text:
    MARIA PERAGLIA, PLAINTIFF-RESPONDENT, v. ROBERT C. JONES, JR., DEFENDANT-APPELLANT, AND LUCY POLLOTTA AND MARIE J. BENZING, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Submitted September 11, 1972
    Decided September 25, 1972.

      Before Judges Gaulkin, Lora and Alloorn.

      Messrs. Zuclcer, Lowenstein, Gurny and Zuclcer, attorneys for Robert C. Jones, Jr. and Unsatisfied Claim and Judgment Fund {Mr. Milton Gurny, on the brief).

      Messrs. Moser, Boveio and McGough, attorneys for Lucy Pollotta and Aetna Casualty & Surety Company {Mr. George P. Moser, Jr., on the brief).
   Per Curiam.

Maria Peraglia sued for personal injuries sustained while a passenger in an automobile owned and operated by Lucy Pollotta when it collided with two other automobiles. Robert C. Jones, Jr., operator of one of the other vehicles, was an uninsured motorist at the time of the accident and is here represented by counsel supplied by the Unsatisfied Claim and Judgment Fund. It was agreed by all parties that a judgment would be entered in favor of plaintiff Peraglia against defendant Jones in the sum of $10,000 and in favor of all other defendants after the trial of the insurance coverage issue.

On the date of the accident (December 6, 1969) Lucy Pollotta was covered by an automobile liability insurance policy, issued by Aetna Casualty & Surety Company, which did not contain uninsured motorists’ coverage. Such coverage was not specifically offered to the insured with the policy.

The policy was prepared by Aetna on January 31, 1969, was mailed to a local agent in the beginning of February 1969, and was then mailed to Lucy Pollotta before April 2, 1969 and approximately four to six weeks prior to the effective date of the policy, which was April 16, 1969.

. Ms. Pollotta paid an initial payment of $20 toward the total premium of $84 on April 8th, six days after the effective date of N. J. S. A. 17:28-l.l and 1.2 (approved January 2, 1969, effective April 2, 1969) which required insurance companies to offer uninsured motorists’ coverage before delivering or issuing for delivery an automobile liability policy in' New Jersey, and to obtain a written election from the named insured either rejecting or accepting such offer.

The issue as to whether or not the policy should have contained uninsured motorists’ coverage or at least whether such coverage should have been offered to the insured with the policy was tried as a declaratory judgment action and the trial judge ruled the policy be deemed not to include uninsured motorists’ coverage.

The Unsatisfied Claim and Judgment Fund, on behalf of the defendant Jones, argues that N. J. S. A. 17:28-1.1 is a remedial statute which should be liberally construed to achieve the purpose for which it was enacted, and that this court should hold that any policy issued or delivered after January 2, 1969 to be effective after April 2, 1969 required insurance carriers to offer uninsured motorists’ coverage.

Aetna contends the statute applies only to policies “delivered or issued for delivery” after April 2, 1969, the effective date of the act.

The trial judge concluded the amendments “not only literally bespeak futurity, but also fail to reveal any underlying intentions of retroactivity” and should be accorded prospective effect only. We agree with this general proposition. But, under the facts of this case, there is no retroactivity in affording Lucy Pollotta uninsured motorists’ coverage. Her policy was a renewal of a prior policy to be effective April 16, 1969. The statute was approved January 2, 1969, effective after April 2, 1969. Cf. Hannan v. Employers Commercial Union Ins. Co., 117 N. J. Super. 485 (Law Div. 1971).

We conclude that N. J. S. A. 17:28-1.1 imposed upon all insurers the obligation of offering uninsured motorists’ coverage where a policy was issued or delivered after January 2, 1969 to be effective after April 2, 1969. Accordingly, the policy issued by Aetna is deemed amended to include such coverage, subject, of course, to the payment of the additional premium for the extended coverage.

Reversed and remanded for entry of judgment in accordance with this opinion.


source: Caselaw Access Project

author: Walsh, J. D. C.

license: Public Domain

text:
    ISABEL S. YASNER, PLAINTIFF, v. COMMERCIAL MORTGAGE COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Essex County District Court
    Decided September 14, 1972.

      Mr. Laurence Semel, for plaintiff.

      Mr. Melville J- Berlow, for defendant.
   Walsh, J. D. C.

Plaintiff seeks a recovery in the amount of $1,750 from defendant mortgage company on a claim that “points” paid by the seller of property amount to nothing more than a usurious exaction by defendant in violation of the statute.

The parties have stipulated to the following state of facts: On December 16, 1969 defendant issued a commitment to Mrs. Amy Moses to grant a mortgage loan on premises at 519 Avon Avenue, Irvington, New Jersey, in the sum of $17,500. The commitment was for the making of a mortgage loan eligible for insurance by the Federal Housing Administrator. The commitment contained a provision to the effect that it was subject to plaintiff’s (seller) agreement to pay a placement fee in the sum of $1,750 to defendant.

On February 4, 1970 the $17,500 mortgage was granted to the said Mrs. Moses, and plaintiff paid defendant the $1,750 placement fee no part of which was charged directly or indirectly to Mrs. Moses. The loan was insured by the Federal Housing Administrator.

Plaintiff owned the premises in question and had entered into a contract of sale for the property with Mrs. Moses. Thereafter, as per the stipulation, the mortgage commitment issued from the defendant company to Mrs. Moses, clause 8, providing that

This commitment is subject to Sellers acceptance of a placement fee in the sum of $1750.00 to be paid by them to us at closing.

It is about this clause, and the payment thereunder, that plaintiff complains. She claims that the payment made and the amount collected by defendant was beyond the original 7yí% agreed to by the borrower, and the payment made by plaintiff and received by defendant is usurious in violation of N. J. S. A. 31:1-1, as amended, which reads in pertinent part:

(a) Except as otherwise provided by- law, no person shall * * * take, directly or indirectly, for loan of any money, * * * above the value of six dollars ($6.00) for the forbearance of one hundred dollars ($100.00) for a year *’ * *.

. In other sections of the statute there is an allowable 8%' interest' permitted by the Commissioner of Banking and the Advisory Board.

A prohibition against usurious exactions did not exist at common law. The existing statutory prohibition by its very nature exists solely within the framework of the statutory provision regarding it. See In re Greenberg, 21 N. J. 213 (1956).

Defendant answers that there is no loan from it to plaintiff and therefore there is no exaction of usurious 'interest from her. This theory presupposes that any monies the lender receives by way of return must of necessity come 'from the borrower himself. This court flatly rejects that construction; it matters not from whence the lender accepts his return.

There is a paucity of law on the question as presented, and a diligent search by both counsel and the court has unearthed little by the way of prior judicial enlightenment.

However, it is abundantly clear that the statutory interpretation of N. J. S. A. 31:1—1 allows of no other conclusion than that the prohibition contained therein is directed solely against the leader and the amount of money that he receives in return for his loan. There is no requirement contained therein that the payment of money, in order to constitute a usurious payment, must be made by the borrower. Nor are there any cases cited by counsel that would indicate that this is the construction to be placed upon the statute, in fact, the courts of New Jersey have held that an individual may recover usurious payments on loans made in a maimer disguised to hide the fact that the lender had, in effect, exacted an illegal rate of interest, See Gelber v. Kugel’s Tavern, Inc., 10 N. J. 191 (1952), and In re Greenberg, supra. This court finds as a fact that the loan agreement which compelled the payment of $1,750 by a third party was in effect no more than a usurious exaction on the part of the lender in order to permit it to circumvent the prohibition against such a transaction contained in N. J. S. A. 31:1—1.

The second defense raised by defendant is that, conceding the transaction to be usurious, the statutes of New Jersey deny recovery. N. J. S. A. 17:2-5 reads in part as follows:

* * * mortgage companies * * * organized under any * * * law of this state which are approved by the federal housing administrator as eligible for credit insurance, are authorized to make loans and advances of credit and purchase obligations representing loans and advances of credit as are eligible for insurance by the federal housing administrator and to obtain such insurance.

N. J. S. A. 17:2-7 provides in part as follows:

No law of this state prescribing or limiting interest rates * * * shall be deemed to apply to * * * obligations representing loans and advances of credit made * * * pursuant to section 17:2-5 of this title.

It has long been the law of this State that statutory language should be given its ordinary meaning in the abscenee of a specific intent to the contrary. See Abbotts Dairies, Inc. v. Armstrong, 14 N. J. 319, 1954. This court con-eludes that the statute means just what it says and has the same effect and limitation on N. J. S. A. 31:1-1 as N. J. S. A. 31:1—6 has on the chapter itself.

In the case of Lord v. Marine Midland Trust Co., 61 Misc. 2d 776, 306 N. Y. S. 2d 82 (1969), the Supreme Court of New York held as follows:

In the course of processing the prospective Purchasers’ application for an F.H.A. Mortgage the defendant Bank advised the applicants and the broker advised the Seller that at that time six points, or a discount of 6% of the mortgage principal, would have to be assessed by the Bank if it were to make this mortgage loan. The contract parties were advised that only one point could be imposed upon the Purchasers and the remaining five points necessarily had to be paid by the Seller if the transaction were to be completed (See, F.H.A. Administrative Rules for Section 203, Ch. XIII, §§ 1301, 1302, 1303; F.H.A. Mortgagee Handbook.)
(1) The issue presented by plaintiff’s third cause of action is whether the point charge here nevertheless is violative of New York’s usury statutes. The answer is no since the State’s usury statutes expressly do not apply to F.H.A. mortgage and realty transactions.
In order to implement and complement the purposes and operation of the National Housing Act, many states, including New York, have passed legislation exempting transactions under the Housing Act from state laws governing banking and interest rates. In New York, section 5-501(5), General Obligations Law, specifically states,
“5. No law regulating the maximum rate of interest which may be changed, taken or received shall apply to any loan or forbearance insured by the federal housing commissioner or for which a commitment to insure has been made by the federal housing commissioner * *
The above sub-section was in full force and effect at all times herein pertinent. Usury does not exist in the frame-work of the facts in this case.

