that if the city succeeds on its motion, this will result, as a matter of law, in a judgment on their behalf; (3) plaintiff has motioned for the court to sever the third-party action, claiming that it presents questions of law and issues which would be prejudicial to trying the principal case, while interjecting new issues which should not be tried with the main case. Since the disposition of the city’s motion will determine the merits of the other motions, the city’s motion will be considered first.

Plaintiff alleges that the city’s police department failed to properly investigate the accident and that such conduct has prevented plaintiff from determining the identity of the tortfeasor. The city contends that as a municipality it owes no duty to plaintiff, as a victim, to prosecute a civil action for personal injuries.

The traditional law governing municipal tort liability has been subjected to a great deal of change. Recent cases have expanded liability while the traditional proprietary-governmental test has fallen into dispute. B. W. King, Inc. v. West New York, 49 N. J. 318 (1967). As to possible municipal tort liability, the question is whether or not the municipality is under a duty to act, as distinguished from a situation where the taking of any action is discretionary, or the matter involves the making of a basic governmental policy decision. Hoy v. Capelli, 48 N. J. 81 (1966); Amelchenko v. Freehold, 42 N. J. 541 (1964). Once it is determined that such a duty exists, then the municipality will be held to the standard of reasonable care under the circumstances. Bergen v. Koppenal, 97 N. J. Super. 265 (App. Div. 1967), aff’d 52 N. J. 478 (1968).

The issue before this court is whether a municipality is under a duty to conduct an investigation of an accident in order to assist the victim to recover for any injuries or damages incurred.

Officers of the police department are employees of their municipality and as such the principles of respondent superior are applicable in cases of affirmative 'wrongful acts. McAndrew v. Mularchuk, 33 N. J. 172 (1960). However, municipalities are not to be ¡held responsible for every failure of police to act. Bergen v. Koppenal, supra. Therefore, plaintiff must be able to show that the police were under a duty towards him, in order to hold the city liable for negligence.

The police department performs its duties in the interest of the general public. One of its functions is to investigate motor vehicle accidents in order to determine whether there has been a statutory violation. In addition, N. J. 8. A. 39 :A-131 requires the investigating police officer to file accident reports on forms prepared by the Division of Motor Vehicles, although the contents are not considered to be privileged or confidential. These reports enable the Director to compile data for statistical analysis which will form the basis of recommendations and regulations designed to eliminate dangerous highway conditions, determine the causes of accidents, and promote driving safety. From these reports the Director is able to perform his statutory obligation to "Investigate traffic conditions, means for their improvement and the enforcement of laws and regulations relating to traffic * * N. J. 3. A. 39 :<L-6.

In compliance with the statute, police officers file their reports with the Director of Motor Vehicles. They are utilized by the prosecutor’s office in cases requiring criminal and gwasi-criminal proceedings. However, because of their usual availability, the reports in a vast majority of cases ultimately become a part of the parties’ file in civil litigations. It is to be noted that this is a separate and secondary utilization of the reports. There is no statutory mandate requiring preparation of such reports for civil proceedings. The purpose of the reports, from the police officer’s position, is not the same as that of a civil investigator. Plaintiff here seeks to place upon, each accident investigation by a police officer the duty of a civil law investigator.

Plaintiff, in support of his position, has relied principally upon McAndrew v. Mularchuk, supra. While this case deals with the issue of municipal negligence, liability was held only after the court determined that there was a specific duty for the municipality to act. In McAndrew the court held that a municipality may be accountable in negligence for its failure to adequately train its police officers in the proper handling and use of weapons. “Loaded revolvers are dangerous instruments. Their potentiality of serious injury is such that the law has imposed a duty to employ ‘extraordinary’ care in their handling and use.” Id. at 183. Plaintiff’s reliance upon McAndrew is misplaced. The McAndrew decision is solely predicated upon the inherently dangerous nature of firearms. In the instant case no such danger exists.

In spite of the near avalanche of municipal negligence eases in our jurisdiction, no prior decision has considered the issue presented by the case at bar. This court is able to gain some insight from a recent Yew York decision, Falco v. City of New York, 34 A. D. 2d 673, 310 N. Y. S. 2d 524 (1970), which involved a similar factual situation. In Falco the plaintiff filed a suit for personal injuries by basing ¡his action on the alleged negligence of a city police officer who investigated the plaintiff’s accident. The police officer had made a gratuitous promise to the injured plaintiff to obtain the name of the other individual who was allegedly involved in the accident. The officer failed to honor his promise, thus making it impossible for plaintiff to- institute a negligence action against the driver of the other vehicle. The trial court set aside the verdict for plaintiff and the Appellate Division affirmed, stating:

There was no such relationship on the part of the plaintiff to the defendant as created a duty to use due care for the benefit of particular persons or classes of persons and as imposed liability on the part of tile municipality for negligence of the police officer. [34 A. D. 2d at 674, 310 N. Y. S. 2d at 525]

It should be noted that Falco presents a more compelling case for plaintiff, for, in addition to the police officer’s responsibility to investigate motor vehicle accidents, he had made a gratuitous promise to obtain information for the injured plaintiff.

It is the opinion of this court that, as a matter of law, a municipality does not owe a duty to victims to conduct an investigation of their motor vehicle accidents. Since the city owes no duty to plaintiff, it can not be held answerable to plaintiff in negligence. Brody v. Albert Lifson & Sons, 17 N. J. 383 (1955). This court is unwilling, absent legislation, to extend the police officer’s role in the investigation of accidents to that of an investigator for civil litigates. The issues herein presented are solely legal, no factual issues are presented; and summarv judgment is a proper vehicle for disposition of this case. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954). Therefore, judgment shall be entered in favor of defendant city. This determination of the city’s nonliability renders moot the issues submitted by the third-party defendant’s motion for summary judgment and plaintiff’s motion fox severance.


author: Michels, J. S. C.

text:
    JOSEPH F. LUTZ AND DOROTHY LUTZ, PLAINTIFFS, v. EDWARD SEMCER AND PAUL BOERGERSHAUSEN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 8, 1974.

