author: Seidman, J. C. C.

text:
    BROOKDALE PARK HOMES, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. THE TOWNSHIP OF BRIDGEWATER, A MUNICIPAL CORPORATION OF NEW JERSEY, AND THE PLANNING BOARD OF BRIDGEWATER TOWNSHIP, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 13, 1971.

      Mr. Jack J. Camillo for plaintiff (Messrs. McDonough, Murray & Meeker, attorneys).

      Mr. Gene G. King for defendants (Messrs. Allgair, King & Kelleher, attorneys).
   Seidman, J. C. C.

(temporarily assigned). Plaintiff Brookdale Park Homes, Inc., in its complaint against the Township of Bridgewater and its planning board, seeks to quiet title to a tract of land owned by it and said to have been reserved for recreational purposes when the local planning board granted final approval for a major subdivision which included the tract in question. As additional relief, plaintiff demands judgment declaring the reservation void and vacating any interest the township may have in the affected lot.

The parties have submitted the issues to the court on a stipulation of facts and exhibits.

From the exhibits, consisting of copies of pertinent maps, planning board minutes and other related documents, the court finds the sequence of events to be as follows:

1. On May 15, 1956 Charles Bicknell, a vendee under contract, filed with the township planning board an application for classification of a sketch plat. The tract, situated on the westerly side of Tullo Road and containing 33.318 acres, was divided into 30 building lots. The map was classified as major subdivision.

3. At a planning board meeting on May 38, 1956, during a discussion of the proposed subdivision, “a recreational area was also asked for and the Planning Board suggested one lot would be satisfactory.”

3. On June 19, 1956 Bicknell applied for tentative approval of the subdivision plat, the details of which were essentially the same as those on the sketch plat. The accompanying map, entitled “Martinsville Estates,” depicted 30 lots, 10 on each side of a proposed street running westerly from Tullo Road. Lot 30 (the one in question), about an acre in size, was located on the southerly side of the street and at the westerly end of the tract.

4. The subdivision was discussed at a meeting of the board on June 19, 1956. Bicknell was represented by counsel, who stated his client was unwilling to provide such areas (recreational) and challenged their usefulness. “The Board invited Mr. Welch to further discuss the matter with his client and will reschedule his application for Tentative Approval for the next regular meeting on July 17, providing the requirements of the Township Ordinance are complied with.”

5. By deed dated July 3, 1956 Arnold G-ussen, Sr. and Anna K. Gussen conveyed the tract to Charles Bicknell and Ann Marion Bicknell, his wife, and Harold Brynildsen and Evelyn Brynildsen, his wife.

6. On August 7, 1956 Harold Brynildsen and Charles Bicknell filed with the planning board an application for tentative approval of a preliminary subdivision plat. It described the same tract, but the number of proposed lots was stated to be 19.

7. Submitted with the application was a map, similar to the one referred to earlier herein, which again referred to the subdivision as “Martinsville Estates” and which showed the same layout of lots, except that the one previously shown as number 20 was now designated “Playground Area.”

8. At the public hearing on September 18, 1956, and at the meeting of November 30, 1956 when preliminary approval was granted, the subject of the playground area was not discussed.

9. On January 15, 1951 an apparent new owner of the tract, one Eichard Plenninger, and his engineer appeared before the board on problems relating solely to drainage and paving.

10. The next owner was H. & M. Construction Company, to whom Bicknell and Brynildsen had conveyed the tract on July 9, 1951. Although its representative discussed various matters at the April and May meetings of the board, the subject of the recreation area was not raised.

11. When H. & M. Construction Co. applied for and was granted final approval of the subdivision on October 22, 1951, the accompanying map showed the same playground area as had been depicted on the earlier one.

12. Thereafter, on December 3, 1951 the final plat, “Map of Martinsville Estates,” was filed in the office of the Somerset County Clerk. The lot marked “Playground Area” is shown on it, and is also designated thereon as Lot 1, Block 5606.

13. On December 10, 1951 H. & M. Construction Co. conveyed the tract to Brookdale Park Homes, Inc., plaintiff herein.

In addition to the above, counsel have stipulated these facts:

A. A subdivision performance bond was given by H. & M. Construction Co., as principal, and Continental Casualty Company, as surety, in the penal sum of $28,134.00 to guarantee the installation of the subdivision improvements required for the subdivision shown on the “Map of Martinsville Estates” which was filed in the Somerset County Clerk’s Office on December 3, 1957 as Map No. 542. This bond was dated October 28, 1957.
B. Sheet 72 (B) of the Bridgewater Township Tax Map, showing the area in question, bears no playground area designated or other notation for Lot 1 in Block 5606 — the land which is the subject of this civil action.
C. The Township Gommittee of Bridgewater Township has not passed any resolution or motion or ordinance formally accepting Lot 1 in Block 5606 on Sheet 72 of the Township Tax Map as a playground area or as a park or other similar public place.
D. No taxes have been paid on Lot 1 in Block 5606 on Sheet 72 of the Township Tax Map since the finalization of the subdivision of the 22-acre tract known as Martinsville Estates, and no taxes have been assessed thereon.
E. The plaintiff has never used or made physical ¡use of Lot 1 in Block 5606 on Sheet 72 of the Township Tax Map — the premises which are the subject of this civil action.
P. If the plaintiff had applied for a permit to build a single-family dwelling on Lot 1 in Block 5606 as shown on Sheet 72 of the Township Tax Map, in conformity with all Township Ordinance and regulations, such application would have been denied because of the designation “playground area-’ shown on the filed Map of Martinsville Estates.
G. The Parks and Recreation Commission of Bridgewater Township has under consideration a Park Plan which involves the full use of Lot 1, Block 5606 (The premises in question) for block park purposes and as access to a large proposed park area adjacent thereto.

Plaintiff contends that the local planning board required a portion of the proposed subdivision to be set aside for playground or recreational purposes as a condition of subdivision approval, and asserts that since the township had neither entered into a contract to purchase the site nor instituted condemnation proceedings to acquire it, pursuant to N. J. S. 40:55-1.20, the reservation is no longer effective. The township concedes a master plan had not been adopted and standards for the allocation of portions of subdivision for park and playground purposes were not contained in the land subdivision ordinance, and acknowledges that the planning board could not validly require a reservation of the playground area.

The second count of the complaint charges that the “reservation” of the playground site “was involuntary and was made under duress in that the Bridgewater Township Planning Board stated that it would not grant subdivision approval unless such playground site was reserved.” The subject of the playground area was discussed at only two planning board meetings. At one, in May 1956, at a preliminary discussion of the proposed subdivision when Charles Biekness was the applicant, the minutes reveal that “a recreational area was also asked for and the Planning Board suggested one lot would be satisfactory.” No objection was raised. The matter was discussed again in June 1956, at which time Bicknell’s counsel expressed his client’s unwillingness to provide a recreation area. Nevertheless, the preliminary plot plan submitted for approval in August 1956 indicated one of the lots as “Playground Area,” and the lot continued to be so marked on later maps, including the one filed with county clerk’s office. A scrutiny of the planning board minutes fails to support plaintiff’s contention that the designation was made “by virtue of undue coercion and duress.” There is no suggestion that approval of the subdivision was conditioned upon the setting aside of a lot for playground purposes, or that the applicant was compelled in any other way to act against his will. Cf. West Park Avenue, Inc. v. Ocean Tp., 48 N. J. 122 (1966). It should also be noted that plaintiff was not the applicant at the time of the alleged coercion.

If the designation of the lot in question as a playground area was not a reservation within the scope of N. J. S. 40:55-1.20, and if it did not result from duress or coercion, what, then, is the basis for the relief sought by plaintiff ? Defendants urge that the filed map, with the designation thereon of a playground area, constituted an irrevocable dedication of the lot for a public purpose.

Despite the fact that the first count of the complaint is based upon the alleged failure of the township to enter into a contract to purchase the lot or to proceed to acquire it by condemnation within one year of the purported reservation, an issue no longer in the case, the pretrial order states the purpose of the suit to be a “Quiet title action to compel vacation of dedication of recreational area on subdivision map.” Dedication is one of the listed issues, and plaintiff, in its factual contentions, denies that there was a dedication, thus at least impliedly recognizing its existence as an issue.