In view of the above, this court reaches the conclusion that the usury statutes of the State of New Jersey, N. J. S. A. 31:1—1 expressly, do not apply to F.H.A. mortgages and realty transactions by virtue of N. J. S. A. 17:2-7, and recovery of the amount claimed, be it usurious or not, cannot be had by plaintiff.

Accordingly, judgment will be entered in favor of defendant and against plaintiff, dismissing the complaint.


author: Per Curiam.

text:
    PAULETTE MULLER, PLAINTIFF-APPELLANT, v. BILLY WISE, DEFENDANT AND THIRD PARTY PLAINTIFF, MARINAT REAL ESTATE AND INSURANCE COMPANY, DEFENDANT AND THIRD PARTY PLAINTIFF-RESPONDENT, v. GINETTE CROWTHER, THIRD PARTY DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued September 19, 1972
    Decided September 28, 1972.

      Before Judges Collester, Leonard and Halpern.

      Mr. John ,M. Walsh argued the cause for appellant (Messrs. Schumann, Session, Kennelly & Dorment, attorneys).

      Mr. C. Eugene Godleshy argued the cause for respondent Marinat Real Estate and Insurance Company (Messrs. Schmidt & Godleshy, attorneys).
   Per Curiam.

Following a trial without jury, plaintiff appeals from a judgment of no cause of action entered by the trial court against her and in favor of defendant Marinat Real Estate and Insurance Company.

In this appeal we are concerned solely with plaintiff’s claim for damages to her home and furnishings caused by water which came from pipes that had frozen and then thawed. We hold that the trial court misconceived the duty owed by Marinat to plaintiff.

§ 381 of the Restatement, Agency 2d states:

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.

The Comment to this section reads:

a. When duty is inferred. An agent may have a duty to act upon, or to communicate to his principal or to another agent, information which he has received, although not specifically instructed to do so.
The duty exists if he has notice of facts which, in view of his relations with the principal, he should know may affect the desires of his principal as to his own conduct or the conduct of the principal or of another agent. * * * In cases of this sort, the duty of the agent is inferred from his position, just as an authority is inferred. * * *

Further, upon the record, we find that Marinat breached this duty when its representative, Mary Tsitsiragos, failed to advise plaintiff of the existing circumstances as to the tenant Wise — that the tenant was unhappy and wanted to leave, that rent had not been paid for three months and that the house had been re-advertised and shown to others by Marinat.

However, the trial court in view of its determination that Marinat breached no duty owing by it to plaintiff, never considered whether that breach of duty was the proximate cause of the damages to the premises and contents. An affirmative finding on this issue is necessary to plaintiff’s recovery. Accordingly, the judgment entered by the trial court is reversed and the matter remanded for a hearing on the issue of proximate cause. In the event that issue is resolved in favor of plaintiff, then the matter of damages shall be tried and determined.

Reversed and remanded in accordance herewith. We do not retain jurisdiction.


author: Halpern, J. A. D.

text:
    AGNES MAGNER, PLAINTIFF-APPELLANT, v. BETH ISRAEL HOSPITAL AND GEORGE C. PECK, DEFENDANTS-APPELLEES.
    Superior Court of New Jersey-Appellate Division
    Argued September 19, 1972
    Decided October 4, 1972.

      Before Judges Collester, Leonard and Halpebst.

      Mr. Thomas J. Osborne, Jr. argued the cause for appellant (Messrs. Vaccaro and Osborne, attorneys).

      Mr. Gerald E. Monaghan argued the cause for respondent George O. Peck (Messrs. Breslin and Monaghan, attorneys).

      Mr. Edward E. Kuebler filed a brief and appeared for respondent Beth Israel Hospital.
   The opinion of the court was delivered by

Halpern, J. A. D.

This is a medical malpractice suit by plaintiff against defendants Peck, a plastic surgeon, and Beth Israel Hospital. At the close of plaintiff’s proofs the trial judge dismissed all claims against Beth Israel Hospital. At oral argument plaintiff and Peek stipulated that the appeal as to the hospital be dismissed with prejudice. The present appeal by plaintiff, for all practical purposes, is from the judgment entered on the jury’s verdict of no cause for action in Peck’s favor, based on the grounds that the trial court erred in denying her motions for a directed verdict,, for judgment n.o.v. or, in the alternative, a new trial.

A distillation of the undisputed facts, as testified to by Peck, indicates that plaintiff was admitted to the Beth Israel Hospital as Peck’s patient for three operative procedures by him: (a) to excise and suture a scar on her forehead; (b) debride scars on her cheek, and (c) to remove a mole or lesion on her neck with a Bovie Electric Cautery which emits a spark when a foot pedal is activated by the surgeon. After plaintiff was anesthetized Peek personally prepped her for the operation by wiping down or painting the areas involved with gauze soaked in pure alcohol and draping them with sterile towels. He first excised and sutured the sear on her forehead, which took about 10 to 15 minutes. He then debrided the scars on her cheek, which took about 10 minutes. Finally, as he turned on the electric current to utilize the cautery and neared the neck area with it to commence removing the lesion, “* * * a spark emitted from the needle to the skin and there was a flash over the entire area causing a burn of this area.” It was to recover for the resulting injuries that this suit was commenced.

Peck further testified it was the alcohol that started the fire, and although he knew alcohol was inflammable he had used it as a prep in over 3,000 operations without any untoward result. It was his opinion, corroborated by his medical expert, Dr. Frederick Coester, that it was standard operating procedure to use alcohol as a prepping agent if you wait at least ten minutes for its fumes to evaporate. Having waited beyond the prescribed time, he could not explain the flash fire which resulted. He acknowledged the existence of other nonflammable preps, and frankly admitted that ever since plaintiff’s injury he has not used alcohol as a prep.

Plaintiff’s medical expert, Dr. Marvin A. Stevens, testified that Peck’s use of alcohol as a prep was a deviation from approved medical standards. He was of the opinion that the humidity in the operating room, or the towels draped over the operative area, could have affected the rate of the alcohol’s evaporation. In any event, it was Peck’s obligation to be sure the operative area was safe and dry before proceeding. While Dr. Coester testified that Peck’s use of an alcohol prep was not a deviation from approved medical standards if ten minutes were allowed to elapse after application, he normally used non-alcoholic preps. He agreed with Dr. Stevens that it was Peck’s responsibility to be sure the operative area was dry, and that the time it takes for alcohol to evaporate varies according to existing conditions.

Tn light of these facts the trial judge charged the jury, based on the doctrine of res ipsa loquitur, that they could infer Peck to have been negligent, although not required to do so, if they determined that (1) the incident here involved ordinarily does not occur in the absence of negligence; (2) it was caused by an instrumentality within the exclusive control of Peck, and (3) it was not due to any voluntary act or neglect on plaintiff’s part. This instruction was in line with reported New Jersey medical malpractice cases. See Sanzari v. Rosenfeld, 34 N. J. 128 (1961); Terhune v. Margaret Hague Maternity Hospital, 63 N. J. Super. 106 (App. Div. 1960); Becker v. Eisenstodt, 60 N. J. Super. 240 (App. Div. 1960); Toy v. Rickert, 53 N. J. Super. 27 (App. Div. 1958); Steinke v. Bell, 32 N. J. Super. 67 (App. Div. 1954) ; Gould v. Winokur, 98 N. J. Super. 554 (Law Div. 1968), aff’d 104 N. J. Super. 329 (App. Div. 1969). As indicated, the doctrine permits an inference of negligence, but does not mandate it even though, as here, Peck was unable to explain the cause of the accident. The doctrine, when applicable, is used to avoid a dismissal at the close of a plaintiff’s proofs. Sanzari, supra, at 141.