      Messrs. Greenstone & Greenstone, attorney for plaintiffs.

      Messrs. Braff, Litvak, Ertag, Wortmann & Harris, attorneys for defendants and Township of Millbum.
   Michels, J. S. C.

Plaintiffs move before this court for leave to file a notice of late claim against the Township of Millburn pursuant to the provisions of N. J. S. A. 59:8-9, and to perfect their claim against defendant police officers.

Joseph P. Lutz (hereinafter referred to as plaintiff) instituted this action against defendant police officers of the Township of Millburn seeking damages for personal injuries allegedly sustained by him on January 27, 1973 when said defendants attempted to serve a traffic summons. His wife sues per quod. On January 27, 1973 plaintiff was driving his car in the Township of Millburn when he was stopped by defendants and served with a traffic summons for going through a stop sign, passing on the right and defective brake lights. Plaintiff alleges that while he was talking to defendants one of them closed the window of the police car on his finger and as a result 'he allegedly sustained permanent injuries to his finger and back.

On February 7, 1973 plaintiff appeared at the Millburn Municipal Court to answer the traffic summons.- The municipal court record reveals that plaintiff pleaded not guilty to the charges and informed the court that he had sustained an injury to his finger in the course of the issuance of the summons. Plaintiff stated to the court that he had retained counsel for the traffic violations, but that his attorney was unable to appear since the matter was being heard in the evening. Several days later plaintiff called the police surgeon of Millburn, informing him that he had injured his right hand and his back as a result of the foregoing incident and requested an examination. The police surgeon advised plaintiff to see his private physician.

After being hospitalized for lumbar disc surgery, which was performed on June 7, 1973, plaintiff consulted an attorney who informed him that he would present a formal notice of claim to the Township of Millburn. The notice of .motion was filed on July 10, 1973. Plaintiff bases his request for leave to file the late notice on the ground that he was not aware of the enactment of the recent New Jersey Tort Claims Act which requires that actions against public entities be preceded by a claim filed within 90 days after accrual of the cause of action. See N. J. S. A. 59 :8 — 8. Additionally, plaintiff offers as a ground for excusable neglect to file said claim that he was unaware of the seriousness of his injuries until his hospitalization in June 1973. He further bases his request for leave to file a late claim on the ground that his right to assert a claim for pain and suffering did not accrue until he incurred medical expenses greater than the amount of $1,000 under N. J. 8. A. 59:9 — 3(d).

Millburn contends that plaintiff’s delay in filing due to ignorance of the Tort Claims Act was not excusable, and that it will be sustantially prejudiced by the filing of a late notice of claim.

Presently, tort claims against public entities are governed by the New Jersey Tort Claims Act, N. J. S. A. 59:1-1 et seq., which became effective on July 1, 1972. N. J. S. A. 59 :8 — 3 provides:

No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.

N. J. S. A. 59:8-8 provides for the time for presentation of claims as follows:

A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. * *

N. J. S. A. 59 :8-9 provides with respect to a notice of late claim:

A claimant who fails to file notice of his claim within 90 days as provided in section 59 :S-S of this act, may, in the discretion of a judge of the superior court, be permitted to file such notice at any time within 1 year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59 :S-8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim.

Tims, a plaintiff may in the discretion of the conrt be permitted to file a late notice of claim upon a showing of sufficient reason for the delay, provided that the defendant is not substantially prejudiced thereby. There does not appear to be any reported decision in New Jersey on this issue, and therefore the court has looked to the law of California for guidance in determining whether to grant plaintiff’s motion for leave to file a late notice of claim. The Report of the Attorney General’s Task Force on Sovereign Immunity published in May 1972 recommends that New Jersey enact a tort claims act following the basic statutory approach contained in the California Tort Claims Act of 1963.

The California cases hold uniformly that the determination of whether delay in filing is excusable rests in the discretion of the trial judge. Viles v. California, 66 Cal. 2d 24, 56 Cal. Rptr. 666, 423 P. 2d 818 (Sup. Ct. 1967); Martin v. City of Madera, 265 Cal. App. 2d 76, 70 Cal. Rptr. 908 (D. Ct. App. 1968); Clark v. City of Compton, 22 Cal. App. 3d 522, 99 Cal. Rptr. 613 (Ct. App. 1971); Black v. County of Los Angeles, 12 Cal. App. 3d 670, 91 Cal. Rptr. 104 (Ct. App. 1970).

Plaintiff relies on the case of Viles v. California, supra, in support of his argument that because of excusable neglect he should now be permitted to file this late claim. In Viles an application was made by plaintiff for leave to present a claim against the state for the wrongful death of his wife after the statutory period of 100 days had expired. The applicable California statute, Cal. Gov. Code § 912, provided in pertinent part (at 820) :

* * *(]}) The superior court shall grant leave [to file a late claim] if the court finds that the application to the board [to file late] was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied * * * and that:
(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity * s’ * establishes that it would be prejudiced if leave to present the claim were granted; * * *.

The petition was denied, and plaintiff appealed to the California Supreme Court, which reversed the trial judge and granted relief to plaintiff based on his mistaken conclusion, after having been informed by insurance adjustors that he had a year in which to bring a,n action, that an action against the state could be brought in the same manner and within the same time limits as one against a private person. The court held that the mistake was excusable, not being an unreasonable misconception nor one that an average prudent person would not have formed under the circumstances.