Defendants interpose several challenges to plaintiff’s cause of action. They say, first, that plaintiff has not been in “peaceable possession” of the lot in question. There is no doubt that the purpose of the statute relating to actions to quiet title, N. J. S. 2A :62-l et seq., is to put within the power of a person, who is in peaceable possession of realty as an owner, a means to compel any other person, who asserts a hostile right or claim, or who is reputed to hold such a right or claim, to come forward and either disclaim or show his right or claim, and submit it to judicial determination. Paterson v. Schneider, 31 N. J. Super. 598 (App. Div. 1954). One could argue that the facts present in this case do not fit within the statutory action to quiet title, but the parties have stipulated that plaintiff would not be entitled to a permit to build a single-family dwelling on the lot. To that extent, there is a potential cloud on the title, and equity has jurisdiction to remove the cloud if such relief is warranted. See Garden of Memories, Inc. v. Forest Lawn Memorial Park Assn, 109 N. J. Super. 523, 532 (App. Div. 1970), certif. den. 56 N. J. 476 (1970).

Another contention is that plaintiff has no title to the lot in question sufficient to support an action to quiet title, on the theory that it was charged with knowledge of the subdivision map when it acquired ownership and that its title is subject to the dedication, so that it cannot now prevail. The argument is without merit. Assuming a dedication or offer thereof in this case, and no municipal acceptance thereof, the fee nevertheless remains in the grantor, subject only to such rights as the public may have, if any. See Dummer v. Board of Selectmen, 20 N. J. L. 86 (Sup. Ct. 1843); Trustees of M. E. Church of Hoboken v. Mayor and Common Council of Hoboken, 33 N. J. L. 13, 19 (Sup. Ct. 1868).

The crux of the case is whether there was a dedication of the lot in question. The basic principles which apply are set forth in Velasco v. Goldman Builders, Inc., 93 N. J. Super. 123 (App. Div. 1966):

The term “dedication” has been defined as “the permanent devotion of private property to a use that concerns the public in its municipal character * * Black v. Central Railroad Co., 85 N. J. L. 197, 202 (E. & A. 1913). * * * Under common law principles, to which we look for guidance, dedications may be either express or implied. The former is ordinarily effected by a deed of grant or by a written or oral declaration of intention, while an implied dedication arises “from conduct of the dedicator which falls short of an express statement of intent to dedicate but which nevertheless manifests an intent to dedicate land to public use.” Cunningham and Tisehler, “Dedication of Land in New Jersey,” 15 Rutgers L. Rev. 377, 384^-385 (1961).
The dedication of private lands to public use being essentially a matter of intent, in assessing the quality thereof the court should concern itself not with intentions that remain unrevealed but with those evidenced “by the acts or conduct of the dedicator.” Haven Homes v. Raritan Tp., 19 N. J. 239-246 (1955). Although an acceptance of a dedication of the locus in quo is necessary prior to imposing responsibilities upon a municipality and vesting any present right of use in the public, a dedication is, nevertheless, complete and irrevocable as far as the landowner is concerned as soon as he has manifested an intent to devote the land to public use. See Trustees of M. E. Church of Hoboken v. Mayor and Common Council of City of Hoboken, 33 N. J. L. 13, 21-22 (Sup. Ct. 1868) ; Coleman House, Inc. v. City of Asbury Park, 129 N. J. Eq. 399, 401-402 (Ch. 1941), and Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119, 126 (1956).
Indeed the dedication may never be accepted, but the power of acceptance continues indefinitely in the public authorities until such time as they reject or vacate the dedicated lands by official municipal legislative action. See Osterweil v. City of Newark, 116 N. J. L. 227, 230-231 (E. & A. 1936), and Highway Holding Co. v. Yara Engineering Corp., supra. A dedication may be “designed by the owner to be accepted by the public in praesenti or in futuro.” Mayor, etc., of Jersey City v. Morris Canal and Banking Co., 12 N. J. Eq. 547, 562-563 (E. & A. 1859), and the actual possession and dominion over the dedicated lands “may be suspended and lie dormant until such time as in the judgment of the proper local authorities the public exigencies require their possession and use.” Lower Tp. v. Reeves, 14 N. J. Super. 180, 183 (Ch. Div. 1951). See also George Van Tassel’s, etc., Inc. v. Town of Bloomfield, 8 N. J. Super. 524, 532 (Ch. Div. 1950). [at 133-135]

Eor a comprehensive discussion of the subject, see Cunningham and Tischler, “Dedication of Land in New Jersey,” 15 Rutgers L. Rev. 377 (1961).

Plaintiff’s argument on the issue of dedication is difficult to follow. The initial point made is that the element of “voluntariness” must be present for “the legal act of dedication to be fulfilled and thus binding on the person making such dedication.” Presumably, plaintiff’s position is that if the designation of the playground area was a dedication, it resulted from undue coercion and duress and, therefore, should be vacated. The court has already determined that the setting aside of the lot was not exacted wrongfully by the planning board — proof of coercion and duress is lacking. Consequently, it follows that the designation of the playground area was voluntary on the part of the applicant for subdivision approval.

Plaintiff also argues that the township has not formally accepted the alleged dedication, but defendants do not claim such acceptance. Significantly, plaintiff acknowledges that “there is presently no legal time limit within which an acceptance must take place and that a municipal agency may quite frankly take its time in deciding whether to accept or not.”

In Velasco v. Goldman Builders, Inc., supra, the court noted that the dedication of private lands to public use is essentially a matter of intent. This has long been the law in this State. See Central R. R. Co. v. State, 32 N. J. L. 220 (Sup. Ct. 1867); Wood v. Hurd, 34 N. J. L. 87 (Sup. Ct. 1869). If there was a dedication in the case now before the court, it necessarily had to arise by implication from acts and conduct manifesting an intent to dedicate, inasmuch as there was no deed of grant or written or oral declaration of intention.

In determining intent in this case, one must consider what was actually done. The notation “Playground Area” (replacing what had previously been marked lot 20), appears for the first time on the preliminary plot plan of Martinsville Estates, dated June 15, 1956. The revised map of May 13, 1957, when submitted for final approval, contains the same legend, as does the map ultimately filed with the county clerk. The latter also bears this endorsement: “The subdivision shown hereon is made with the free consent and in accordance with the desires of H. & M. Construction Co. by Harry Zilinski sec., owners.”

There is no doubt that the selling of lands with reference to a map upon which lots and streets are delineated constitutes a dedication of the streets to the public, which dedication cannot be revoked except by consent of the municipality. Haven Homes v. Raritan Tp., 19 N. J. 239 (1955); Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119 (1956); Kiernan v. Primavera, 109 N. J. Super. 231, 235 (Ch. Div. 1970). The same rule of dedication applies where the filed map contains an area or lot marked “park” or for a similar recreational purpose. Price v. Inhabitants of Plainfield, 40 N. J. L. 608 (E. & A. 1878); Mayor, etc., Bayonne v. Ford, 43 N. J. L. 292 (Sup. Ct. 1881); Bozarth v. Egg Harbor City, 89 N. J. Eq. 26 (Ch. 1918); Broadway Trust Co. v. Haddonfield, 95 N. J. Eq. 521 (Ch. 1924), aff’d 96 N. J. Eq. 734 (E. & A. 1924). See also Blank v. Haddonfield,, 95 N. J. Eq. 528 (Ch. 1924).

Neither the stipulated exhibits nor the agreed facts indicate whether lots in the subdivision were sold by reference to the filed map, although it is common practice to do so. Earlier cases held that where no conveyances have been made by reference to a map, the showing of a street on the map is neither a dedication nor a tender of dedication to the municipality. Currie v. Jersey City, 95 N. J. Eq. 412, 414 (Ch. 1924), aff'd 98 N. J. Eq. 689 (E. & A. 1925). See also Vanatta v. Jones, 42 N. J. L. 561, 563-564 (Sup. Ct. 1880). However, in the case of N. J. Highway Authority v. Johnson,. 35 N. J. Super. 203 (App. Div. 1944), the court said:

A distinction is perceptible between an offer to dedicate and a complete dedication. It was long ago held that where the owner of urban property has laid it off in lots, with streets, avenues, and alleys intersecting it, and conveys the lots with reference to the map, his acts will be deemed to constitute a dedication of the streets, avenues and alleys to the public. Clark v. City of Elizabeth, 40 N. J. L. 172, 174 (E. & A. 1878) ; Dodge & Bliss Co. v. Mayor and Alderman of Jersey City, 105 N. J. Eq. 545, 550 (E. & A. 1930). Here there was no proof that the owner had sold any lot with specific reference to the filed map.
Before there was any legislative enactment relative to the filing of such maps the owner of lands might lay them out into blocks and streets at his own free will and the public would not acquire any interest therein until by some decisive and irrevocable act, either toward the public or toward a grantee, it became improper and unjust to permit him to deny the public use and character of the highways. * * *
Here legislation existed regulating the approval and filing of such a map, and under recent legislation considerable formality attends the preparation, the requisite approvals and the permissible filing of such maps and ground plans. The deliberate and successful pursuit of such formalities by the owner of land does carry, we think, the manifest implication of an offer to dedicate for the public use those delineated areas which are definitely designated on the map or plan as streets, [at 211-212]

The above quotation is equally applicable to the designation on a map of a park or, as here, a playground area.