We find it difficult, if not inadvisable, to instruct juries in terms of legal doctrines such as res ipsa — this is especially true in medical malpractice cases where the facts differ so widely from other types of negligence or products liability cases, and expert medical testimony is normally required. Instructing juries as to permitted inferences, presumptions, prima facie cases, burden of proof, shifting of burden of proof, as is often done in non-medical malpractice cases, even though the same principles may be applicable, rarely is helpful to a jury in a medical malpractice case — particularly where no explanation for the accident is given. See, for example, Prosser, Law of Torts (4th ed.) at 231-235; 1 Louisell and Williams, Medical Malpractice, § 1503; Kahalili v. Rosecliff Really, Inc., 26 N. J. 595, 604-608 (1958), and Vespe v. Di Marco, 43 N. J. 430 (1964). This difficulty was recognized by the court when confronted with a ease involving an allowable inference of negligence. In Rose v. Port of New York Authority, 61 N. J. 129 (1972), Justice Mountain pointed out:

Traditionally an allowable inference of negligence on the part of a defendant is justified if (a) the occurrence itself ordinarily bespeaks negligence, (b) the instrumentality was within defendant’s exclusive control, and (c) there is no indication that the injury is attributable to plaintiff’s voluntary act or neglect. Kahalili v. Rosecliff Realty, Inc., 26 N. J. 595, 605-607 (1958); Bornstein v. Metropolitan Bottling Co., 26 N. J. 263, 269-273 (1958). Whether we refer to this as the rule of res ipsa loquitur or simply say that the circumstances are such as to give rise to an inference that defendant was negligent, is perhaps no great matter. Here the occurrence bespeaks negligence, [at 136]

We have carefully reviewed this record in the light of Dolson v. Anastasia, 55 N. J. 2 (1969), and Franklin Discount Co. v. Ford, 27 N. J. 473 (1958), and are satisfied there has been a miscarriage of justice under the law requiring a new trial. The inescapable facts are that plaintiff suffered injuries while unconscious during surgery from an occurrence which by itself bespeaks negligence. Peck was in exclusive control of her body and the instruments which had the potentiality of causing injury if not properly used. The greater portions of her body that suffered injury wore not involved in the surgery and were healthy prior thereto. These uncontroverted facts, standing alone, not only make the res ipsa doctrine applicable, but enable a jury to conclude from common experience that plaintiff would not have been injured if proper care and skill had been used. See State v. Weiner, 41 N. J. 21, 25 (1963) and Terhune, supra, 63 N. J. Super, at 111. Under the existing circumstances Peck had the burden of coming forward with evidence to explain what happened. This he failed to do. The gist of his testimony on this subject is best illustrated by the following question and answer given by him on cross-examination

Q. Well, what do you attribute this lire to?
A. I have absolutely no idea.

Being mindful of the opinions of our Supreme Court that under the existing circumstances, even though Peck offered no explanation for the accident, a jury question is presented, we can do no more than require a new trial where we conclude a manifest injustice has resulted. We think it appropriate, however, to point out that other jurisdictions and legal authorities have gone further. They have concluded that in medical malpractice cases, under circumstances analogous to the facts in this case, the trial court should direct a verdict on liability in plaintiff’s favor because the inference of negligence is so clear and strong that fair and reasonable minded men could not fail to accept it. It is only when a surgeon’s explanation raises fact questions, over which reasonable men can be expected to differ, that the issue of fault should be left for the jury’s determination. See Clark v. Gibbons, 66 Cal. 2d 399, 426 P. 2d 525, 58 Cal. Rptr. 125 (Cal. Sup. Ct. 1967); Dierman v. Providence Hospital, 31 Cal. 2d 290, 188 P. 2d 12, 13 (Cal. Sup. Ct. 1948); Weeks v. Latter-Day Saints Hospital, 418 F. 2d 1035, 1039 (10 Cir. 1969); Prosser, Law of Torts (4th ed.) at 228-235, and 1 Louisell and Williams, Medical Malpractice, §§ 15.02 to 15.08, at 465-484, and cases cited therein.

Since a new trial is required, we deem it advisable to indicate that there is no merit to plaintiff’s contention that the trial court erred in dismissing the counts in her complaint charging breach of warranty and strict liability. These doctrines may be applicable in commercial transactions but not to the medical or dental professions. See Newmark v. Gimbel’s, Inc., 54 N. J. 585 (1969); Magrine v. Krasnica, 94 N. J. Super. 228 (Law Div. 1967), aff’d sub nom. Magrine v. Spector, 100 N. J. Super. 223 (App. Div. 1968), aff’d 53 N. J. 259 (1969).

Reversed and remanded for a new trial.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ORLANDO CALCAGNO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 25, 1972
    Decided October 4, 1972.

      Before Judges Collestek, Leonard and Halpebn.

      Mr. John P. Bussell, attorney for appellant.

      Mr. Geoffrey Gaullcin, Hudson County Prosecutor, attorney for respondent (Mr. John J. Hughes, Assistant Prosecutor, on the brief).
   Per Curiam.

After a jury trial defendant was convicted of the unlawful possession of lottery paraphernalia (N. J. S. A. 2A :121-3 (b)). He seeks a reversal of his conviction upon the grounds that (a) “Miranda warnings should hatre been given to [him] prior to interrogation,” and (b) “The evidence seized were the fruits of an illegal search and therefore inadmissable.” These contentions lack merit.

Defendant was working at the plant of his employer, Western Electric Company, when he was questioned and searched by two special investigators who were also employed by Western Electric. At their request ho voluntarily opened his workbench drawer where lottery paraphernalia was found. In addition, he gave them other gambling paraphernalia which he had on his person.

The interrogation by the investigators was not “custodial interrogation” by police or government agents which is proscribed by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), unless appropriate warnings are first given. State v. Kelly, 61 N. J. 283 (1972); see generally, Annotation, “Custodial Interrogation-Miranda Rule,” 31 A. L. R. 3d 565 (1970).

So, too, the search by the investigators was not proscribed by the Fourth Amendment to the United States Constitution and Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The cloak of protection furnished by the Fourth Amendment is directed against official arrogance and insolence in office by public agents. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Kelly, supra; State v. De Simone, 60 N. J. 319 (1972); Annotation, “Private Search-Evidence,” 36 A. L. R. 3d 553 (1971).

Affirmed.


text:
    GOLDA ZOFFER, PLAINTIFF-RESPONDENT, v. NANCY CRANE AND UNITED STATES FIRE INSURANCE COMPANY, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 26, 1972
    Decided October 4, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Martin Bloom argued the cause for appellants.

      Mr. Isaac C. Ginsburg argued the cause for respondent {Messrs. Feinberg & Ginsburg, attorneys).
   Per Curiam.

Defendants appeal from an order granting plaintiff summary judgment in the amount of $1,000.

We affirm. The record fully supports the trial court’s determination that the undisputed facts appearing in the affidavits submitted established that the representative of defendant insurance company had offered to settle plaintiff’s negligence action for $1,000 and that there had been a timely acceptance of that offer.

Defendants do not argue that more than a reasonable time had elapsed between the date of the offer, Mlarch 26, 1970, and the acceptance on August 5, 1970 so that the acceptance came too late. Their reliance is on the contention that by force of the two-year statute of limitations, once more than two years had elapsed since the accident, which had occurred on June 4, 1968, there no longer was any consideration for their promise to settle and that therefore the promise was unenforceable. The contention is set forth as follows in defendants’ brief:

It is the contention of this defendant that a consideration for an offer made by the insurance carrier was the potential liability of the claim against its assured. When the Statute of Limitations had expired there no longer was any consideration for such offer, and therefore plaintiff was not in the position to accept the same.

The contention lacks merit. It ignores the uncontradicted statement in the affidavit submitted on plaintiff’s behalf that the insurance company’s representative “held out to me that the offer could be accepted at any time.” Further, it is bottomed on an assumption, contrary to settled law, that expiration of the applicable period of the statute of limitations extinguished plaintiff’s substantive rights arising by reason of the injuries sustained by her in the automobile accident, rather than operating merely on the remedy. Cf. Duttkin v. Zalenski, 140 N. J. Eq. 200, 205 (Ch. 1947); 51 Am. Jur. 2d, Limitation of Actions, § 22 at 606 (1970).

Despite the expiration of the statutory period, the substantive right continued to exist so that a promise to pay a sum in settlement thereof is enforceable without an independent consideration. Cf. State v. Standard Oil Co., 5 N. J. 281, 295 (1950), aff’d sub nom. 341 U. S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951).

The judgment is affirmed.


text:
    IN RE GRIEVANCE OF CERTAIN EMPLOYEES IN THE DEPARTMENT OF TRANSPORTATION CONCERNING THEIR HOURS OF WORK.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1972
    Decided October 5, 1972.

      Before Judges Lewis, Caeton and Mintz.

      Mr. George L. Pellettieri argued the cause for appellants (Messrs. Pellettieri and Rdbstein, attorneys; Messrs. Lewis G. Stanley and Ira C. Miller, on the brief).

      Mr. David 8. Litwin, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Some 59 employees of the Division of Design in the State Department of Transportation appeal a decision of the Civil Service Commission holding that, despite the existence of a past practice permitting them to work only 35 hours per week, these employees are now required to work a full 40 hours as indicated by their job titles.

Appollants-employees hold engineering titles and work in the buildings of the Department. Por some years, professional engineering employees have been listed in the office records of the Department of Civil Service and Transportation as having 40-hour weeks. Such work schedules were adopted pursuant to N. J. S. A. 11 .T4-1:

The chief examiner and secretary shall, after consultation with the heads of department and their principal assistants, prepare, and after approval by the commission, administer regulations regarding * * * hours of work * * *.

The regulations and work records make no distinction between “on the road” and “in office” engineering employees.

It appears that for a number of years engineers working outside of the buildings or on the road worked 40 hours per week. However, those working in the offices of the Department worked 35 hours per week. Appellants are included in the latter group. The Commissioner of Transportation, becoming aware of the differential, issued a directive in March 1971 directing that all employees work each week the number of hours required in their respective title and regulations of the Department of Civil Service.

The appellants pursued certain grievance procedures designed to rescind the action of the Commissioner. In the fourth stage grievance the appeal of the aggrieved employees was denied.