However, in Tammen v. County of San Diego, 66 Cal. 2d 468, 58 Cal. Rptr. 249, 426 P. 2d 753 (1967), the California Supreme Court declined to reverse the trial court which had denied plaintiff the right to file a late claim based on, among other things, the ground of excusable neglect, mistake, surprise or inadvertence. In that case plaintiff based its failure to file within the prescribed time limit on, among other things, the mistake of his counsel that the law regarding the presentation of claims to public entities was “uncertain.” The court, in holding that the delay was not caused by a mistake of law constituting excusable neglect, stated:

* * * [I]t has been held that “ignorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief (citations) and such facts will certainly sustain a finding denying relief. [Citations],
“There is a somewhat tenuous line between a mistake of law and ignorance of law. The difference is probably only one of degree. In such cases all factors involved must be considered to determine whether relief should be granted or denied. While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. [Citation] In the instant case we are not interested in the question as to whether the trial court could have granted relief based on the claimed mistake of law, but, since the trial court denied relief, only in whether such holding was within its discretion.” (Security Truck Line v. City of Monterey, 117 Cal. App. 2d 441, 445 [3, 4], 256 P. 2d 366, 369, 257 P. 2d 755.)
In A & S Air Conditioning v. John J. Moore Co., 184 Cal. App. 2d 617, 620 [7, 8] 7 Cal. Rptr. 592, 594, the court said: “However, a mistake as to- law does not require relief from default as a matter of law. [Citation], The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.” Excusable neglect is “that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs, 128 Cal. App. 2d 273, 276 [5], 274 P. 2d 930, 932. [58 Cal. Rptr. at 254, 426 P. 2d at 758]

The court rejected plaintiff’s further assertion that the identity of the public entities responsible for the maintenance of the highway on,which she was injured was not discoverable within the statutory period for filing the claim, holding that inquiry should have been made by plaintiff of the governing body of the city or the department of public works as to the responsibility for the maintenance of the highway. It was noted by the court:

* * It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter’s obligation to their clients. (Hummel v. Hummel, 161 Cal. App. 2d 272, 277 [4], 326 P. 2d 512. The court therefore did not act arbitrarily in disbelieving that the identity of the public entities responsible for the condition of the state highway could not have been discovered until the indeterminate “month of December.” [Id. at 255, 426 P. 2d at 750-760]

In Martin v. City of Madera, 265 Cal. App. 2d 76, 70 Cal. Rptr. 908 (D. Ct. App. 1968), plaintiff filed a petition for leave to present a late claim more than 11 months after he allegedly became ill as a result of drinking water from the defendant City of Madera’s water supply, on the grounds that he was physically and mentally incapacitated during all of the 100-day statutory period for filing, and that the delay was due to mistake, inadvertence and excusable neglect. The trial judge denied the petition, and plaintiff appealed. The District Court of Appeals declined to reverse the trial court, holding that the evidence authorized the finding that plaintiff was not totally incapacitated, and that there was not a sufficient showing of excusable neglect. It was declared by the court, quoting Tammen v. County of San Diego, supra:

Mere ignorance of the law, at least where coupled with negligence in failing to look it up, is not sufficient cause to allow a petitioner to file a late claim against a public entity (Tammen v. County of San Diego, 66 Cal. 2d 468, 476, 58 Cal. Rptr. 249, 426 P. 2d 753; Security Truck Line v. City of Monterey, 117 Cal. App. 2d 441, 445, 256 P. 2d 366, 257 P. 2d 755). Consequently, the fact alone that plaintiff did not know he was required to file a claim against the City of Madera within .100 days from August 13, 1965, in order to preserve his cause of action against the cily was not, of itself, a sufficient reason for the trial judge to find excusable neglect under paragraph (c) (1) of section 916.6. [70 Gal. Rptr. at 911]

Bennett v. City of Los Angeles, 12 Cal. App. 3d 116, 90 Cal. Rptr., 479, 482 (Ct. App. 1970), appears to be in point. There, petitioners filed a notice of claim 19 days beyond the 100-day statutory period against the City of Los Angeles for the death of their son, who was killed when a cement wall, allegedly left in a hazardous condition by the city, fell and buried him. Petitioners asserted “'inadvertence and neglect, excusable in view of the fact that no attorney had been consulted until- after the 100-day period had elapsed and due to the emotional state of mind of the claimants following the loss of their minor son5 which disabled them from tending to their affairs £as they normally would.5 55 Additionally, petitioners alleged that a letter of condolence sent to them by the city misled them into believing that the city would voluntarily reimburse them for their loss. The petition was denied by the trial court which found that the only showing made by plaintiffs as to the reason for their delay was that they did not know that the filing of a claim was required until they consulted an attorney after the statutory period for filing had already expired. On appeal the court affirmed, holding that ignorance of the statute, when the result of the failure to consult an attorney until after the expiration of the statutory period for filing, did not entitle the claimants to relief.

Here, plaintiff, an anesthesiologist, was fully aware of the incident which gave rise to his injuries. Apparently the injuries were not so insignificant that plaintiff dismissed them from his mind, because he called the police surgeon to apprise him of the fact that he sustained some injury in this incident shortly after it had occurred, and pointed this out to the municipal court at the traffic hearing. Moreover, plaintiff even consulted an attorney with respect to the traffic violations with which he was charged. His failure, apparently, to consult an attorney to advise him of his rights against the municipality with respect to the injuries he allegedly sustained until after the statutory time period expired is certainly not sufficient reason under our statute to relieve him from the requirements of filing a timely notice of claim against tlie municipality. Mere ignorance of the law is not a sufficient basis to excuse compliance with the requirements of this remedial statute.

Accordingly, the court is of the view that under the circumstances here present plaintiff has failed to establish sufficient reasons for his failure to file a notice within time to relieve him from the requirements of notice set forth in the New Jersey Tort Claims Act.

furthermore, plaintiff’s argument that his right to sue for pain and suffering did not accrue until he incurred medical expenses over $1,000 under N. J. S. A. 59:9-2(d) lends no support to his request for leave to file a late notice on the grounds of excusable neglect.

N. J. S. A. 59:9-2(d) provides in pertinent part:

No damnges shall be awarded against a public entity or public employee for puní and suffering resulting from any injury; provided, however, 1hal ¡his limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medien! treatment expenses are in excess of $1,000.00. * * *

The section refers to the damages which are allowable in an action against a public entity or public employees. It lias no hearing whatsoever on the time of the accrual of plaintiff’s cause of action.