The court is convinced that the evidence in this case warrants the factual conclusion of an intent to dedicate — or offer to dedicate — the playground area to the public. This conclusion is reached not only because of the filing of the map and the legend thereon. There are other facts, none of which, standing alone, is decisive, but, taken together, they support the conclusion. One is the passage of time. More than ten years elapsed between the filing of the map and the institution of suit, during which no attempt seems to have been made by plaintiff or its predecessors in title to repudiate or set aside the dedication. Defendants’ brief asserts that plaintiff requested the governing body to adopt an ordinance vacating the playground area, apparently in 1968. The stipulated facts do not include the request, but in any event it was obviously unsuccessful. Since the plaintiff, presumably with full knowledge of all the facts, did nothing to assert its claim, such inaction justifies the inference that plaintiff acknowledged the existence of the dedication. Indeed, the attempt to have the dedication vacated by ordinance can be construed as at least an implied recognition thereof.

It is also noted that no taxes have been assessed against the lot in question. While the failure to assess taxes does not constitute municipal acceptance of dedicated land, Arnold v. Orange, 73 N. J. Eq. 280, 282 (Ch. 1907); Fuller v. Belleville Tp., 67 N. J. Eq. 468 (Ch. 1904); Kiernan v. Primavera, supra; and although neither side claims there was an acceptance here, nevertheless, plaintiff’s apparent awareness that taxes were not assessed is yet another fact to be considered on the issue of intent to dedicate. See Currie v. Jersey City, supra, 95 N. J. Eq. at pp. 415-416.

Once the owner’s intention to dedicate his property to a public use is unequivocally manifested, the power of acceptance continues indefinitely in the general public and in the authorities who represent the public. Cunningham and Tischler, op. cit. supra, at p. 383 and cases cited. See also Highway Holding Co. v. Yara Engineering Corp., supra, 22 N. J. at p. 125. It may be exercised at any time the public wants or convenience requires such action. Trustees of M. E. Church of Hoboken v. Mayor and Common Council of Hoboken, supra.

Bridgewater’s intentions with respect to the lot in question are clear. Among the exhibits is a letter dated July 25, 1968, from the Superintendent of Parks and Recreation to the maj'or. It is in response to an inquiry concerning the lot and contains a comment that “I did not find that this particular piece of land would have any great recreation or park importance to the Committee’s overall program. Its size is small and did not lend itself to economic development nor anything other than a tot lot.” The letter may have been prompted by the request to vacate the playground area, but the stipulated facts do not explain it. However, it cannot be construed as an unequivocal rejection of the lot by the township. On the contrary, another exhibit, containing excerpts from a 1937 report on a master plan, stresses the absence of parks and playgrounds in the municipality and recommends that playgrounds for both child and adult use should be within or convenient to every residential neighborhood; and one of the stipulated facts is that the “Parks and Recreation Commission of Bridgewater Township has under consideration a Park Plan which involves the full use of Lot 1, Block 5606 (the premises in question) for block park purposes and as access to a larger proposed park area adjacent thereto.”

To summarize, the court concludes that plaintiff’s predecessors in title voluntarily and unequivocally manifested their intention to dedicate (or offer to dedicate) the lot in question to public use as a playground area, and that such dedication or offer may be accepted or rejected by the public authorities at any time in the future. Consequently, plaintiff is not entitled to the relief it seeks.

The result reached renders moot defendants’ contention that the owners of lots shown on the map of Martinsville estates should have been joined as necessary parties, and plaintiff’s response that the owners released whatever rights they might have had and therefore did not have to be joined.

There will be a judgment in favor of the defendants. Counsel for the defendants shall submit a form of such judgment in accordance with R. 4:42-1.


source: Caselaw Access Project

license: Public Domain

text:
    STATE TROOPERS FRATERNAL ASSOCIATION, INC., A CORPORATION OF THE STATE OF NEW JERSEY, STANLEY HETMAN, ROBERT BABIAK AND THOMAS ISKRZYCKI, PLAINTIFFS, v. STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE; AND STATE OF NEW JERSEY, DEPARTMENT OF CIVIL SERVICE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 23, 1971.

      Mr. Thomas J. Savage for plaintiffs (Mr. Paul R. Williams, Jr., attorney).

      Mr. Theodore A. Winard, Deputy Attorney General, for defendants (Mr. George F. Kugler, Attorney General of New Jersey, attorney).
   Seidman, J. C. C.

(temporarily assigned). Plaintiffs’ lawsuit seeks to restrain and enjoin the Superintendent of State Police from making appointments to existing promotional vacancies and to compel the Division of State Police to conduct competitive promotional examinations prior to the filling of vacancies. The corporate plaintiff, according to the complaint, was selected by a majority of the members of the Division of State Police holding the rank of trooper as their sole representative and bargaining agent, pursuant to the provisions of the Kew Jersey Employer-Employee Relations Act of 1968, N. J. S. A. 34:13A-5.3. Thomas Iskrzycki, a state trooper, is the only one of the individual plaintiffs so identified in the pleadings, but it appears that the others are also members of the Division.

Because of the subject-matter of the litigation, the Department of Civil Service was added as a party defendant at the suggestion of the court.

Upon the filing of the complaint and supporting affidavits, an order was entered directing the Division of State Police to show cause why a preliminary injunction should not be issued pending the final hearing. Subsequently, counsel agreed to submit the issues to the court on a stipulation of facts and the pleadings and affidavits on file, as though each side had moved for summary judgment.

The basic facts are not in dispute. The issue to be decided, concededly one of law, is whether promotions in the Division must be made on the basis of competitive examination under the Civil Service Law. No reported case has been cited by counsel, and the court has found none, which deals with the precise problem here involved.

The stipulated facts, in pertinent part, are these:

At present there are no competitive promotional examinations of any type in the Division of State Police. None of the individual plaintiffs will be afforded a competitive promotional examination. All promotions within the Division of State Police are presently made by the Superintendent of the Division with the approval of the Attorney General of New Jersey. Troopers are presently treated as members of the unclassified service of the State, and competitive promotional examinations are not afforded to members of such classification.

The thrust of plaintiffs’ case is that members of the Division of State Police are in the civil service of the State and that promotions in the Division are required to be filled by competitive examination pursuant to the N. J. Const. (1947), Art. VII, § 1, par. 2, and the Civil Service Law, N. J. S. A. 11:4^2. Defendants response is that the Constitution does not provide a guaranteed right of competitive promotional examinations to a member of the State Police; that a member of the State Police is in the unclassified service; that the Civil Service Law does not entitle a member of the State Police to a competitive promotional examination, and that a promotion in grade is within the exclusive sphere of authority of the Superintendent of State Police.

The Division of State Police in the Department of Law and Public Safety (then designated as Department of State Police) was created and established by L. 1921, c. 102; N. J. S. A. 53:1 — 1 et seq. The statute provides that all the officers and troopers enumerated therein shall be appointed or reappointed by the Superintendent for a period of two years, and shall be removable by him after charges have been preferred and a hearing granted. N. J. S. A. 53 :l-8. Qualifications and examinations for appointment are set forth in N. J. S. A. 53 :l-9. Tenure is granted after continuous service of five years. N. J. S. A. 53:1 — 8.1.

The only provision for promotion is’ in N. J. S. A. 53:1-5.2, which provides as follows:

Notwithstanding any other provision of law, the rank and grade of any member of the State Police may be changed from time to time, and the number of personnel increased, by the superintendent of State Police where such change or increase is necessary for the efficient operation of the Division of State Police in the Department of Law and Public Safety; provided, the action of the said superintendent in making any such change or increase, shall be approved by the head of said department. * * * [Emphasis supplied]

Plaintiffs argue that, irrespective of the statute, members of the State Police are in the civil service of the State. So' far as his case is concerned, the manner of their appointment is not in issue. Only the issue of promotion is involved, plaintiffs claiming the right to a competitive examination by virtue of Art. YII, § 1, par. 2 of the New Jersey Constitution (1947), which provides:

Appointments and promotions in the Civil Service of the State * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive * * *. [Emphasis supplied]

However, the Constitution does no more than give permanence and constitutional stature to a civil service system which had been established by statute many years before. In the case of Bayonne v. Dougherty, 59 N. J. Super. 288, 295-296 (App. Div. 1960), appeal dismissed 34 N. J. 240 (1961), the court said:

r * * Tlie Constitutional Convention of 1947 merely wrote into the state charter what had for years been the keystone of New Jersey’s personnel system. See L. 1908, c. 156, § 1, now R. S. 11:4-2; N. J. S. A. 2 Proceedings of the Constitutional Convention of 191ft, 1126 (Report of the Committee on Executive, Militia and Civil Officers), and page 1133 (Committee Proposal, “Public Officers and Employees," Sec. I, par. 2) ; and see, generally, ibid. 1465, Carpenter, “Civil Service The Personnel Article in the State Constitution” (monograph). The Legislature has through the years, by the careful process of amendment and supplementation of the Civil Service Act, adopted such provisions as policy and experience indicated where necessary, all to the end of strengthening the merit system. We will not read the cited section of the Constitution to mean any more than it says, nor carry the legislative intention beyond what is expressly or by clear implication called for by the statutes.