The Commissioner then requested the Civil Service Commission to exercise its discretion to review the issue. The Commission agreed to do so, permitting both sides to submit all materials and arguments in writing, but refusing to permit the grievants to summon witnesses.

The Civil Service Commission found that the difference in working hours was accounted for by inaccurate hours of work-accounting systems sanctioned for many years by officials in the Transportation Department. However, it held that the work schedule established under N. J. S. A. 11:14-1 must be adhered to, and that there was no basis for allowing “in house” engineers to work less hours per week than “on the road” engineers. It accordingly ruled that the Transportation Commissioner’s directive must be. complied with.

We affirm essentially for the reasons set forth in the Commission’s decision.

Certain additional points raised on appeal require comment. We find no substance to the argument made by respondent that this court lacks jurisdiction to review the Civil Service Commission decision because that decision falls within a special class of administrative decisions not reviewable by the court. In re Senior Appeals Examiners, 60 N. J. 356 (1972), is dispositive on this issue.

Appellants’ counter-argument that the Civil Service Commission lacked jurisdiction to consider and decide their grievance likewise lacks merit. Such power was exercised by that agency pursuant to N. J. A. C. 4:1—23.6. Since the Civil Service Commission is given authority under N. J. S. A. 11:1A-1 to promulgate regulations concerning hours of employment, the statutory scheme would seem to contemplate also that that agency should adjudicate administrative disputes arising thereunder. Cf. Essex Com. #1, N. J. Civil Service Ass’n v. Gibson, 118 N. J. Super. 583 (App. Div. 1972).

Appellants argue that they were unduly limited by not being permitted to summon witnesses before the Civil Service Commission. Although permitting them to do so might have provided a more extensive background as to the origin of the employment practices involved in this dispute, we see no prejudice sustained by them as a result of the Commission’s ruling. The issues appear to be legal rather than factual and the record sufficiently reflects the factual background required for their resolution.

Finally, we see no merit in appellants’ contention that the March 4 directive of the Commissioner of the Department of Transportation constituted a breach of contract which required them to work only 35 hours a week. N. J. S. A. 11:14-1 reposed in the Chief Examiner and Secretary of the Civil Service Commission the function of setting the hours for the various employees of the State. In our estimation, no official of the Transportation Department had the legal right of contracting that employees therein work for more or less hours than established in accordance with the statutory mandate. Nor are we persuaded that an estoppel should be applied against the State based upon any such improper practice. That doctrine may be applied in a proper case against a public body to prevent a manifest wrong or injustice. See Voyt v. Borough of Belmar, 14 N. J. 195 (1954); Summer Cottagers’ Ass’n of Cape May v. City of Cape May, 19 N. J. 493, 503 (1955); East Orange v. Board of Water Commissioners, 73 N. J. Super. 440 (Law Div. 1962), aff’d 40 N. J. 334 (1963). No such manifest wrong or injustice inheres in a decision requiring employees to work the number of hours prescribed by their job title.

Affirmed; no costs.


text:
    JOYCE MULVEHILL, APPELLANT, v. DEPARTMENT OF INSTITUTIONS AND AGENCIES, DIVISION OF PUBLIC WELFARE, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1972
    Decided October 5, 1972.

      Before Judges Lewis, Carton and Mintz.

      Ms. Ann Mufson argued the cause for appellant (Middle-sex County Legal Services, attorney).

      Mr. Michael 8. Bolear, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Jfr. Stephen Sleillman, Assistant Attorney General, of counsel).
   Per Curiam.

Claimant, appellant herein, a welfare recipient, sought to recover certain back rent payments which she alleged the Middlesex County Welfare Board had wrongfully failed to grant. She appeals io this court from the determination of the State Division of Public Welfare affirming the county board’s decision.

Appellant and her six children have received welfare assistance under the Aid to Families with Dependent Children program (AFDC) since May 1967. In May 1968 the county board determined that appellant’s parents, then legally responsible relatives under N. J. S. A. 44:1-140, were able to contribute $94.50 a month for the support of their daughter and grandchildren. On the ground that appellant and the children resided with her parents rent-free in the father’s home, appellant received no assistance payments for rent.

In February 1969 the Dew Jersey statute relating to legally responsible relatives was amended to no longer require appellant’s parents to support her and the children. The county board, however, did not inform appellant or her parents of the change in the law. The parents continued to provide appellant and the children with cost-free shelter as well as the $94.50 a month in support up to and beyond May 1971, when appellant was rebudgeted and her grant increased. Despite regulations requiring county welfare boards to review each recipient’s budget every six months, the county board failed to review appellant’s grant from May 1968 to May 1971.

A fair hearing was held before the Division of Public Welfare of the Department of Institutions and Agencies on June 23 and July 27, 1971. There appellant sought retroactive rental payments for a six-month period prior to May 1971, the date her allowance was increased, in order to reimburse her father. Although the Division expressed the view ■that the county board should inform recipients of changes in law affecting entitlement to benefits, it found that appellant was under no contractual or other duty to repay her parents for the shelter they provided without charge. Dor, it concluded, was the State required by statute to award her retroactive benefits in order that she might voluntarily reimburse her parents. The panel therefore denied her claim for retroactive shelter payments. It is this ruling which is the subject of this appeal.

The Division acknowledges that the payments for shelter would have been in order if the evidence showed appellant was compelled to make payments during the period in question.

There are no verbatim transcripts of the hearings and the report of the agency decision is a sparse one. It appears that there was some testimony that the mother and father did not provide the shelter voluntarily and appellant intended to use corrective shelter payments to reimburse them. Against this is the assumption on the part of the Division that had the parents been aware of their new freedom from the obligation of legally responsible relatives, they 'would, nevertheless, have continued to provide shelter without charging rent.

This assumption on the part of the Division does not seem to be an adequate basis for the decision to deny retroactive corrective payments for the shelter costs. To permit the county welfare board to escape what would certainly have been its duty had it faithfully revaluated appellant’s status would seemingly thwart the intention of the Legislature of freeing relatives above a designated age from financial responsibility.

Although the record is not as dear as we would like it, we conclude that it warrants a determination that appellant is entitled to recover retroactive rental payments for the six-month period prior to May 1971 in accordance with her request and stipulated claim of $1490 at the fair hearings.

The order appealed from is reversed and the county welfare board directed to pay plaintiff the amount of the shelter costs for the six-montli period prior to May 1, 1971.


text:
    ANTHONY VENTERS, JR., PLAINTIFF-RESPONDENT, v. SELECTED RISKS INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 26, 1972
    Decided October 6, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Robert E. Edwards argued the cause for appellant (Messrs. Kisselman, Deighan, Montano, King and Summers, attorneys; Mr. Neil F. Deighan, Jr., of counsel).

      Mr. Leonard W. Moss argued the cause for respondent (Messrs. Moss, Thatcher & Moss, attorneys).
   Per Curiam.

Defendant appeals from a judgment entered for plaintiff on cross-motions for summary judgment.

Plaintiff was an employee of Public Service Coordinated Transport and was involved in a motor vehicle accident while operating a bus within the scope of his employment. He sustained personal injuries and incurred medical expenses as a result. He held a policy of insurance with defendant covering a personally owned 1962 Oldsmobile. The policy was in force on the date of the accident. Among the terms of the policy, defendant was required to pay $500 for medical expenses incurred under certain specified circumstances as the result of a motor vehicle accident. Plaintiff’s recovery from defendant in this action was under this section of the policy.

Part II of the policy as written requires defendant:

To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, * * * : To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom * * * caused by accident, (a) while occupying the owned automobile, (b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission.

The definition of “non-owned automobile” is found on a previous page of the policy, under Part I — Liability, Paid II, stating: “The definitions under Part I apply to Part II.” A non-owned automobile is there defined as one “not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.”

Plaintiff does not contend that he was misled by the terms of the policy. His argument to the court below was that the bus supplied to him for operation each day could not be considered an automobile furnished for his regular use since he did not necessarily drive the same bus each day and he was only permitted to operate it during working hours.

Defendant argues here that there is no liability because the accident occurred in a vehicle furnished for plaintiff’s regular use. It contends that the purpose of such a clause excluding non-owned automobiles regularly furnished is to prevent exposure to additional risk without the payment of an additional premium.