N. J. S. A. 59 :8 — 1 provides that the notice provisions of the act do not affect the time of accrual of an action. It is well recognized that a cause of action accrues when facts exist which authorize one party to maintain an action against another. Marini v. Wanaque, 37 N. J. Super. 32 (App. Div. 1955) ; Band’s Refuse Removal, Inc. v. Bair Lawn, 62 N. J. Super. 522 (App. Div. 1960). Any wrongful act for which the law provides a remedy resulting in injury to the person, though slight, gives right to institute an action therefor, and a cause of action accrues at that time. Tortorello v. Reinfeld, 6 N. J. 58, 65 (1950).

In Rankin v. Sowinski, 119 N. J. Super. 393, 401 (App. Div. 1972), an action against a dentist for the alleged negligent extraction of an impacted wisdom tooth, plaintiff attempted to avoid the bar of the statute of limitations by asserting that she did not know the extent of her injury until she was examined by a subsequent dentist approximately four years after the injury was inflicted upon her. The Appellate Division, reversing the trial court, held that lack of knowledge of the extent of the injury did not toll the running of the statute. It was stated by the Court:

I-Iere, within two or three days after the extraction, Mrs. Rankin knew the injury she sustained was caused by Dr. Sowinski. To say that she had to know or be informed that she had a cause of action before the statute would begin to run would be unreasonable. By way of analogy, the statute begins to run against a person struck by an automobile at the time he is hit. He knows he is injured and by whom and that he may have a claim for injuries against the driver of the automobile. It is not necessary for him to know that the driver was negligent in order for his cause of action to accrue. The same standard should apply here. The statute began to run against Mrs. Rankin in February or March 1964, when she knew she was injured and by whom. To accept the premise that the statute did not begin to run until she was advised by her attorney or Dr. Berlove in September 1968 that she had a cause of action for malpractice (which, incidentally, is not supported by the record) would be to disregard the basic policy of repose, which underlies the statute of limitations, thus extending the threat of litigation indefinitely.

Here, the accrual of plaintiff’s cause of action coincided with his injury on January 27, 1973. At that time he was aware that he had been injured by defendant police officers. Any claim which he wished to assert for his injuries, however slight, was required to be filed within 90 days pursuant to N. J. S. A. 59 :8-8.

Accordingly, plaintiff’s motion for leave to file a late notice against the Township of Millburn is denied. In view of the holding of the court, it is unnecessary to decide the issue of whether the township would be substantially prejudiced by permitting a late filing of claim.

Plaintiffs further contend that N. J. S. A. 59 :8 — 8, providing for time for presentation of claims, refers to claims brought only against “public entities” and not to claims brought against public employees, and, thus, their action against defendant police officers is not barred. The statute is found in chapter 8 of the New Jersey Tort Claims Act, which is entitled “Claims Against Public Entities.” In addition, N. J. S. A. 59:8-3 provides: “No action shall be brought against a public entity under this act unless the claim upon which it is based'shall have been presented in accordance with the procedure set forth in this chapter.” (Emphasis added). Moreover, no reference is made in said chapter to claims brought against public employees, nor is there any provision appearing in the entire Act providing for claims to be filed against public employees.

The term “public entity” is defined in N. J. S. A. 59: i — 3 as follows:

“Public entity” includes the State, and any county, municipality, district, public authority, public agency, and any othe.r political subdivision or public body in the State.

An examination of the California Tort Claims Act reveals that in that state a claim does not have to be filed as a prerequisite to bringing a suit against a public employee. See Gov. Code Ann. § 950, which provides:

Except as otherwise provided in this chapter, a claim need not be presented as a prerequisite to the maintenance of an action against a public employee or former employee for injury resulting from an act or omission in the scope of his employment as a public employee.

and the Law Eevision Commission Comment thereto providing :

Sections 950 to 950.8 cover all employees (officers, agents and employees) and both negligent and intentional torts.
The provisions of these sections make it unnecessary to present a claim against a public employee. The proposed sections will, however, bar an action against an employee if the action against the employing public entity is barred.

N. J. 8. A. 59:3-1 (a), dealing with the liability of public employees, provides:

Except as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person.

And, as noted in the 1972 Comment thereto:

This provision adopts existing case law in this State and throughout the country which has established the principle that public employees are liable for injury caused by their acts or omissions to the same extent as private persons unless granted immunity. See Florio v. Jersey City, 101 N. J. L. 535, 129 A. 470 (E. & A. 1925) ; Bedrock Foundations, Inc. v. Geo. H. Brewster and Son, Inc., 31 N. J. 124, 155 A. 2d 536 (1959) ; Kisielewski v. State of New Jersey, 68 N. J. Super. 258, 172 A. 2d 203 (App. Div. 1961); Czyzewski v. Schwartz, 110 N. J. Super. 255, 265 A. 2d 173 (App. Div. 1970) ; Harris v. State, 118 N. J. Super. 384 (App. Div. 1972).

It is well established that statutes are to be construed with reference to the common law, and that a statute which is claimed to impose a duty or to establish a right not recognized at common law must be strictly construed to avoid such a result. Carlo v. The Okonite-Callender Cable Co., 3 N. J. 253, 265 (1949); O’Connell v. Forest Hill Field Club, 119 N. J. Super. 317, 320-321 (Law Div. 1972).

Accordingly, the filing of a claim within the 90-day time limit set forth in N. J. S. A. 59 :8-8 is not a prerequisite to the maintenance of an action against a public employee, and this action may be maintained against the individual defendants.

An order should be submitted in accordance with the opinion of this court.


author: Caruso, J. C. C.

text:
    PIED PIPER ICE CREAM, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. ESSEX COUNTY PARK COMMISSION, A BODY POLITIC OF NEW JERSEY AND GOOD HUMOR CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 11, 1974.

      Mr. Adrian M. Unger lor plaintiff (Messrs. Unger & Unger, attorneys).

      Mr. John J. McDonough, attorney for defendant .Essex County Park Commission.

      Mr. Charles H. McAutiffe, attorney for defendant Good Humor Corporation.
   Caruso, J. C. C.

Temporarily Assigned. This matter comes before the court as a result of the filing of a complaint (in lieu of prerogative writs) by Pied Piper Ice Cream, Inc., a New Jersey corporation (plaintiff) against the Essex County Park Commission, a body politic (Park Commission) and Good Humor Corporation (Good Humor) wherein plaintiff seeks to set aside the Park Commission’s resolution of March 14, 1973 and the contract dated March 30, 1973 between the Park Commission and Good Humor as being invalid and illegal.