The constitutional language is similar to and obviously patterned after that contained in the Civil Service Law from the time of its first enaactment in 1908. L. 1908, c. 156, § 1; N. J. S. A. 11:4 — 2, states:

Appointments to and promotions in the civil service of the state shall be made only according to merit and fitness, to be ascertained, as far as practicable, by examinations, competitive, if practicable. No person shall be appointed, transferred, reinstated, promoted, reduced or dismissed as an officer, clerk, employee or laborer in the civil service under the government of the state in any manner or by any means other than those prescribed by this subtitle.

As originally adopted, the Civil Service Law established two general classes of state service, the elasssified service and the unclassified service, and provided that the latter should not be subject to any of the provisions of the act. L. 1908, c. 156, § 11. The specific offices so excluded are listed in § 11. No tenure was conferred on this class, and appointment to it could be made without competitive examination. See Perrella v. Board of Education, Jersey City, 51 N. J. 323, 333 (1968). Included in the classified service were all persons in the paid service of the State or the municipalities thereof that might adopt the provisions of the act, except those in the unclassified service. The classified service was subdivided into four groups: exempt, competitive, noncompetitive and labor. The 1930 supplement to the Civil Service Law seems to have abolished the exempt subclass, although retaining the distribution of the civil service into the classified and unclassified services. L. 1930, c. 176. See Campbell v. Dept. of Civil Service, 39 N. J. 556, 557 (1963). Such distribution still exists, having been incorporated in subsequent amendments, and the classified service is no longer divided into subclasses. L. 1948, c. 121; L. 1952, c. 293. As the law reads today, “classified service” means, unless otherwise provided in the subtitle, all positions in the state service, whether paid or unpaid, full-time or part-time, whether existing or hereafter created, except positions held by persons enumerated in section 11:4^4. N. J. S. A. 11:4r-3. Comparable provisions for counties, municipalities and school districts are found in N. J. S. A. 11:9-l et seq. N. J. S. A. 11:4r-4, captioned “unclassified service,” lists 21 categories of positions not within the classified service, covering elected offices, department heads, judges, members of the state military and naval services, and a wide and varied assortment of other officers and employees. The unclassified service of counties, municipalities and school districts is detailed in N. J. S. A. 11:22-2. With the exception of subparagraph (u) of section 4, none of the positions or offices listed therein is applicable to State Police troopers. Subparagraph (u) encompasses

Such other offices and positions not now included in the unclassified service by this section or by any other statute, as the Civil Service Commission shall, from time to time, determine, according to law, to be in the unclassified service. [Emphasis supplied]

Defendants contend that members of the State Police are included in the unclassified service by virtue of this sub-paragraph. More specifically, they argue that the clear intent of the statute creating the Division of State Police is to exclude its members from the classified service. As a consequence, such members are not subject to any of the provisions of the Civil Service Law, including those pertaining to competitive promotional examinations.

Plaintiffs’ reasoning, on the other hand, is that N. J. S. A. 11:4-3 includes in the category of classified service all state employees unless otherwise specifically excluded, and that neither N. J. S. A. 11:4-4 (u) nor the State Police statute explicity excludes troopers from that category. They further contend that the Civil Service Commission has not placed troopers in the unclassified service by administrative determination. Moreover, they say, even if members of the State Police are in the unclassified service, they are, nevertheless, entitled to competitive promotional examinations.

The last point is without merit. A state employee cannot be in the classified service for one purpose and in the unclassified service for another. If he is in the classified service, he is entitled to the security and benefits provided by the act, including those relating to promotions. If he is in the unclassified service, as listed in N. J. S. A. 11 :4-4, he is not. See Walsh v. Dept. of Civil Service, 32 N. J. Super. 39, 43 (App. Div. 1954).

Unless members of the State Police are in the unclassified service by virtue of subparagraph (u) of N. J. S. A. 11:4-4, or by any oilier statute, they would have to be in the classified service. It is a fact that they do not come within any of the specific positions listed, and admittedly there has been no administrative determination by the Civil Service Commission that they should be placed in the unclassified service. One must, therefore, look at the statute creating the Division to ascertain whether members of the State Police are in the unclassified service.

Officers and troopers in the Division are appointed and reappointed by the Superintendent. N. J. S. A. 53 :l-8. No person can be appointed a member of the State Police unless he has taken an examination conducted by the Division and established, to the satisfaction of the Superintendent, evidence of his mental and physical fitness and ability to perform the duties of a member of the State Police. N. J. S. A. 53 :l-9. The examination and enlistment of applicants is arranged by the Superintendent, with the approval of the Governor. Ilid. It is a misdemeanor for a person to withdraw voluntarily from the State Police force without the consent of the Superintendent. N. J. S. A. 53 :1 — 11. Although the statute does not explicitly deal with the subject of promotion, it provides, nevertheless, that the rank and grade of any member of the State Police may be changed from time to time, notwithstanding my other provision of law.

It is evident that the structure of the State Police force does not fit within the concept of the Civil Service Act. The officers and men are not subject to any position classification plan approved and published by the Civil Service Commission. There are no provisions for the establishment of employment lists, the testing of applicants, or the filling of vacancies in higher positions under the aegis of the Civil Service Commission. The unique nature of the Division is well described in the case of In re Bernaducci, 85 N. J. Super. 152 (App. Div. 1964) :

Here we deal with the Division of State Police, a state agency (as the Attorney General points out) somewhat akin to a branch of the armed services, in which applicants enlist and agree to be members and abide by the Division regulations and discipline 24 hours a day during their tenure. The Legislature has given the Superintendent, subject only to the approval of the Governor, the right and duty to make all rules and regulations for the discipline and control of the State Police. R. S. 53:1-10 N. J. S. A. The Superintendent has power to appoint troopers and officers and to remove them — all without reference to standards except that removal shall be after charges preferred and a hearing granted. R. S. 53 :l-8. * * * Our examination of the rules and regulations promulgated by the Superintendent fully illustrates the gwai-military nature of the State Police and the absolute discretion delegated to the Superintendent in administering the Division subject only to the Governor’s approval, [at 154-1551

The legislative design to exclude members of the State Police from the classified service of the Civil Service is clear. If the Legislative had intended otherwise, such comprehensive powers would not have been given to the Superintendent of the Division. This conclusion is strengthened by the fact that the State Police statute expressly directs that the “present civilian employees of the State Bureau of Identification shall be placed by the Civil Service Commission in the classified service.” N. J. S. A. 53:1-12. Similar provision is made for civilian cooks and cook’s helpers, N. J. S. A. 53 :l-2á; clerks, bookkeepers, stenographers, telephone operators and other specialists, N. J. S. A. 53:1-25; and teletype operators, N. J. S. A. 53-3-9. The care taken to assure civil service rights for civilian employees emphasizes the deliberate Legislative purpose not to do so in the case of State Police personnel.

It should be noted that the Civil Service Commission considers members of the State Police to be in the unclassified service. See “State of New Jersey Compensation Plan — An Alphabetical Listing of Class Titles and Eanges, June 28, 1969,” at 103. In an affidavit on file in these proceedings, John J. EaTrell, Chief Examiner and Secretary of the New Jersey State Civil Service Commission, states that for many years

* * * the Division of State Police uniform personnel have been listed in the unclassified service. In addition, the original entrance examination for uniform personnel is not conducted by the Civil Service Commission nor are any of these Civil Service rules and regulations binding upon uniform personnel in that they are and have been in the unclassified service.

Mr. Farrell’s comments, of course, are not conclusive. But his apparent interpretation of the statute, coupled with the implicit recognition in the state compensation plan that members of the State Police are in the unclassified service, should not be brushed aside. A long-continued practical interpretation given by an agency to the statute which it is required to administer, is entitled to considerable weight in determining the legislative intent. In re Gillmore, 101 N. J. Super. 77, 85 (App. Div. 1968).