We reverse. It is the regular use of other motor vehicles that brings the exclusionary clause here involved into operation. Whether the insured’s employer assigns one specific motor vehicle for his regular use, or a number of motor vehicles, any one of which may be assigned for a particular trip, the result would be the same. See Hayes v. Fireman’s Fund Insurance Co., 170 Colo. 164, 460 P. 2d 225, 227 (Sup. Ct. 1969), and Voelker v. Travelers Indem Co., 260 F. 2d 275 (7 Cir. 1957). The weight of authority is in accord with this statement. See Home Insurance Co. v. Kennedy, 52 Del. 42, 152 A. 2d 115 (Super. Ct. 1959); Iowa Mutual Insurance Co. v. Addy, 132 Colo. 202, 286 P. 2d 622 (Sup. Ct. 1955); Schoenknecht v. Prairie State Farmer’s Ins. Assoc., 27 Ill. App. 2d 83, 169 N. E. 2d 148 (App. Ct. 1960); Farm Bureau Mutual Automobile Insurance Co. v. Boecher, Ohio App., 48 N. E. 2d 895 (App. Ct. 1942); Davey v. Merchant’s Mutual Casualty Co., 97 N. H. 236, 85 A. 2d 388 (Sup. Ct. 1952); Whaley v. Great American Insurance Co., 259 N. C. 545, 131 S. E. 2d 491 (Sup. Ct. 1963); Grantham v. U. S. Fidelity and Guarantee Co., 245 S. C. 144, 139 S. E. 2d 744 (Sup. Ct. 1964); Bringle v. Economy Fire and Casualty Co., 169 N. W. 2d 879 (Iowa Sup. Ct. 1969); Kenney v. Employer’s Liability Assurance Corp., 5 Ohio St. 2d 131, 214 N. E. 2d 219 (Sup. Ct. 1966); O’Brien v. Halifax Ins. Co. of Massachusetts, 141 So. 2d 307 (Fla. D. Ct. App. 1962); Dickerson v. Miller’s Mutual Fire Insurance Co. of Texas, 139 So. 2d 785 (La. Ct. App. 1962).

Plaintiff’s reliance on American Casualty Co. v. Lattanzio, 78 N. J. Super. 404 (Ch. Div. 1963), is misplaced. The factual situation presented in Lattanzio is readily distinguishable from the circumstances presented here. Compare Ruggiero v. Globe Indemnity Co., 66 Misc. 2d 948, 323 N. Y. S. 2d 292 (N. Y. C. Civil Court, 1971).

Eeversed.


author: Francis, J. S. C.

text:
    VANDER McFARLAND, PLAINTIFF, v. MOTOR CLUB OF AMERICA INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 29, 1972.

      Mr. Charles W. Qabage (Messrs. Shapiro, Brotman, Eisenstai <£• Capizola) attorney for plaintiff.

      Mr. Jerome 8. Lieb (Messrs. Lieb, Teich & Berlin) attorney for defendant.
   Francis, J. S. C.

Plaintiff Vander McFarland was a passenger in a vehicle owned and operated by Andrew McFarland when that vehicle was involved in a collision with a vehicle owned and operated by Rosa M. Roberts. As a result of the alleged negligent operation of the Roberts vehicle, plaintiff sustained special damages in the approximate amount of $2,530. Rosa M. Robert was uninsured.

Andrew McFarland was insured by Allstate Insurance Co. under an insurance agreement, which provided uninsured motorists protection to plaintiff:. Allstate paid to plaintiff the $10,000 policy limit, which amount plaintiff alleges was insufficient to fully compensate him for his expenses, personal injuries, pain and suffering.

Plaintiff also carries uninsured motorists protection in his own insurance policy with defendant Motor Club of America. Plaintiff has asserted a claim against Motor Club for whatever amount up to $10,000 by which his total damages exceed the $10,000 policy limit paid to him by Allstate. Assuming plaintiff’s damages do exceed the $10,000 already paid him, defendant denies liability therefor. Each party has moved for summary judgment pursuant to R. 4:46-1.

The uninsured motorists protection in the Motor Club policy was offered to plaintiff by legislative mandate. N. J. S. A. 17:28-1.1 reads as follows:

No automobile liability policy or renewal of such policy, of insurance insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of tbe ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State * * * unless coverage is offered in connection therewith, in limits for bodily injury or death set forth in [N. J. S. A. 39:6-69]* * * * for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile, or hit and run automobile * * because of bodily injury * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or hit and run automobile * * *

Pursuant to N. J. S. A. 17:28-1.2, plaintiff elected to accept, and therefore received, coverage to the extent of $10,000 for injury or death to one person in one accident with an uninsured motorist.

*This section provides for application to the Unsatisfied Claim and Judgment Fund for payment of a judgment in the maximum amount of $10,000 for injury or death to one person in one accident or $20,000 for injury or death to more than one person.

Plaintiff’s insurance policy with Motor Club also contains the following clause, which seemingly restricts the uninsured motorists coverage:

Other insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV (IJM) shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance. * *
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.

Defendant states the second paragraph does not control the case at bar and accordingly confines his argument to the efficacy of the restrictions imposed by the first paragraph. In reference to that paragraph, defendant contends that

* * * the ITM insurance which applies to the vehicle claimant is occupying is viewed as primary insurance, so that the claimant’s own uninsured motorist endorsement (if any) applies only in the event that its coverage is more extensive than the primary coverage and then only for the amount of such “excess.”

Under this construction, Motor Club need only adopt the $10,000 and $20,000 minimnms of N. J. S. A. 17:28-1.1 as its maximum coverage offered, in order to escape liability to its insured guest whenever the host-driver has similar coverage. In no instance will the Motor Club coverage be “more extensive” than the “primary coverage.” Plaintiff argues that such a restriction is void as against pnblic policy.

I deem the ease at bar to be analogous to those cases which have arisen out of the attempts of various insurance companies to restrict the omnibus coverage required by virtue of N. J. S. A. 39:6-46(a). See Kish v. Motor Club of America Ins. Co., 108 N. J. Super. 405 (App. Div. 1970), cert. den. 55 N. J. 595 (1970); Willis v. Security Ins. Group, 104 N. J. Super. 410 (Ch. Div. 1968) aff’d 53 N. J. 260 (1969); Newark Ins. Co. v. Concord Ins. Co., 115 N. J. Super. 147 (App. Div 1971); and Unsatisfied Claim & Judgment Fd. Bd. v. Clifton, 117 N. J. Super. 5 (App. Div. 1971).

N. J. S. A. 39 :6-46 is that section of the Motor' Vehicle Security Responsibility Law which requires all liability insurance policies to provide “omnibus coverage.” In pertinent part, it reads:

The policy shall: * * * insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured.

An insurer’s failure to provide this “omnibus coverage” leaves his customer “uninsured” for the purposes of the Unsatisfied Claim and Judgment Fund Law. N. J. S. A. 39 :6-62.

The New Jersey courts have consistently invalidated insurance clauses purporting to restrict the “omnibus coverage.” In Willis, supra, the court invalidated a coverage exclusion against individuals driving the insured’s automobile with his permission when such individuals had valid and collectible insurance in $10,000/20,000 mínimums under their own insurance policies. In Kish, supra, the Appellate Division struck down an exclusionary clause relating to the insured, his spouse or minor children. In Newark, supra, the proviso that the driver be “duly licensed” was stricken. And in Selected Risks Insurance Co. v. Zullo, 48 N. J. 362 (1966) a “scope of permission” clause was stricken.

In each of the above eases the restrictive clause was found to be inconsistent with “omnibus coverage” and was delected. In each case, however, the court presented the same statutory authority for doing so; for example, in Zullo:

When a motorist presents a policy of insurance to the Director of Motor Vehicles in order to obtain the advantages of registering an insured motor vehicle, he is offering “proof of financial responsibility” as these words are used in N. J. S. A. 39:6-46 and 48. A policy so offered must have the broad form omnibus coverage set forth in N. J. S. A. 39:6-46(a). A policy which purports to have a more restrictive omnibus coverage is automatically amended to conform to the statutory standard. N. J. S. A. 39:6-48(b). [at 373]

It is apparent that the Supreme Court relied upon the last-cited statute which specifically states that insurance policies “shall be deemed amended to conform with and to contain all the provisions required by this act.” N. J. S. A. 17 :28—1.1, the statute involved in the case at bar, contains no parallel authority for striking an insurance policy clause. But the clause in question does deny the insured coverage which the statute says shall be offered. The question which arises is: Can this court, under the rubric of “public policy,” and without specific statutory authorization, strike an insurance clause it finds repugnant to a statute ?

As pointed out in Hannan v. Employers Commercial Union Ins. Co., 117 N. J. Super. 485, 489 (Law Div. 1971) and Exum v. Marrow, 112 N. J. Super. 570, 574 (Law Div. 1970), the clear intendment of the 1969 amendment to N. J. S. A. 39 :6-62 (prohibiting holders of uninsured motorists coverage from proceeding against the Fund) and N. J. S. A. 17:28-1 et seq. (making the offer of such coverage mandatory), is to relieve some of the financial burdens of the Fund. This purpose is, of course, accomplished even by limiting an insured to proceeding against one insurer, as defendant firges. But the more general purpose of the Motor Vehicle Security Besponsibility Law, N. J. S. A. 39:6-23 to 60, the Unsatisfied Claim and Judgment Fund Law, N. J. S. A. 39:6-61 to 91, and the Motor Vehicle Liability Security Fund Law, N. J. S. A. 39 :6-92 to 104, is to provide “victims of automobile accidents with financially responsible people to look to for damages.” See Zullo, supra, 48 N. J. at 371. Both policies can be effectuated by allowing plaintiff to collect from the two insurance companies. Referring to the mandatory offer of uninsured motorists coverage, defendant in its brief concedes that:

[Manifestly, the purpose of the entire program was to insure for an innocent victim of an uninsured motorist that there would be provision for reimbursement to at least the sum of $10,000-/20,000. compensation as required in the Financial Responsibility Statute. [Emphasis supplied]

I feel the Motor Club of America policy contains language inconsistent with N. J. S. A. 17:28—1.1. Defendant asks us to declare a forfeiture, contrary to the mandate of the act, to accommodate the insurer. Defendant seeks to confine its insured to a recovery below his asserted loss, which loss is well within the multiple policy limits. The act did not place any such limit on the total amount of recovery from all sources. It could have. Defendant is attempting to supplement the legislation by limiting the insured’s relief. I feel N. J. S. A. 17:28-l.l should be read in pari materia with the Motor Vehicle Security Responsibility Law, the Unsatisfied Claim and Judgment Fund Law and the Motor Vehicle Liability Security Fund Law, the common purpose of which is to provide financially responsible people to look to for damages. Allowing Motor Club of America to engraft this limitation on the statute would mean that in most instances it will have sold their injured insured passenger a nullity.