The contract, in substance, awards Good Humor the right to sell ice cream and refreshments throughout the Essex County Park system. Alternatively, plaintiff seeks an order directing the Park Commission to refrain from prohibiting it from selling its products within the parks, in competition with Good Humor.

In lieu of oral testimony in open court, the parties have stipulated to present the matter for decision on the submission of memoranda of law and any exhibits they deem appropriate.

The factual background appears to bo as follows:

The Park Commission made contact with some ten distributors of ice cream in Essex County in order to determine the capabilities of such distributors to provide regular and daily service in the parks, as well as supplying ice cream to revenue-producing facilities. The recreation division of the Park Commission, upon an initial evaluation, submitted to the Park Commissioners its analysis that only Good Humor Corporation and the Pied Piper Industries, Inc., were the two companies capable of providing the services mentioned above. The Park Commission, by resolution dated March 14, 1973, determined that the Good Humor would best serve the needs of the Commission and its public. As a result thereof the contract between Good Humor and the Park Commission was entered into on March 30, 1973. This determination by the Park Commission was with the full understanding that the Good Humor proposed to pay the Park Commission a sum of 12y% of the gross of all ice cream sales, and Pied Piper’s proposal to pay the Commission an amount equal to 16% of gross sales.

The thrust of plaintiff’s argument is that the Park Commission should be compelled to award contracts only on the basis of public bidding, to the highest responsible bidder. In support of its position plaintiff cites statutory provisions applicable to other park commissions and which impose limitations on municipalities and upon bidding where public funds are involved. Plaintiff, while acknowledging that the Park Commission is a body politic, pursuant to N. J. 8. A. 40:37-99, and there are no statutory provisions which authorize advertisement and competitive bidding (N. J. 8. A. 40:37-96 to 174), nonetheless maintains that the Park Commission is a governmental body and thus subject to the requirements of advertising for bids, sealed bids, and awards to the highest responsible bidder. Plaintiff contends that the trend of case law demonstrates as a matter of public policy, even in the absence of statutory provisions, requires the awarding of such a contract be based upon advertising of bids, sealed bids and public bidding.

The Park Commisson maintains it is an autonomous body with its powers derived from its enabling act (N. J. S. A. 40:37-96 to 174), and contends that the competitive bidding statutes do not apply to the Park Commission; no expenditures of public funds are involved, but rather a discretionary exercise by the Park Commission to provide its patrons of the parks with a convenience and service. The fact that the Park Commission, through its recreational director, solicited informal bids, does not limit the discretionary power of the Commission to disregard formal bidding and to make such contract as it considers most advantageous to it. The Park Commission considered and evaluated the respective informal proposals and made a determination based on the satisfactory service of Good Humor in the past, the quality and public acceptance of the products to be sold, the capacity of the company to provide ample and proper equipment to cover all service requirements as well as the ability to generate the highest level of gross income. The latter consideration being an intangible, subject to the amount of sales, and thus highly speculative. It was the Park Commisison’s judgment, after an evaluation of the above considerations, to accept the proposal of Good Humor, and thus in good faith it entered into the contract with Good Humor.

The contention of plaintiff is that there is no express statutory provision which permits the Park Commission to enter into a contract with Good Humor, and thus the contract is invalid. This argument is without convincing support. To adhere to a strict construction of the powers contained in the controlling statutes would deny the Park Commission the authority to promote the spirit of the legislation and carry it into effect. Cammarata v. Essex County Park Comm’n, 46 N. J. Super. 262, 269 (App. Div. 1957).

The terms of the legislative grant should be reasonably construed to serve, the central legislative design. N. J. S. A. 40:37-101 provides:

The commission may acquire, maintain and make available to the inhabitants of the county wherein it is appointed, and to the public parks and open spaces for public resort and recreation; may locate such public parks and places within the Imiits of the county; and for these purposes may take in fee or otherwise, by purchase, gift, devise or eminent domain, lands or any right or interest therein for public parks and open spaces within the county. Deeds of conveyance therefor shall be made to- the commission by its corporate name, and it shall preserve, care for, lay out and improve any such paries and places, and make rules for the use and government of the same. The real estate so taken, and all buildings and improvements which may be placed thereon shall be exempt from all taxes, assessments and municipal liens. [Emphasis added],

The obvious intent of the Park Commission in entering into an agreement such as the one before the court is to provide for a service and convenience for the use and enjoyment of its parks by the public. The authority exercised by the Park Commission was in furtherance of. the legislative design to provide a public service. Hill and the Camden County Park Comm’n v. Collingswood, 9 N. J. 369, 375 (1952). In determining whether a commission does possess a certain power, the authority given is to be liberally construed in the light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent. See, Cammarata v. Essex County Park Comm’n, supra.

The discretionary exercise by the Park Commission sets the ease at bar apart from those relied on by plaintiff. The trend of public policy upon which plaintiff relies concerning bidding requirements is aimed solely at those situations wherein public funds are to be expended or where the public authority in question must, by contract, engage a third party to perform a duty it is legally obligated to provide. Here, there is to be no such expenditures of public funds, nor is the service of providing refreshments one which is a legal obligation of the Park Commission. The contract here in question is the result of a discretionary endeavor by the Commission aimed at allowing its patrons greater enjoyment within the park system; the Commission has no duty to provide such a convenience, and could, if it so desired, discontinue it at will. Kurman v. Newark. 124 N. J. Super. 89 (App. Div. 1973).

The court, concludes that plaintiff has failed to establish that the Park Commission acted outside of its statutory powers, and has, as well, failed to establish sufficient reason to set aside the contract as being invalid and illegal, and thus will not disturb the contract entered into between the Park Commission and Good Humor.

Plaintiff, as indicated above, further contends that the Park Commission cannot preclude it from selling its products within the parks, in competition with Good Humor. This contention the court also finds to be without merit.