It is the conclusion of the court that members of the State Police are in the unclassified service; consequently they are not entitled to have vacancies in higher ranks filled by competitive promotional examinations. The result reached is buttressed by the recent case of Atlantic Community College v. Civil Service Comm'n, 59 N. J. 102 (1971), in which our Supreme Court dealt with the issue of whether nonprofessional and noninstructional employees of county community colleges in counties that have adopted civil service are subject to the Civil Service Law. The Civil Service Commission had ruled that such employees were subject to the law, and it now argued, among other things, that “the Legislature has not spoken on the subject and that the County College Law is silent on the question of whether Civil Service applies to the employees of county colleges.” The court rejected the argument and held that although there was no specific mention of Civil Service in the law governing county colleges, “the statute dealing with the employees involved is wholly incompatible with Civil Service and shows a legislative intent to preclude application of Title 11.” The statute, the court noted, gave the college board of trustees power to appoint such employees and fix and determine their qualifications, duties, compensation, terms of office and all other conditions and terms of employment and retention. The court said that these are the very subjects with which Civil Service deals and are in direct conflict with the powers granted to the Civil Service Commission. The court stated further:

It is impossible to reconcile these Civil Service powers granted to the Civil Service Commission with the powers granted to the board of trustees in N. J. S. A. 18A:64A-12(g). If the Legislature had intended the nonprofessional and noninstructional employees of county colleges to be under Civil Service, we are convinced it would not have given to the college board of trustees such comprehensive powers over its personnel. Since the County College Law was enacted subsequent to the Civil Service Law and is in conflict with it, we can only conclude that the Legislature meant to exclude county college employees from Civil Service. See State v. Parking Authority of the City of Trenton, supra, 29 N. J. Super. 335, at 339. That the Legislature did not specifically mention Title 11 in the County College Law can hardly be deemed silence on the subject in view of the broad powers granted to the board of trustees under subsection (g).
We regard the legislative intent manifested in the County College Law as conclusive of this case. This is so regardless of whether a county college is an agency of the county or not. While we do not believe it is, we see no reason why the Legislature cannot exempt parts of county government if it so chooses. Despite respondent’s suggestion to the contrary, there is nothing in our Constitution which prohibits the Legislature from so acting.

The rationale of the foregoing decision is applicable to the ease now before the court.

Judgment will be entered dismissing the complaint.


author: Doan, J. C. C.

text:
    ELVERA LAMENDOLA AND ALPHONSE LAMENDOLA, HER HUSBAND, PLAINTIFFS, v. LUCIUS W. MIZELL ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 2, 1971.

      Mr. Bruno L. Leopizzi argued the motion for plaintiffs (Mr. Bruno L. Leopizzi and Mr. Carmen A. Ferrante, attorneys; Mr. Donald G. Collester, Jr., on the brief).

      Mr. Wood M. DeYoe argued the motion for defendant Lucius W. Mizell (Messrs. DeYoe, DeYoe & Guiney, attorneys) .

      Mr. Carroll A. Morley argued the motion for defendant General Motors Corporation (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys; Mr. William J. Cleary, Jr., on the brief).

      Mr. Peter G. Alexis argued the motion for defendant Cerami Pontiac (Messrs. Aljian & Alexis, attorneys).
   Doan, J. C. C.

(temporarily assigned). This matter is before the court on motion of two of the defendants for judgment notwithstanding the verdict, or in the alternative, for a new trial, and on motion of the third-defendant addressed to the excessiveness of the verdict in favor of plaintiff Alphonse Lamendola.

After a five-day trial the jury returned verdicts in the amounts of $100,000 and $50,000 for plaintiffs Elvera Lamendola and her husband Alphonse, respectively. The damages were assessed against all defendants, Lucius Mizell, Cerami Pontiac and General Motors Corporation, upon findings of negligence of Mizell and of breach of warranty (“products liability”) of Cerami and General Motors.

Evidence uneontroverted at trial showed that defendant Mizell had purchased a new 1966 Grand Prix Pontiac from Cerami. On December 4, 1965, the date of delivery, with approximately eight miles registered on the odometer, the Mizell vehicle went out of control and struck plaintiffs’ automobile head on in the lane in which the latter was travelling. It appeared further from the proofs that the Mizell vehicle went out of control due to an accelerator pedal which, when depressed, stuck and stayed down on the floor of that car; it was claimed that the linkage bound, most likely at the bell crank. There was controversy as to whether the vehicle lurched forward from a parked position or was intentionally accelerated by Mizell, but it was clear that the car travelled some 340 feet before striking the Lamendola vehicle travel-ling in the opposite direction.

I

Defendants urge the inconsistency of the companion verdicts of products liability against General Motors and Cerami Pontiac with the verdict of negligence against Mizell, the driver of the vehicle.

Initially it should be remarked that the legal theories of products liability and negligence are not mutually repulsive; each arises from a misfeasance or nonfeasance in violation of a legal duty. Eurthermore, a tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence, and it is generally sufficient if his negligent conduct was a “substantial factor” in bringing about the injuries. Rappaport v. Nichols, 31 N. J. 188, 203 (1959). See also: Restatement, Torts 2d, §§ 431, 432. It is the rule in New Jersey that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof although the act of a third person may have contributed to the final result. Menth v. Breeze Corporation, Inc., 4 N. J. 428 (1950). The above rules are eminently applicable here. Clearly, defective manufacture and negligence are implicit in the verdicts. Upon any of the theories presented in the factual pattern it cannot be said that the verdicts are, by their nature, inherently inconsistent. In the final analysis it is solely the function of the jury to determine whether each defendant’s actions were substantial factors in causing the plaintiffs’ injuries. Brower v. N. Y. C. & H. R. R. R. Co., 91 N. J. L. 190 (E. & A. 1917), and their determinations will not herein be disturbed.

II

The absence of privity between plaintiffs and defendants General Motors and Cerami Pontiac presents an issue foursquare for determination, namely, whether an “innocent bystander,” injured by a defective product in the hands of the consumer or user, can maintain an action against the manufacturer and seller on the theory of strict liability in tort? This question has not, to the present time, been resolved by the courts of this jurisdiction, and the language of the Supreme Court in Courtois v. General Motors Corporation, 37 N. J. 525 (1962), indicates that determination of this issue has been specifically reserved. However, the direction of the law of products liability in this jurisdiction has become quite clear from the thrust of two recent decisions :

Cintrone v. Hertz Truck Leasing, etc., 45 N. J. 434 (1965), held that a warranty for fitness extends beyond the pure “sales” relationship and could properly constitute the basis for recovery by the injured employee of a bailee for hire.

Rosenau v. New Brunswick and Gamon Meter Co., 51 N. J. 130 (1968), held that recovery for property damages sustained as a result of a defective water meter, installed some 14 years prior to the incident by the municipality, was proper under the theory of products liability although there was no indication of “sale” of privity between the manufacturer and the plaintiff home-owner.

Yet, considering the foregoing, upon what legal foundation is this court prepared to rule on a matter presently undecided in this jurisdiction? Section 402A of the Restatement, Torts 2d, offers no direction, despite the fact that its rule has been adopted verbatim in New Jersey as the basis for actions sounding in strict liability in tort. Section 402A speaks in terms of applicability to “users and consumers”, and, although these terms appear to be self-limiting, the caveat to this section declares, “The Institute expresses no opinion as to whether the rule stated in this section may not apply (1) to harm to persons other than users or consumers * *

Until recently, the numerous jurisdictions that have denied recovery to those not evincing some degree of privity with the manufacturer or seller have done so as a result of apparent confusion with the dual concepts of “implied warranty,” one theory sounding in tort (products liability or strict liability in tort) and the other designated by the Uniform Commercial Code and guided by the law of contracts. Inherent in the confusion or caution is an abiding concern that products liability, if unchecked, would result in liability without fault as this concept would apply to the duty owed by a manufacturer to the public-at-large. Cf. Hahn v. Ford Motor Co., 256 Iowa 27, 126 N. W. 2d 350 (Sup. Ct. 1964); Berzon v. Don Allen Motors, 23 App. Div. 2d 530, 256 N. Y. S. 2d 643 (App. Div. 1965); Davidson v. Leadingham, 294 F. Supp. 155 (D. C. Ky. 1968). Other courts, struggling with the concept embodied in section 402A of the Restatement, have engaged in legal gymnastics to find the plaintiff to be a “user or consumer” and thus within the purview of that section. Cottom v. McGuire Funeral Service, 262 A. 2d 807 (D. C. App. 1970).