Lastly, when the Legislature said that insurance companies must provide each insured with uninsured motorist coverage of at least $10,000/20,000 “for payment of all or part of the sums.” (emphasis supplied) he would be entitled to, I think they were recognizing the practical fact that damages often exceed even multiple policy limits; I don’t think the intention was to open the door for insurance companies to place a ceiling on recoveries. The Legislature could have done that itself.

Viewing this as a matter of construction, there are two cardinal rules to be applied when interpreting insurance contracts. First, ambiguities are resolved in favor of the insured. Bryan Const. Co., Inc. v. Employer’s Surplus Lines Ins. Co., 60 N. J. 375, 377 (1972). Second, exclusionary clauses are to be strictly interpreted. Chicago Ins. Co. v. Security Ins. Co. of Hartford, 111 N. J. Super. 291, 295 (App. Div. 1970). Applying those rules to defendant’s “other insurance” clause, we can reasonably conclude that here there was no “other similar insurance available” for the alleged amount above $10,000 for which plaintiff remains unrecompensed. (Emphasis supplied). Defendant’s “other insurance” clause would then serve only to preclude dual recoveries by forcing the insured to first report to the “primary” company and then to his own insurer for the excess, which would not be “available” from the “primary” company. This is consonant with N. J. S. A. 17:28-1.1, which provides for payments “of all or part of the sums which persons insured * * * shall be legally entitled to recover.” (Emphasis supplied).

A review of the decisional law of our sister states indicates that the minority view is represented by Morelock v. Millers’ Mutual Ins. Ass’n of Illinois, 49 Ill. 2d 234, 274 N. E. 2d 1 (Sup. Ct. 1971). The holding there was that the same “other insurance” clause we are now interpreting was valid and was not violative of Illinois public policy. The Illinois counterpart of our N. J. S. A. 17:28—1.1 was so substantially similar as to make the ease persuasive indeed.

But the majority view is typified by Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736 (Sup. Ct. 1970). Again, the “other insurance” clause was identical to ours and the Alabama statute ivas substantially similar to ours. This is a well written opinion summarizing several cases, most of which make much of the point raised earlier, i. e., that the statute imposes no limit on an insured’s recovery for his actual damages; rather, if is the insurance company seeking to do so. This case does not allow the insurer to avoid his statutorily imposed liability with a clause he himself drafted; to do so would subvert public policy in general.

In MorelocTc, supra, the majority of the court declined to accept the view of the majority of states or the “Oregon Rule.” Two Justices dissented, however, referring to a prior dissent in Putnam v. New Amsterdam Casually Co., 48 Ill. 2d 71, 269 N. E. 2d 97 (Sup. Ct. 1970). In the Putnam dissent there is a reference to the remarkable result that arose under a similar situation of dual uninsured motorist coverage. There the host-driver had the required $15,000/30,000 coverage. The passenger had identical limits in the type of policy under consideration here. The court held that although the host driver had exhausted the policy limits lor his own injuries there was no coverage under the passenger’s own uninsured motorist endorsement, since contractually there was “other similar insurance available at the time of the accident.” The possibility of such a construction should be avoided.

The Supreme Court of Alabama, when faced with a similar issue, extensively reviewed the case law of the various states on this point, concluding that the majority view which invalidates the restrictive nature of the coverage of these endorsements was preferable for a number of reasons, in Safeco, supra, the court reasoned that any compulsory motor vehicle insurance act is remedial and should be liberally construed so that the beneficial purposes intended might be accomplished. The Safeco court also reasoned that since the amount of coverage reflected statutory policy which neither explicitly nor implicitly placed limits on the amount a victim might recover, the companies could not contractually do so.

It must be borne in mind the purpose of uninsured motorist insurance is to provide compensation for personal injury to the innocent victim of the uninsured motorist. As to the named insured the coverage is a contract benefit for which he has paid. Here the damage to the insured has been determined and he now seeks indemnity for it. He is not seeking any windfall as a result of his injury but he is seeking full indemnity based on payment of two separate premiums. [243 So. 2d at 740]

As noted in Safeco, the opposite result may well be characterized as unconscionable. [At 741] This court notes that the layman insured certainly reasonably expected to receive the benefits of the coverage for which he had paid a premium.

I am convinced that the majority view, as enunciated in Safeco, supra, is the better view.

CONCLUSION

N. J. S. A. 17:28-1.1 sets a minimum recoverable amount but does not limit the total recovery. Defendant’s “other insurance” clause should be read only so as to avoid dual recoveries; N. J. S. A. 17:28-1.1 itself states this limitation. Where an insured’s loss exceeds the limits of one policy, he may proceed against other available policies. The insurance company is, of course, free to dispute the. validity of the asserted claim. But this court will not permit an insurer to escape its statutorily imposed liability by including in its policy a limiting clause which prevents the insured from receiving coverage he has paid for. Insofar as the “other insurance” clause under consideration purports to do so, it is violative of public policy and is invalid.

Defendant’s motion for summary judgment is denied; plaintiff’s motion for summary judgment is granted.


author: Stamler, J. S. C.

text:
    THE BOARD OF EDUCATION OF THE TOWNSHIP OF ROCKAWAY IN THE COUNTY OF MORRIS, A BODY CORPORATE OF NEW JERSEY, PLAINTIFF, v. ROCKAWAY TOWNSHIP EDUCATION ASSOCIATION AND JOSEPH YOUNGMAN, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided September 25, 1972.

      Mr. Alten W. Bead, attorney for Plaintiff.

      Mr. George J. Benson, attorney for defendants.

      Mr. Thomas P. Cooh, attorney for New Jersey School Boards Association, amicus curiae.

      Mr. Casset B. Buhlman, Jr., attorney for New Jersey Education Association, amicus curiae.

   Stamler, J. S. C.

Plaintiff is the Board of Education of the Township of Rockaway in Morris County. Defendants are Rockaway Township Education Association (hereinafter RTEA) and Joseph Youngman, a teacher in the employ of the Board. The Board asks that defendants be enjoined from proceeding before the American Arbitration Association on the question of interference with the “academic freedom” of the teacher in violation of a contract between the Board and RTEA.

The New Jersey School Boards Association (an alliance of boards of education throughout the State) and The New Jersey Education Association (an alliance of teacher’s associations) moved and were granted leave to appear amici curiae.

The Board filed a verified complaint and defendants filed a verified answer and counterclaim. The complaint and answer are at odds in only one minor nonrelevant disputed occurrence. This will be noted infra. Since there are no material facts in dispute and there is nothing to be added by a trial, this court will consider the matter as if cross-motions for summary judgment were made.

On June 23, 1971 the Board and RTEA entered into a contract which provided for the terms and conditions of employment of teachers in the Rockaway Township School District. In February 1972 Youngman, a teacher of humanities, was directed by the superintendent of the school district not to conduct in his 7th grade class a previously announced “debate” on the subject of abortion. The 7th grade class is composed of 11- and 12-year-old children.

It is here that the parties’ description of what was intended to take place differs: the complaint says that the debate was to be “on the pros and cons of abortion”; the counterclaim of RTEA denies “the pros and cons” allegation, but admits that the subject of the proposed debate was “the abortion laws”. Both agree it was to be a debate. Debates require affirmative and negative views advocated by opposing speakers: which of the two was the precise title is not relevant to the court’s determination. ¥or the purposes of this opinion, the subject matter was one and the same.

Defendants contend that the preclusion decision of the superintendent and its affirmance by the Board was a denial of “academic freedom” to defendants and a violation of Article XXVII, paragraph C of the collective bargaining contract between the parties.

Paragraph C reads as follows:

The Board and the Association agree that academic freedom is essential to the fulfillment of ihe purposes of the Rockaway Township School District. Free discussion of controversial issues is the heart of the democratic process. Through the study of such issues, political, economic or social, youth develops those abilities needed for functional citizenship in our democracy. Whenever appropriate for the maturation level of the group, controversial issues may be studied in an unprejudiced and dispassionate manner. It shall be the duty of the teacher to foster the study of an issue and not to teach a particular viewpoint in regard lo it. [Emphasis supplied]

Defendants demanded of the Board that the issue of the alleged violation of Article XXVII, paragraph C, as well as the issue of academic freedom of a member of the teaching staff, be processed as a “grievance” before the American Arbitration Association as provided in the contract. Notice of its intention to proceed before the Arbitration Association was given to the Board. The Board filed its complaint seeking an injunction, assorting that the appropriate forum is a proceeding before the Commissioner of Education. ETEA and the teacher, by their counterclaim, seek specific performance of the arbitration provisions, contending that the ximerican Arbitration Association is the tribunal of primary jurisdiction.