The Park Commission must have the authority to regulate and prohibit practices within the parks for the purpose of efficient management as well as the safety, welfare and enjoyment of the patrons that frequent the parks. To prohibit the Park Commission from excluding unauthorized vendors from its parks would result not only in a disruption of efficient management control of the activities in the parks, but also in a possible loss of the profits from the contract it has already entered into.

The Legislature may properly confer upon an administrative authority power to enact rules and regulations to promote the spirit of its mandate and carry it into effect. The court will not prevent the Park Commission in whatever action it deems appropriate to prevent plaintiff from violating any of its rules or regulations. N. J. 8. A. 40:37 — 101, “Establishment and locations of parks; acquisition of property; rules and regulations;” N. J. 8. A. 40 :37— 134, “Kules and regulations; notice; penalties; disposition of;” N. J. 8. A. 40:37-152, “Rules and regulations; penalties for violation;” N. J. 8. A. 40:37 — 153, “Enforcement of rules and regulations; jurisdiction,” and N. J. 8. A. 40: 37-154, “Park police; establishment; rules and regulations.”

In summation, it is the opinion of the court that plaintiff has failed to prove any of its allegations and has, in effect, failed to convince this court that defendants here have acted without authority or in excess thereof. They state no claim upon which relief can be granted, and therefore this action is dismissed and the relief prayed for is denied.


author: King, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. HOWARD C. LEONARD, JR., DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided January 15, 1974.

      Mr. John W. McFeeley III, Assistant Prosecutor, for the State {Mr. Thomas J. Shusted, Prosecutor, Camden County)

      Mr. Anthony Bezich for defendant.
   King, J. C. C.,

Temporarily Assigned. Defendant is charged with the daylight armed robbery of the proprietor of a hardware store in the vicinity of 27th and River Road in the City of Camden on February 26, 1973. The weapon used to threaten the proprietor was a crowbar. On November 13, 1973 defendant was convicted of the daylight armed robbery with a gun of the proprietor of a gas station at 25th and River Road on February 22, 1973, four days prior to the date of the crime charged in this prosecution. The prosecution offers the evidence of the first conviction to affect defendant’s credibility under N. J. S. A. 2A:81-12.

For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter or his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence. Conviction of crime may be proved by the production of the record thereof, but no conviction of an offender shall be received in evidence against him in a civil action to prove the truth of the facts upon which the conviction was based.

The defense objects, pointing out that the prior conviction is on appeal and, further, that the substantial prejudicial effect, because of the proximity of the location (two blocks apart) and time (four days apart), should motivate the court to invoke Evidence Rule 4(b) and exclude the proffer of the prior conviction.

There is no New Jersey ease dealing directly with the admissibility of a prior conviction during the pendency of the appeal. Professor McCormick in his respected work states that the “predominate view” does not bar admissibility while the appeal is pending. McCormick on Evidence, § 43 (1972). The authorities are collected at 16 A. L. R. 3rd 726. See also, 98 C. J. S. Witnesses § 507f at 414. About 13 jurisdictions appear to follow the doctrine of admissibility, including the federal cases, while Kentucky, Missouri, Texas, Virginia and the District of Columbia preclude admissibilty. Maryland, in a 1969 case decided by its intermediate appellate court, did permit admissibility, Suggs v. State, 6 Md. App. 231, 250 A. 2d 670 (Ct. Spec. App. 1969), but this result was promptly altered by legislation. See Bailey v. State, 263 Md. 424, 283 A. 2d 360 (Ct. App. 1971). The viewpoint of the minority position was expressed in an opinion by the United States Court of Appeals for the District of Columbia as follows:

But it seems to us wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later reversed, the defendant has suffered, unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction. [Campbell v. United States, 85 U. S. App. D. C. 133, 176 F. 2d 45, 47 (1949) ]

Interestingly enough, the Maryland case upholding the admission of the conviction allowed the verdict of guilty to stand even though the original conviction utilized for impeachment purposes was reversed on appeal. See Suggs v. State, supra.

There would appear to be a substantial likelihood of prejudice to defendant here if the evidence of the first conviction is admitted despite the limiting charge. However, there is not sufficient similarity between the events to invoke the criteria for admissibility under Evidence Rule 55, in order to show motive, intent, plan, knowledge, identity or absenee of mistake or accident. The question here, therefore, is whether the court has any power to exclude the proffer under Evidence Rule 4(b) :

The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

The decision of our Supreme Court in State v. Hawthorne, 49 N. J. 130 (1967) appears to provide the answer to the problem posed by this situation. In Hawthorne the trial court had entered a pretrial ruling barring the State from using several old convictions against a defendant to impeach his credibility. The State appealed and the Supreme Court ruled, iu a divided opinion, that the trial court had no discretion to limit in any fashion the State’s rights, conferred by the Legislature under the statute, to use the prior convictions on cross-examination of the criminal defendant. The defense sought to invoke the theory of Evidence Rule 4(b), urging that the prejudicial effect of the remote convictions far outweighed their probative value. The Supreme Court clearly decided against allowing a trial court to weigh the various considerations in a particular situtation in considering the question of admitting or excluding a prior conviction. The right of the State to show the conviction was found to be absolute.

In our judgment both the history of the statute and the context in which the word ‘may’ appears refute the idea that the Legislature intended to invest the courts with discretion to admit or exclude evidence of a defendant’s previous convictions of crime, [at 134-135 (1067)]
Th.ere is simply tire flat and unrestricted statement that convieiion of a crime may be shown to affect credibility, [at 135]

The majority opinion of Justice Francis and the concurring opinion of Chief Justice Weiutraub in Hawthorne constitute a compelling mandate that the Legislature most probably intended to preclude the engraftment of judicial exceptions upon the statute and that any amelioration of the statute would he a legislative task.