However, New Jersey, long in the vanguard of products liability since Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960), has contributed to the recognition and careful application of the inherent distinctions between the two warranty theories. In Rosenau, supra, our Supreme Court cited with approval the discussion by Dean Prosser in his article, “Spectacular Change: Products Liability in General,” 36 Cleve. B. A. J. 149 (1965) :

It has been said over and over again that this warranty — if that is the name for it — is not the old sales warranty, it is not the warranty covered by the Uniform Sales Act or the Uniform Commercial Code. It is not a warranty of the seller to the buyer at all, but it is something separate and distinct which sounds in tort exclusively, and not at all in contract; which exists apart from any contract between the parties; and which makes for strict liability in tort. [51 N. J., at 141]

It follows, then, that auy analysis of the application of products liability theory to innocent bystanders must at once be free from tbe limitations inherent in the field of contracts, and thus it becomes an issue of public policy, bolstered by logically sound legal reasoning, to determine how far this concept shall be advanced. Most recently eight cases have been reported which have unequivocally applied the theory of strict liability to innocent bystanders, thereby repudiating any privity requirement: Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N. W. 2d 129 (Sup. Ct. 1965); Mitchell v. Miller, 26 Conn. Super. 142, 214 A. 2d 694 (Super. Ct. 1965); Elmore v. American Motors Corp., 70 Cal. 2d 578, 451 P. 2d 84 (Sup. Ct. 1969); Sills v. MasseyFerguson, Inc., 296 F. Supp. 776 (D. C. Ind. 1969); Darryl v. Ford Motor Co., 440 S. W. 2d 630 (Tex. Sup. Ct. 1969); Preissman v. Ford Motor Co., 1 Cal. App. 3d 841, 82 Cal. Rptr. 108 (D. Ct. App. 1969); Caruth v. Mariani, 11 Ariz. App. 188, 463 P. 2d 83 (Ct. App. 1970), and Wasik v. Borg, 423 F. 2d 44 (2 Cir. 1970).

In Piercefield, the landmark case in this area., the Michigan Supreme Court allowed plaintiff to recover against the manufacturer of a rifle for injuries incurred when the shotgun which plaintiff’s brother was firing exploded due to a defect of construction in the barrel.

In Mitchell, decided by the Connecticut court shortly after Piercefield was published, plaintiff’s decedent was fatally injured on a golf course when the automobile which one defendant had parked on an incline slipped out of "Parle” and rolled down the hill. Defendant manufacturer’s demurrer to the complaint was overruled.

Elmore v. American Motors Corp. was an almost inevitable decision, since the California courts in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P. 2d 897 and Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 37 Cal. Rptr. 896, 391 P. 2d 168 modified the language of section 402A insofar as it was to apply in California to include all “human beings” rather than the limitation of "users and consumers.” Thus, in Elmore a defective drive shaft, which caused an automobile to veer out of control and to fatally injure plaintiff’s decedent in the struck vehicle, gave rise to a cause of action against the manufacturer for products liability. The same result was reached in another California ease, Preissman v. Ford Motor Co., where a parked car slipped out of parking gear and rolled, striking a minor and causing the loss of his left leg.

In Garuth the result of the appeal upon initial consideration by the Arizona court (reported in 10 Ariz. App. 277, 458 P. 2d 371) was overturned upon rehearing. In Garuth, as in Darryl, 'Supra, plaintiff was injured when his vehicle was struck in the rear by another vehicle out of control, this time due to a defect in the brakes.

Wasik v. Borg and Sills v. Massey-Ferguson, Inc., were heard in the federal district courts where, in diversity actions, the courts were called upon to apply Vermont and Indiana law, respectively. The decisions rested upon the determinations that both states would favor recovery by bystanders against manufacturers on the theory of products liability, although the state courts had yet to pass upon this question directly.

We see by all of the foregoing that there is ample precedent in other jurisdictions for the extension of protection to the casual or innocent bystander. Most persuasive is the language of the California court in Elmore:

It has been pointed out that an injury to a bystander “is often a perfectly foreseeable risk of the maker’s enterprise, and the considerations for imposing such risks on the maker without regard to his fault do not stop with those who undertake to use the chattel. [A restriction on the recovery by bystanders] is only the distorted shadow of a vanishing privity which is itself a reflection of the habit of viewing the problem as a commercial one between traders, rather than as part of the accident problem.” [2 Harper and James, The Law of Torts (1956), 1572, fn. 6]
If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable. Consumers and users, at least, have the opportunity to inspect for defects and to limit their purchases to articles manufactured by reputable manufacturers and sold by reputable retailers, whereas the bystander ordinarily has no such opportunities. In short, the bystander is in greater need of protection from defective products which are dangerous, and if any distinction should be made between bystanders and users, it should be made, contrary to the position of defendants, to extend greater liability in favor of the bystanders. [451 P. 2d at 89; emphasis added.]

It is this language, and the inherent good sense which gives it life, that renders all arguments to the contrary mere vapid, shallow breaths. In this age of sweeping social awareness and the attendant legal revolution, the concept of affording redress to bystanders on the basis of prodnets liability is movement in an inevitable direction. Yet, in Henningsen, our signal case, language can be found which serves as the clarion call for what we find today:

In the 44 years that have intervened since that utterance (MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050), the average car has been constructed for almost double the speed mentioned; 60 miles per hour is permitted on our parkways. The number of automobiles in use has multiplied many times and the hazard to the user and the public has increased proportionately. The Legislature has intervened in the public interest, not only to regulate the maimer of operation on the highway but also to require periodic inspection of motor vehicles and to impose a duty on manufacturers to adopt certain safety devices and methods in their construction. R. S. 39:3-43 et seq. It is apparent that the public has an interest not only in the safe manufacture of automobiles, but also, as shown by the Hales Act, in protecting the rights and remedies of purchasers, so far as it can be accomplished consistently with our system of free enterprise. In a society such as ours, where the automobile is a common and necessary adjunct of daily life, and where its use is so fraught with danger to the driver, passengers and the public, the manufacturer is under a special obligation in connection with the construction, promotion and sale of his cars. * * * [32 N. J. at 387; emphasis added]

In discussing the Henningsen case Justice Black of the Michigan Supreme Court commented in Piercefield, supra:

* * * Would anyone, having read the court’s exhaustive opinion, expect a result reasoned differently had, say, the plaintiff been a pedestrian who, when the Henningsen car “veered sharply to the right and crashed into a highway sign and a brick wall,” suffered crushed legs as the car struck the wall * * * ? [133 N. W. 2d at 135]

The public policy enunciated in Henwingsen, however, is not a shield against reason and prudence, and the great body of the common law that has served us so well to this point in time is the amalgamation of all three influences. So it is that we must temper reason and prudence to cut a line of restraint, lest we abandon all that has gone before.

By discharging all concepts of privity in actions such as the one at bar, we must guard against discharging restraint as well. Such restraint is of the kind and character found in the dominion of negligence, namely, the foreseeability of the injury as a result of the defect. Mitchell v. Miller and Elmore v. American Motors Corp., supra. See also, Santor v. A. & M. Karagheusian, 44 N. J. 52 (1965). But the limitations inherent in the concept of foreseeability, insofar as it applies to legal responsibility and the facts of the instant ease, offer no salve for defendants’ wounds. An automobile manufacturer, producing millions of vehicles a year, offers them for sale to the public ultimately for daily use on the countless thoroughfares of this nation. It is, therefore, well within the realm of foreseeability that a pedestrian or other traveller lawfully upon the road will be injured due to a defect in a vehicle that in some way inhibits or forecloses its control by the driver. This, then, is our holding today, a response to the simple and compelling case presented for determination. Thus, strict liability in tort, insofar as it applies to bystanders, provides a legal remedy where legal responsibility is properly placed.

Ill

Plaintiffs’ departure from two pretrial orders which appear to limit the scope of the hypothetical question propounded to plaintiffs’ expert at the time of trial is further assigned as error. The pretrial orders in question sought to narrow the scope of the hypothetical by requiring in writing and in advance of trial the specific facts upon which said hypothetical would be based, along with the proposed answer of the expert.

There is little doubt that the pretrial orders became law for the purposes of this trial, and material deviation therefrom could be prejudicial to the party in whose favor the orders were drawn. However, in construing the spirit as well as the letter of the orders, it becomes evident that they were drawn with Evidence Buie 56(2) in mind. That rule provides that a hypothetical question propounded at trial be restricted to evidence adduced during the course of that trial. The limited depth of the restriction was also borne out in the fact that the words “and limited to,” which preceded the mandate of the orders, were stricken by the judge who signed them. There was no evidence of bad faith on the part of plaintiffs, nor can it be said that the slight departure in the hypothetical question constituted surprise to the defendants. The latters’ experts were seated in the courtroom at the time the hypothetical was asked, knew exactly the nature of the defect claimed, and counsel for defendant General Motors thereafter engaged in vigorous cross-examination of plaintiffs’ expert. It is therefore concluded that the thrust of the pretrial orders was not intended to compulsorily restrict the use of the hypothetical question, and the reasonable deviation therefrom did not constitute surprise, prejudice or disadvantage to defendants.