Article III, paragraph A(l) of the contract defines “grievance” as:

The term “grievance" means a complaint by an employee of the x\ssoeiation that, as to him, there has been a personal loss or injury because of an administrative decision affecting said employee, or an unjust application, interpretation or violation of a policy, or agreement. The term “grievance” and tlie procedure relative thereto shall not apply to a complaint of a non-tenure teacher which arises by reason of his not being re-employed after only two years on probation.

It is clear that both the Board and RTEA agreed that “academic freedom” is essential to the fulfillment of the purposes of the school district. The heart of the problem is the fourth sentence in the quoted section of Article XXYII paragraph C:

* * * Whenever appropriate for the maturation level of the group, controversial issues may be studied in an unprejudiced and dispassionate manner.

This court takes judicial notice that the subject of “abortion,” whether in moral or legislative concept, is controversial.

The collective bargaining agreement between the Board and RTEA contains no provision as to who is to determine “the maturation level,” not of the teacher but of the “group” of students.

No reported case law is directly in point. Many law review articles have considered “academic freedom.” The most recent are: “Developments in the Law-Academic Freedom,” 81 Harv. L. Rev. 1045 (1968); Van Alstyne, “Constitutional Rights of Teachers and Professors,” 1970 Dulce L. J. 841 (1970); “Teachers and the First Amendment,” 7 WilUamette L. J. 435 (1971) ; Aldrich and Sommers, “Freedom of Expression in Secondary Schools,” 19 Cleve. St. L. Rev. 165 (1970). Limited excerpts from context in each support the positions of the contending parties.

To determine “maturation level” requires expertise in education. One proposition upon which the authors of the articles cited above agree: a trial court is not so qualified.

This, then, places the obligation on either the teacher or the Board, or both. When disagreement arises, shall it be settled before a panel selected from the American Arbitration Association or before the Commissioner of Education with review by the State Board of Education and thereafter the appellate courts?

The New Jersey Employer-Employee Relations Act, L. 1968, c. 303, requires a public employer, including a board of education, to negotiate with the majority representative of an appropriate unit of its employees concerning the terms and conditions of employment. Specifically to be negotiated is a grievance procedure. N. J. S. A. 34:13A-5.3. In N. J. S. A. 34:13A-8.1 the following appears:

Nothing in this act shall be construed to annul or modify, or to preclude the renewal or continuation of any agreement heretofore entered into between any public employer and any employee organization, nor shall any provision hereof annul or modify any statute or statutes of this State. [Emphasis added]

It cannot be argued, therefore, that Tille 18A, “Education,” insofar as it is concerned with relationship between boards, teachers and pupils, has been superseded. Even wore this language eliminated from chapter 303, our Supreme Court has held that the general rule of statutory construction, in the absence of clear legislative direction to the contrary, requires a determination that a later statute will not be deemed to repeal or modify an earlier one, but all existing statutes pertaining to the same subject matter “are to be construed together as a unitary and harmonious whole, in order that each may be fully effective.” Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 421 (1958). Thus, the provisions of both Title 18A and chapter 303 must be read together so that both are harmonized and each is given its appropriate role.

The selection of courses to be presented to students and the subjects to be presented or discussed cannot be a “term or condition of employment.” Defendants argue “there can be no doubt that the methods of selecting courses and even more clearly, the procedures and methods by which these courses are to be presented, may be negotiated at least in broad terms.” This proposition is untenable.

The Board is responsible for the production of a “thorough and efficient” school system (N. J. Const. (1947), Art. VIII, § IV, par. 1) and particularly the statutory obligation to provide “courses of study suited to the ages and attainments of all pupils.” N. J. S. A. 18A:33-1. The Board has a continuing obligation placed upon it by the Legislature to adopt and alter courses of study.

In Wassmer v. Board of Education, Wharton, 1967 S.L.D. at 125-127, the Commissioner held that the School Law vests the management of the public schools in each district in the local boards of education. The Commissioner stated:

While the Commissioner would expect that all boards of education look to their professional employees for recommendations and guidance in matters in which educational judgments are to be made, the board is not compelled to accept the suggestions or advice it received, for it has the authority to make the ultimate determination, [at 127]

In Porcelli v. Titus, 108 N. J. Super. 301 (App. Div. 1970), certif. den. 55 N. J. 310 (1970), the following appears:

The public schools were not created, nor are they supported, for the benefit of the teachers therein, * * * but for the benefit of the pupils, and the resulting benefit to their parents and the community at large, [at 312]

The courts have recognized that public employees cannot make contracts with public agencies that are contrary to the dictates of the Legislature. Lullo v. International Asspciation of Fire Fighters, 55 N. J. 409 (1970). Nor can public agencies such as a board of education “abdicate or bargain away their continuing legislative or executive obligations or discretion.” Id., 440.

It is concluded, therefore, that if the contract is read to delegate to a teacher or to a teacher’s union the subject of courses of study, the contract in that respect is ultra vires and unenforceable. It must therefore follow that the American Arbitration Association cannot be the sub-delegee of the Board and of the teachers. Additionally, it is to be noted that the American Arbitration Association may be well qualified to “arbitrate” compensation, hours of work, sick leave, fringe benefits and the like, but they and their panels possess no expertise in arbitrating the maturation level of a 7th grade student in the elementary schools of Eockaway Township.

However, defendants who are dissatisfied with the action of the superintendent and the Board are not without a remedy. N. J. S. A. 18A:8-9 provides that the Commissioner of Education “shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws * * On subsequent appeal, our appellate courts will have the benefit of the special experience of the administrative agencies operating in the vital area of education, especially of the young.

Defendants’ counterclaim for specific performance and mandatory direction to plaintiff to submit to the jurisdiction and procedures of the American Arbitration Association is denied. Judgment for plaintiff on the Counterclaim.

The restraints heretofore entered against defendants enjoining them from proceeding before the American Arbitration Association will be made permanent without prejudice to defendants’ right to proceed before the Commissioner if they so desire.

No costs either party.


text:
    GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF, v. BANNER PONTIAC-BUICK, OPEL, INC. A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided September 28, 1972.

      Ms. Joan Solieran Y/alsack, Deputy Attorney General for the Plaintiff.

      Mr. Thomas P. Ford, Jr., for defendant (Messrs. Citrino, Car ella, Balsam & Ford, attorneys).
   Stamler, J. S. C.

The question before the court is whether the Attorney General is precluded from bringing a consumer fraud action under N. J. S. A. 56 :8—1 et seq. after defendant had been acquitted in municipal court of disorderly persons charges arising out of the same operative facts.

Defendant Banner Pontiac-Buick, Opel, Inc., a New Jersey corporation, is engaged in the business of selling new and used automobiles to the consuming public. Plaintiff, as Attorney General of New Jersey, filed a verified complaint under the Consumer Fraud Act, N. J. S. A. 56:8—1 et seq., against defendant. The complaint alleged that defendant had altered the odometer so that the vehicle purchased by a member of the consuming public was represented to have been driven less than 40,000 miles when in actuality the miles were in excess of 75,000. This was the fraud or deceptive practice charged. The relief demanded is: (a) a permanent injunction enjoining defendant from altering true odometer readings in cars thereafter sold or offered for sale to the consuming public; (b) restitution for the defrauded consumer; (c) an order revoking for an appropriate period defendant’s motor vehicle dealer’s license issued by the Division of Motor Vehicles under N. J. S. A. 39:10-9; (d) an order revoking for an appropriate period defendant’s license to operate as a motor vehicle installment seller-issued by the Commissioner of Banking in accordance with N. J. S. A. 17:16c 2 and 4; (e) a monetary penalty of $2,000 in accordance with N. J. S. A. 56:8-13, and (f) costs for the State pursuant to N. J. S. A. 56:8-11.

An order to show cause was issued for summary hearing as provided by the Consumer Frauds Act in conformity with B. 4:67-1 et seq. Prior to the return day defendant filed an answer denying the alleged turnback of the odometer and additionally set up three separate defenses. Defendant demanded a trial by jury of 12. On the return day defendant moved to have the order to show cause discharged and the complaint dismissed relying on the separate defenses of res judicata, collateral estoppel and the absence of jurisdiction in this court to enjoin what is asserted to be the violation of a criminal statute.

Prior to the filing of the complaint herein, defendant had appeared in municipal court to answer a charge that it had violated N. J. S. A. 2A:170-50.1 which declares that one who alters an odometer reading on a car is a disorderly person. Defendant was acquitted in municipal court. Plaintiff acknowledges that the activity there complained of arose out of the same operative facts which are now set forth in the case at bar.

If the res judicata plea is tenable, it must be shown that there are identical causes of action.

Defendant was tried in the prior action under a statute which makes it a disorderly persons offense to misrepresent the mileage of a motor vehicle which is offered for sale. Such offense is below the grade of a misdemeanor. Although punishable in a summary manner and quasi-criminal, the procedural rules governing criminal prosecution apply. State v. Vaughner, 76 N. J. Super. 594 (App. Div. 1962). The standard of proof to be carried by the State requires that each element be proven beyond a reasonable doubt. An acquittal, therefore, is only indicative of the fact that the prosecution was unable to meet this high burden of proof as to each and every element of the offense.

Turning now to the cause of action sub judice, the complaint was filed under a separate statute, the Consumer Frauds Act, N. J. S. A. 56:8-1 et seq.