Under all the circumstances we hold the view that previous conviction of crime of a witness, whatever its age, may be shown to affect credibility. That we deem to be the legislative will, and if we overstate it, we assume the matter will be given appropriate consideration by the Legislature, [at 140-141, majority opinion]

The State will therefore be permitted to show this defendant’s prior conviction despite the pendency of his appeal therefrom. The court is of the opinion that anj'' exception to the statute should be wrought by legislative rather than judicial action, as occurred in the Maryland experience, in light of the strong policy expressed by the statute and the judicial recognition rendered to this policy under State v. Haiothorne, supra. The court will permit the State to show that fact of a conviction of armed robbery and the date of the conviction, but will not permit the State to go into the details of the crime, i. e., time, place and method of criminal activity. This limiting ruling should assist in obviating any unwarranted prejudicial effect of the prior conviction. See State v. Kobylarz, 44 N. J. Super. 250 (App. Div. 1957); State v. Mount, 73 N. J. L. 582 (E. & A. 1906).


author: Per Curiam. Kolovsky, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN A. DALY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 30, 1973
    Decided April 10, 1973.

      Before Judges Kolovsky, Matthews and Ard.

      Mr. Edward L. Keefe, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondent {Mr. John De Gicco, Deputy Attorney General, of counsel).
   Per Curiam.

Defendant was charged with operating a motor vehicle while under the influence of alcohol, contrary to the provisions of N. J. S. A. 39 :4r-50 (a). He was tried in the Municipal Court and found guilty. An appeal was taken to the Monmouth County Court and after trial de novo defendant was again found guilty. He was fined $300 and his driving privileges were suspended for two years.

Defendant was arrested at 3 :30 a.m. while in his car which was parked in the parking lot of an Englishtown tavern. Defendant admitted at the time of arrest that he was under the influence of alcohol and so stipulated at both trials below. Defendant further admitted that the key was in the ignition and the motor running at the time of arrest.

The arresting officer testified that at about 3 :30 a.m. he and his partner observed a vehicle in the parking lot of the Brookside Tavern in Englishtown. The motor was running and it appeared that someone was in the vehicle. The headlights of the vehicle were off. The police car headlights were directed onto the parked car and the officer approached the vehicle and rapped on the window of the driver’s side. The defendant “looked up” at the officer as he shined a light into the car. The driver’s seat was slightly reclined although in the officer’s opinion the car could be driven with the seat in that position. Defendant said he was keeping warm and was going to drive home in a little while. The officer observed defendant’s intoxicated condition and told him he would “have to stay here; you can’t drive your vehicle.” The officer stated that defendant then said, “you’re full of shit. I will drive my car when I feel like it.” Defendant was arrested and refused to take a breath test explaining that he knew he was drunk and did not need a test to tell him so.

At the time of arrest the officer did not notice if the car was in gear, if the hand brake was on or if defendant had his feet on the pedals. He stated that the temperature was near freezing and defendant was wearing an army field jacket. The bars in Englishtown close at 2 a.m.

Defendant testified that he had driven from upstate New York to visit his sister in Englishtown. Upon arrival in Englishtown around 7 :30 or 8 p.m., he stopped at the tavern. He attempted to call his sister a couple of times but got no answer. A movie on television got his attention and he remained in the tavern drinking and watching television until sometime between 12 :00 and 12 :30 a.m. Upon leaving the tavern he stated he realized he had “a bit too much to drive,” and he made up his mind to sleep it off in his car. Upon entering the car he turned on the motor to run the heater for warmth and “dropped the seat back a bit to sleep.” (The car w~as a foreign built sports model.) The seat was reclined to about 120 degrees. He slept on and off until awakened by the trooper, waking occasionally to run the motor for warmth.

He said he was awakened by a light laid against the window of the car on the driver’s side and somebody rapping on the glass. He opened the window, saw a police officer, and was asked for his license and registration. He claims the officer said to his partner “this man is driving under the influence” to which he says he responded, “Ho, I’m not driving.” He was then asked why the motor was running and said to “keep myself warm.” The officer said that showed intent to drive and defendant responded “* * * that’s a lot of bullshit. I have no intention of driving this car.” He was then arrested.

Defendant also testified that he had not left the car in the lot because he had valuable belongings in the trunk of his ear and that the lock on the trunk was broken. He also said that he had not remained in the tavern because he had not intended to buy any more drinks.

The County Court Judge found defendant guilty as charged; his conclusions, in their entirety, were:

There is no doubt in my mind, [the] most reasonable inference [to be drawn], especially because of the [interest of the] defendant in the outcome of this litigation, that he was behind the wheel and he intended to drive. He was not going to leave that car there all night with all the thousand dollars worth of valuable goods in it. That’s the reason he didn’t call a taxicab, [he was] just going to see if he felt well enough to pull out of there when he could and he certainly would not sleep there all night long, I’m quite sure.
If you have had any experience in drinking intoxicating beverages you also find that the calls of nature come on rather suddenly. He wasn’t going to go out there and defecate out in the public place, I’m quite sure.
Mr. Keefe, I have concluded Mr. Daly is guilty as charged, that 1 e was violative of the Motor Vehicle Act, more particularly 39:4^50 (a), whatever it is.

We find that these observations do not support the conclusion of guilt and reverse.

While we agree with our dissenting brother that this court “should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the cfeeP of the case, which a reviewing court cannot enjoy,” State v. Johnson, 42 N. J. 146, 161 (1964), we do not understand Johnson as ’dictating an abolition of the process of record review by this court — especially when the trial judge himself gives no indication on the record as to his “feel” of the cause or his assay of the demeanor of any witness. The result we reach springs from the sense of “wrongness” which comes in our minds as we review the record which in turn arises from our conviction that the trial judge erroneously evaluated the proofs as a whole. Johnson, above, 42 N. J., at 162.

The sole issue on this appeal is whether the record supports the conclusion that the defendant who was concededly intoxicated intended to operate his motor vehicle on the date in question contrary to the provisions of N. J. S. A. 39:4-50(a). See State v. Sweeney, 77 N. J. Super. 512 (App. Div. 1962), aff’d 40 N. J. 359 (1963).