IV

Defendants allege prejudice in the exposure to the jury of numerous color slides depicting Mrs. Lamendola in the hospital after the accident, and the unidentified bell crank produced by plaintiffs’ attorney and snapped into two pieces by him during cross-examination of a defense witness. The fact that neither the slides nor the bell crank were offered into evidence at the trial should not preclude the application of Evidence Buie 4 and its attendant principles discussed in Stoelting v. Hauck, 32 N. J. 87 (1960). The color slides present a problem similar to that found in Jastremski v. General Motors Corp., 109 N. J. Super. 31 (App. Div. 1970), and Gambrell v. Zengel, 110 N. J. Super. 377 (App. Div. 1970). Both cases held that the admission of such matters was discretionary with the trial judge. The relevance of the injuries to Mrs. Lamendola as depicted in the slides was manifestly relevant to the issue of damages.

The same principle could be said to apply to the incident concerning the bell crank. It cannot be said that such was prejudicial to defendants, either from a quantitative assessment of the time consumed or from the qualitative nature of the display.

V

Defendants charge error in the usage of “breach of warranty” terminology in the jury instructions, in place of the term “strict liability in tort.” It is settled beyond discussion that the two phrases are synonymous in concept when applied to situations described by facts such as those found in the instant case. The rule is well established that, so long as the law is stated correctly and intelligently, the ultimate test of the soundness of the instructions is not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole. Kargman v. Carlo, 85 N. J. L. 632 (E. & A. 1914); Vadurro v. Yellow Cab Co. of Camden, 6 N. J. 102 (1950).

It cannot be said that under the circumstances the charge contained clear error worthy of a new trial.

VI

The motions for judgment notwithstanding the verdict (R. R. 4:49-1 (a)) are circumscribed by the principles ■discussed -in. Dolson v. Anastasia, 55 N. J. 2 (1969). In the present case there are numerous theories upon which the jury could have rested its determination, but it is not within the province of the trial judge to speculate upon the course of deliberations within the confines of the jury room; rather, it is incumbent upon the court merely to determine whether, as a matter of law, any one possible theory of liability is substantiated by the evidence taken as a whole in order to support the verdict. Smith v. Lorillard Co., 67 N. J. L. 361 (Sup. Ct. 1902). The circumstantial quality of the proof of defect is sufficient to support the verdicts against General Motors and Cerami Pontiac. Cf. Henningsen v. Bloomfield Motors Inc., 32 N. J. 358 (1960); Cintrone v. Hertz Truck Leasing, etc., 45 N. J. 434 (1965); Sabloff v. Yamaha Motor Co., 113 N. J. Super. 279 (App. Div. 1971). And the quality of the circumstantial evidence adduced at trial went beyond the “surmise or conjecture” problem confronting the court in Jakubowski v. Minnesota Mining and Manufacturing Co., 42 N. J. 177 (1964). It cannot, therefore, be said that the verdicts were the result of mistake, passion, prejudice or partiality, nor was there a miscarriage of justice under the law.

VII

Lastly, the claim that the verdict in favor of Alphonse Lamendola is excessive is not supported by the proofs. The evidence at the trial was ample to justify the amount of the award.

Accordingly, the several motions of the defendants for judgment notwithstanding the verdicts, or, in the alternative, for a new trial, or for reduction of the verdict of Alphonse Lamendola be and each of them are denied.

      “One who sells any product of a defective condition unreasonably dangerous to the user or consumer or to this property is subject to liability for the physical harm thereby caused to the ultimate user or consumer *


author: Ackerman, J. S. C.

text:
    NATIONAL SURETY COMPANY, A CORPORATION, PLAINTIFF, v. ALLSTATE INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 23, 1971.

      Mr. Leonard Rosenstein for plaintiff (Messrs. Feuerstein, Sachs & Maitlin, attorneys).

      Mr. John L. McDermott for defendant (Messrs. Gaffey, Webb & McDermott, attorneys).
   Ackerman, J. S. C.

This action, tried by the court without a jury, involves the construction and interpretation of an exclusionary clause in a liability insurance policy which, surprisingly enough, has been the subject of very little direct consideration in the reported authorities in cases involving similar facts.

The proofs may be summarized as follows: T. I. McCormick Trucking Co., Inc. (McCormick) is engaged in the trucking business, carrying cargoes which consist principally of vegetable oils, chemicals, liquid sugar, and molasses. At all times pertinent it was the named insured in a comprehensive liability policy issued by Allstate Insurance Company and in a motor truck cargo policy (denominated “named perils form”) issued by a subsidiary of Rational Surety Company. Rational Sugar Refining Co. (Rational Sugar) of Philadelphia consigned two loads of liquid sugar to Pepsi Cola Bottling Co. (Pepsi) at Baltimore and contracted with McCormick to transport and deliver the same. McCormick furnished two tractors and two tank trailers for that purpose, together with a hose and pump for use in loading and unloading the sugar. Part of this equipment, including the hose and pump, had been used on the previous day by McCormick to deliver lard to another consignee. After the sugar had been unloaded at its plant, Pepsi claimed that it had been contaminated by a fatty substance, and it made claim against Rational Sugar to recoup the sum of $9,649.35 it had paid for the sugar. Rational Sugar paid that sum to Pepsi and then instituted suit in the Superior Court against McCormick, claiming that the sugar had been contaminated by lard, either during the course of carriage or during loading or unloading, because of McCormick’s negligence in failing to clean its equipment. McCormick thereupon called upon Allstate to defend the suit against it and to pay any loss, but Allstate declined to do so, claiming that coverage was excluded under the terms of its policy. Rational Surety then stepped in to defend the action and eventually effected a settlement before trial, paying the sum of $3,500 .to Rational Sugar. It took an assignment from McCormick of its rights against Allstate and instituted this suit against Allstate to recover the cost of the investigation and legal defense it had provided to McCormick in the Superior Court action and to recover the amount of the settlement paid to Rational Sugar.

Allstate has pleaded and relied upon a number of defenses, but the principal one is that the policy which it issued excluded coverage. I find that this defense is a valid one and it is dispositive of the controversy.

The comprehensive liability policy issued by Allstate provided three basic coverages, denominated in the declarations in the policy as “A. Bodily Injury Liability.” “B. Property Damage Liability — Automobile,” and “C. Property Damage Liability — Except Automobile.” In the insuring agreements, Coverage B and Coverage C were described as follows:

Allstate Insurance Company * • * ********
Agrees with the insured, named in the declarations made a part hereof, in consideration of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:
INSURING AGREEMENTS
I. * * *
Coverage B — Property Damage Liability Automobile: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.
Coverage C — Property Damage Liability Except Automobile: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.

The term “automobile,” as defined in the policy, clearly included the tractors and trailers used by McCormick to carry the liquid sugar and, in addition, the policy expressly provided that “use of an automobile includes the loading and unloading thereof.” The policy also provided that Allstate agreed, with Tespeet to such insurance afforded by the policy, to defend any suit against the insured even if such suit were groundless, false or fraudulent. It is therefore conceded that if the suit by National Sugar against McCormick had stated a claim within the coverage afforded by the policy, Allstate would have been obliged to afford a defense. It is also agreed by the parties that coverage, if any, under the policy would come under Coverage B, since the contamination, if caused by McCormick, of necessity occurred during actual carriage or during the process of loading or unloading, and therefore arose out of the ownership, maintenance or use of an automobile as defined in the policy. See Cenno v. W. Virginia Paper & Pulp Co., 109 N. J. Super. 41 (App. Div. 1970), certif. den. 56 N. J. 99 (1970); Drew Chem. Corp. v. Amer. Fore Loyalty Group, etc., 90 N. J. Super. 582 (App. Div. 1966); Annotation, “Risks within loading and unloading5 clause of motor vehicle liability insurance policy," 95 A. L. R. 2d 1122 (1964).