The statement on the bill sets forth clearly the intent of the Legislature:

The purpose of this bill is to permit the Attorney General to combat the increasingly widespread practice of defrauding the public. The authority conferred will provide effective machinery to investigate and prohibit deceptive and fraudulent advertising and selling practices which have caused extensive damage to the public. [L. 1960, c. 39]

The legislative statement recognized a fact of present-day consumer life, namely, that in the ever-expanding area of commercial transactions, the consuming public is exposed and subject to widespread practices of fraud and deception employed by unscrupulous merchants.

Defendant asserts that it is harassed when subject to disorderly persons charges, an administrative action by the Director of the Division of Motor Vehicles, and a consumer fraud complaint.

It is defendant’s position that the three separate statutes under which the activity of defendant may be brought into question require that if defendant succeeds in the first action taken, defendant cannot be called upon to answer under either the second or third.

Our Supreme Court has frequently enunciated the general rule of statutory construction that in the absence of clear legislative direction to the contrary, a later statute will not be deemed to repeal or modify an earlier one, but all existing statutes pertaining to the same subject matter “are to be construed together as a unitary and harmonious whole, in order that each may be fully effective.” Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 421 (1958) (emphasis supplied).

In Kugler v. Romain, 58 N. J. 522 (1971), the Supreme Court reviewed the salutary purposes of the statute and urged trial courts to liberally interpret the concept of fraud so that the public purpose expressed in the legislative statement might be fully effected. In Kugler v. Koscot Interplanetary, Inc., 120 N. J. Super. 216 (Ch. Div. 1973), Judge Mehler commented upon the obligations of the Attorney General as a plaintiff. The relief demanded under N. J. S. A. 56:8—2 in Koscot was similar to the relief sought herein. In Romain, supra, the Supreme Court, in referring to N. J. S. A. 56 :8-8, which authorizes the Superior Court to grant injunctions or revoke licenses, succinctly pointed out that this section, when read together with the act which establishes the Office of Consumer Protection, indicates that “the Legislature intended to confer on the Attorney General the broadest kind of power to act in the interest of the consuming public.” The Attorney General is authorized to file a complaint “whether or not any person has in fact been misled, deceived or damaged thereby * * *” (N. J. S. A. 56:8-2). In addition to injunctive relief and power to revoke licenses, trial courts can order: a receiver be appointed (N. J. S. A. 56:8-2); restitution to the person defrauded (N. J. S. A. 56:8-9, 10); allowance of costs for the use of the State (N. J. S. A. 56:8-11); award of a monetary penalty (N. J. S. A. 56:8-13).

The present action is civil in nature and, unlike the municipal court action, requires plaintiff to prove his case only by a preponderance of the evidence. To preclude the State from attempting to meet the lesser burden required in a civil action simply because it did not meet the strict and much higher standard in the prior case would result in undermining the most important aim of the Consumer Fraud Act, the remedial aspect.

The injunction, receivership and revocation remedies are aimed at putting an end to the condemned fraudulent practice; restitution returns the injured consumer to status quo; the monetary penalty and award of costs places the expenses of the proceedings on the shoulders of the perpetrator and not upon the taxpayer, who is a part of the consuming public for whose benefit the statute was enacted.

Defendant places great reliance on Coffey v. United States, 116 U. S. 436, 6 S. Ct. 437, 29 L. Ed. 684 (1886). There a judgment in a criminal case acquitting Coffey of evading a tax on distilled liquor was given res judicata effect in an in rem action seeking forfeiture of his distilling equipment. Although Coffey was never expressly overruled, in later years it has been distinguished and criticized on numerous occasions. Professor Moore in 1B Federal Practice, § 0.418[3], at 2854, cites a number of the critical cases. Most adopt the rationale that penalties or forfeitures are remedial civil sanctions, and are not additional punishment for crime.

In Helvering v. Mitchell, 303 U. S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938), the Supreme Court held that an acquittal of wilfully attempting to evade income tax did not bar the Commissioner of Internal Revenue from proceeding to recover a monetary judgment of additional tax for fraudulently attempting to evade payment of the income tax.

To assist in determining identity of causes of action it is important to note that the State, after the acquittal in municipal court, had no right of appeal. An unsuccessful plaintiff in an action under the Consumer Fraud Act has the right to appeal.

In the recent decision in State v. Ebron, 61 N. J. 207 (decided July 21, 1972), Justice Mountain adopted the Hnited States Supreme Court definition of collateral estoppel:

In Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) the Supreme Court defined collateral estoppel as meaning simply “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.” 397 U. S. at 443, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475. It went on to hold, for the first time, that the rule of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Thus a defendant urging collateral estoppel is now projecting an argument of constitutional dimension. Compare State v. Cormier, 46 N. J. 494, 505 (1966).

The key words in the above quotation applicable to the case at bar are “between the same parties.”

The Attorney General in our State is responsible for the enforcement of criminal laws through county prosecutors and for proceeding in his name as plaintiff sues under the Consumer Fraud Act.

Although neither the Consumer Eraud Act, nor the statute creating the Office of Consumer Protection in the Division of Law of the Department of Law and Public Safety (N. J. S. A. 52:17B-5.6 et seq.), vests in the Attorney General the exclusive power to act in the area of consumer fraud (Olive v. Graceland Sales Corp., 61 N. J. 182, 185 (1972)), when he sues he sues for a class, the public as a consumer. Riley v. New Rapids Carpet Center, 61 N. J. 218 (1972). In Riley the court noted that the Legislature had “authorized public officials to sue for a class of victims and to restrain further depredations.” He also appears as attorney for the Director of Motor Vehicles in administrative actions under Title 39 where the Director seeks to revoke the car dealer’s license. To hold that as a prosecutor in criminal matters and as plaintiff in a civil matter, or as attorney for a division of the Executive Branch, such as the Department of Environmental Protection or Division of Motor Vehicles, the Attorney General is the identical party, would serve to emasculate a prodigious number of statutes in which remedial demands for judgment were created by the Legislature. Certainly it could not have been intended that a proceeding in the name of the State by a local prosecutor would forever collaterally stop the Attorney General in an ex rel. action or as legal advisor and attorney to an administrative agency. The door would then be opened for an immunity both under the Disorderly Persons Act by a local prosecutor. In Helvering, supra, the Department of Justice by the United States Attorney prosecuted the criminal case in the name of the United States, and the Commissioner of Internal Revenue was represented by the Department of Justice in the civil action which followed the acquittal.

It is concluded that defendants’ motion to dismiss on the grounds of res judicata and collateral estoppel is denied.

Plaintiff seeks final judgment in a summary proceeding as is authorized under N. J. S. A. 56:8-8, and it is therefore appropriate under R. 4:67-1. The answer filed demands a trial by jury of 12. The statute provides that the court may grant injunctive relief and additional remedies, including the revocation of licenses, and may make such orders or judgments necessary to restore to any person money or property wrongfully acquired in violation of the act. In short, the remedies provided in the statute are injunction, restitution and appointment of a receiver, ail clearly equitable in nature. No constitutional right exists to a jury trial in equity actions for injunctive relief. United States v. Louisiana, 339 U. S. 699, 706, 70 S. Ct. 914, 94 L. Ed. 1216 (1950). If relief provided is equitable rather than legal in nature, the right to jury does not attach, even if financial restitution is part of the equitable relief available. Nat’l Labor Relations Board v. Jones and Laughlin, 301 U. S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937).

While the Seventh Amendment to the United States Constitution grants a right to trial by jury in suits- where the value in controversy exceeds $20, that right is limited to those cases where the right existed at common law. Our State Constitution, Article I, paragraph 9, provides that “the right of trial by jury shall remain inviolate.” This constitutional provision was not intended as a grant, enlargement or restriction of the right of trial by jury. It guaranteed jury trials in order to safeguard the right against attrition, either by the Legislature or the courts, in cases where it existed at the time of the adoption of the Constitution of 1776. Steiner v. Stein, 2 N. J. 367 (1949).

The scope and limitations of the constitutional guaranty of right to trial by jury were summarized by Chief Justice Vanderbilt in Steiner:

By article I, paragraph 9, of the Constitution of 1947, “The right of a trial by jury shall remain inviolate.” This provision means exactly what it says. Where the right to a trial by jury existed under the Constitution of 1844', the right continues unimpaired under the new Constitution. The constitutional provision does not, however, in anywise affect the practice in the various proceedings at law, such as many kinds of suits in lieu of prerogative writs, or in equity, probate, statutory or administrative proceedings generally of trying issues of fact to the Court without a jury. Wherever an issue of fact was triable without a jury under the Constitution of 1844, it is triable without a jury under the Constitution of 1947. [at 378]

The matter before the court is an action completely unknown to the common law. It arises out of a statute evidencing the Legislature’s recognition of the complexities of commercial bargaining in contemporary society and the need for the protection of the consumer.

Defendants are not entitled to a jury trial.

Plaintiff shall submit within ten days an order in conformity with this opinion striking the separate defenses, denying the motion to dismiss and denying a jury trial, consented to as to form or under the five-day rule.

Defendant has annexed to its answer an affidavit of its principal officer. It directly contraverts the affidavits supplied by plaintiff.

Each side should have the opportunity of cross-examination. The trial will be brief. Uo pretrial conference is necessary. Upon entry of the order, the court will fix an early date for trial.