In Sweeney, defendant was convicted of violating the statute under circumstances somewhat similar to those presented here. Sweeney was found by the Paterson police at 1 a.m. sitting in his ear, which was parked at the curb on a city street, behind the wheel with the motor running. lie was extremely intoxicated. At the trial his counsel stipulated that he had entered his ear and started the motor. Sweeney did not testify at any time. In upholding the conviction which had been affirmed by this court, the Supreme Court stated:

We read the opinion of the Appellate Division, * * * to hold that a person “operates” — or for that matter, “drives” — a motor vehicle under the influence of intoxicating liquor, within the meaning of At. J. S. A. 39 :4 — 50 and 39 :4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver’s seat behind the steering wheel, with the intent to move the vehicle, and that in this case the trial court could clearly infer such intent from the evidence. We thoroughly agree and therefore affirm the judgment of conviction. (Emphasis added) [40 N. J., at 360, 361].

We do not read Sweeney as precluding the rebuttal of the inference mentioned by facts which indicate a contrary intent. As noted, no evidence was adduced on behalf of Sweeney, and the only logical inference to be drawn from the facts adduced was that Sweeney intended to operate his motor vehicle at the time he was apprehended.

In prosecutions for violation of N. J. S. A. 39 :4-50, the State has the burden of proving the offense beyond a reasonable doubt. State v. Johnson, 42 N. J. 146, 156 (1964); State v. Emery, 27 N. J. 348, 353 (1958).

As we have indicated, the arresting officer admitted that at the time of arrest the headlights of defendant’s vehicle were off, the driver’s seat was, at least to some extent, reclined, and that defendant had stated to him that the engine was running so that he could keep warm. It is also undisputed that the temperature at the time was near freezing.

The officer quoted defendant as saying at one point that he was going to drive home “in a little while” and that he later said, “I will drive my car when I feel like it.” Interestingly, the officer added to this last quoted answer his volunteered observation, “this was showing the intent at that time he was going to drive his vehicle.”

Defendant’s presence in and stated time of departure from the tavern to his car were unrefuted and, indeed, unchallenged. Even if we assume he did not leave until the 2 a.m. closing time, he would still have been in the car for one hour and twenty minutes before the police arrived. Defendant in his testimony denied that he stated to the officer that he intended to drive his vehicle in a little while, and that he actually said, “I have no intention of driving this car.”

The only area for dispute between the facts adduced by the State and those adduced by defendant was the content of the conversation had between the arresting officer and defendant at the scene. Accepting the police version of the disputed testimony as correct, (We note no real problem of credibility, and indeed the trial judge made no determination as to credibility except for a laconic reference to interest in the outcome of the litigation.) we regard defendant’s statements as related by the trooper to have been equivocal and insufficient for the trier of the fact to conclude that defendant intended to move his car prior to regaining sobriety. Even the arresting officer conceded that it was his opinion that the defendant had no present intention to operate the vehicle at the time he was apprehended.

We find the record devoid of sufficient credible evidence to sustain the conviction beyond a reasonable doubt. State v. Johnson, above; compare State v. Fearon, 110 N. J. Super. 131 (App. Div. 1969), reversed on dissenting opinion, 56 N. J. 61 (1970).

The judgment oí conviction is reversed.

Kolovsky, P. J. A. D.

(dissenting). I am satisfied from my study of the record that the findings made in the County Court by Judge Conklin “could reasonably have been reached on sufficient credible evidence present in the record * * * [considering] the proofs as a whole * * * [so that we] should not disturb the result, even * * * [if we had] the feeling [that we] might‘ have reached a different conclusion were [we] the trial tribunal.” State v. Johnson, 42 N. J. 146, 162 (1964).

Moreover, I do not have “the feeling [that I] might have reached a different conclusion were [I] the trial tribunal”; rather, 3 would have reached the same conclusion.

The situation here presented is that dealt with in State v. Sweeney, 40 N. J. 359, at 360-361 (1963) in which the court ruled at:

a person “operates” — or for that matter, “drives” a motor vehicle under the influence of intoxicating liquor, within the meaning of N. J. S. A. 39:4-50 and 39:4r-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver’s seat behind the steering wheel, with the intent to move the vehicle * *

Here defendant was found at 3 :20 A.st. sitting behind the steering wheel of his Peugot automobile, with its motor running, in the parking lot of a tavern. That defendant was intoxicated is conceded. That concession precluded the development at the trial of the full extent of defendant’s inebriation. However, that he was indeed very drunk is clear from the State trooper’s testimony that it “took [defendant] three minutes to get his license out of a zippered pocket in his coal,” that when defendant got out of the automobile he “was leaning against Ms vehicle for balance,” and that there was a strong odor of alcohol on defendant’s breath.

The only controverted issue at the trial on defendant’s appeal from his municipal court conviction for drunken driving — a plenary trial before Judge Conklin rather than a trial on the record made in the municipal court, cf. B. 3 :23-8 — was whether defendant had the “intent to move the vehicle.”

Judge Conklin found that defendant had such intent, “that he intended to drive.” That finding is fully supported by the record unless, indeed, full credence is given to defendant’s testimony that he had no siteh intent, that he left the tavern at 12 or 12:30 p.m. and had sat and slept in the car since then, turning on the motor from time to time only to keep warm.

Resolution of the issue of credibility as between defendant and the State troopers was however for Judge Conklin as the trier of the facts. There is no justification, on the record here, for an appellate court to overrule his determination with respect to the credibility of the witnesses. An appellate court “should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the Teel’ of the case, which a reviewing court cannot enjoy.” State v. Johnson, supra, 42 N. J. at 161.

The trial court chose, as it had the right to do, to credit the testimony of the trooper who arrested defendant. Once it did so, the inference that defendant intended to move the automobile was at least permissible, if not mandated, by the circumstances of the ease and defendant’s conduct, including his statements to the trooper embodied in the following quotation from the trooper’s testimony:

[Defendant] told me that he was sitting in this car, keeping warm and he was going to drive home in a little while. I had him step out of the vehicle at this point * * *.
I said to him, sir, due to your sobriety condition you will have to stay here; you can’t drive your vehicle.
Q. All right. What did the defendant say?
A. His exact words are, “You’re full of shit. I will drive my car when I feel like it.”

I would affirm the judgment of conviction.