National Surety, relying on the above authorities and the express provision of the policy that use of an automobile includes the loading-unloading process and arguing that the policy should be liberally construed in favor of coverage, claims that there is no doubt that the Allstate policy covvered the operation out of which the loss allegedly occurred. The argument is sound enough so far as it goes, but it completely ignores the effect of the exclusions to the policy. There are 11 exclusionary clauses, grouped under the heading “Exclusions,55 which followed immediately after the coverage clauses contained under the heading “Insurance Agreements.55 The exclusion relied upon by Allstate, the proper construction of which goes to the heart of this lawsuit, provides among other things that the policy does not apply, under Coverage B, to damage to property “transported55 by the insured. It reads as follows:

This policy-shall not apply:
Sts * ' sis SjS> * * * *
(h) Under Coverage B, to injury or destruction of property owned or transported by the insured, or property rented to or in charge of the insured other than a residence or private garage injured or destroyed by a private passenger automobile covered by this policy; * £ *

There was also an exclusion which specifically excluded from Coverage C any property in the “care, custody or control55 of the insured, or over which it for any purpose was .“exercising physical control.55 The text of that exclusion is that the policy does not apply:

(j) Under Coverage C, to injury to or destruction of (1) property owned or occupied by or rented to the insured, or (2) * * * property used by the insured, or (3) * * * property in, the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, or (4) any goods, products, or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises; * * *.

The precise question is, what is the meaning of property “owned or transported” by the insured or “in charge of” insured, within the meaning of exclusion (h).

In construing a liability policy of this kind, one starts out with certain well settled guidelines for construction laid down by our Supreme Court. Exclusionary clauses are strictly construed against the insurance company and the trial court is enjoined, among other things, to consider whether there are judicial precedents which give a broader meaning to the language used in the policy than that contended for by the insurer. The rule is stated in Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1 (1961), as follows:

Solution of a problem of construction of an insurance policy must be approached with a well settled doctrine in mind. If the controlling language will support two meanings, one favorable to the insurer, and the other favorable to the insured, the interpretation sustaining coverage must be applied. Courts are bound to protect the insured to the full extent that any fair interpretation will allow. Kievit v. Loyal Protective Life Ins. Co., etc., 34 N. J. 475 (1961). Moreover, in evaluating the insurer’s claim as to the meaning of the language under study, courts necessarily consider whether alternative or more precise language, if used, would have put the matter beyond reasonable question; also whether judicial decisions appear in the reports attributing a more comprehensive significance to it than that contended for by the insurer. Mahon v. American Cas. Co. of Reading, Pennsylvania, 65 N. J. Super. 148 (App. Div. 1961). Insurance contracts are unipartite in character. They are prepared by the company’s experts, men learned in the law of insurance who serve its interest in exercising their draftmanship art. The result of their effort is given to the insured in printed form upon the payment of Ms premium. The circumstances long ago fathered the principle that doubts as to the existence of coverage must be resolved in favor of the insured. Barker v. Iowa Mut. Ins. Co., 241 N. C. 397, 85 S. E. 2d 305 (Sup. Ct. 1955).
These general rules of construction have spawned a number of subsidiary ones of equally universal recognition. For example, where the policy provision under examination relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is taken of the coverage extended. But, if the clause in question is one of exclusion or exception, designed to limit the protection, a strict interpretation is applied. Cal-Farm Ins. Co. v. Boisseranc, 151 Cal. App. 2d 775, 312 P. 2d 401, 405 (D. C. App. 1957). [at 7-8]

See also Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504, 513-514 (1965).

It is also the rule that when members of the public purchase policies of insurance, they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. They are not to he subjected to technical encumbrances or hidden pitfalls, and their policies are to be construed liberally to the end that coverage is afforded to the full extent that any fair interpretation will allow. Kievit v. Loyal Protect. Life Ins. Co., 34 N. J. 475, 482 (1961); Gerhardt v. Continental Ins. Cos., 48 N. J. 291 (1966).

It is, nevertheless, well settled that an insurance policy is not ambiguous simply because it is complex and difficult to read. Liability policies are of necessity frequently complicated, and the wide variety of risks and hazards which may be covered or excluded has led to the development of a policy form which consists of a basic document which is modified and tailored by exclusions and endorsements to limit or enlarge the scope of coverage to conform to precise underwriting requirements. See Bryan Const. Co. v. Employers’ Surplus Lines Ins. Co., 110 N. J. Super. 181 (Ch. Div. 1970). Exclusions which are clear and unambiguous will be enforced, and rules of liberal construction do not authorize a perversion of language or the exercise of inventive powers to create ambiguities where they do not fairly exist. James v. Federal Insurance Co., 5 N. J. 21, 24 (1950); Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N. J. 511, 524 (1963); see Boswell v. Travelers Indemnity Co., 38 N. J. Super. 599, 604. et seq. (App. Div. 1956); see American Legion, etc., Hospital v. St. Paul Fire & Marine Ins. Co., 106 N. J. Super. 393, 397 (App. Div. 1969).

What is the result here when these rules of construction are applied?

In the first place, on the facts of this case the language of exclusion (h), without resorting to precise dictionary definitions or judicial precedents construing it, seems clear and unambiguous and it does not serve to unfairly deprive the insured of coverage which it might reasonably have thought it had. Coverage is excluded of property “owned or transported” by the insured or property “in charge of” the insured. Even the ordinary owner of an automobile knows the difference between automobile liability insurance and collision insurance, and is aware of the fact that normally a liability policy does not cover damage to his own car or property. If he wants collision insurance to cover damage to property owned by him, he knows he must pay an additional premium for it, and he cannot assert that he had a reasonable expectation that, simply because he had a liability policy, he had coverage for his own property. The exclusion of property “owned” is therefore not ambiguous here and McCormick, which is not an unsophisticated owner of a pleasure car but is a business corporation engaged in transporting cargo for hire by motor vehicle, could certainly not claim that it had any doubt about the fact that its own tractors and trailers were not covered.

The same applies to property “transported” by the insured. It is true that, as stated in Cindrich v. Fireman’s Fund Ins. Co., 6 Ariz. App. 371, 432 P. 2d 919, 920 (Ct. App. 1967), where a similar exclusion was held not ambiguous, “There are no words, with the possible exception of mathematical terms, which are not ambiguous when applied to particular fact situations. The word 'red’ becomes ambiguous when applied to some shades.” Although in some contexts the exclusion of property “transported” by the insured may be ambiguous and unclear of meaning, that is not so here, and the ordinary layman would have .no difficulty in' concluding that one engaged in the business of carrying cargo for hire is “transporting” that cargo. Moreover, the ordinary carrier of cargo for hire knows that sizeable and repeated risks of damage to such cargo occur when it is carried, and that, if his liability for damage to that cargo is to be covered, he must get cargo insurance and not simply rely on ordinary comprehensive liability or automobile liability' policies for coverage. Indeed, McCormick did have a separate cargo policy, and although National Surety claimed that, because of its terms, the cargo policy did not cover the loss, that circumstance does not bear upon the construction of the Allstate policy.

The same also applies to the meaning of property “in charge of” the insured. Although, as applied to some fact situations, the words may be of doubtful meaning, to the ordinary layman one is “in charge of” personal property when he has possession of it, has the right to exercise dominion and control over it, and is actually exercising physical control over it. One engaged in carrying or transporting cargo in a vehicle is certainly “in charge of” said cargo within the plain meaning of the words.

The ordinary meaning of the words used in the exclusionary clause, therefore, does not give rise to doubts as to its application in this case to exclude coverage.

This construction is not changed when, in accordance with the test laid down in Mazzilli, supra, resort is had to reported judicial decisions to ascertain whether they limit the exclusionary clause to a meaning less broad than that contended for by the insurer. One would expect that there would be an abundance of authorities dealing with the meaning of “transported” as used in an exclusion in a liability policy, but there are no New Jersey cases construing such exclusion, and the attorneys for the parties advised that they had been unable to find any reported cases precisely in point dealing with damage to cargo which involved interpretation of the words “transported” or “in charge of” in such an exclusion clause. However, although few in number, there are such cases in other jurisdictions and there are additional decisions close to the point, including dicta in New Jersey eases, which make it clear that, on the facts of this case, the clause will be given its plain meaning and exclude coverage.

Directly in point with respect to the proper construction of “transported” is Travelers Ins. Co. v. Wright, 309 Ky. 158, 216 S. W. 2d 909 (Ct. App. 1949). There a truckload of cream being carried for the owner by a trucker was destroyed in an accident due to the negligence of the trucker. It was held that the cream was property being “transported” by the trucker within the meaning of an exclusion in the trucker’s automobile liability policy which provided that it did not apply to “injury or destruction of property owned by, rented to, in charge of or transported by the insured.” A similar result was reached in the recent case of Lakatos v. Prudence Mut. Cas. Co., 113 Ill. App. 2d 310, 252 N. E. 2d 123 (Ct. App. 1969), stated by the court to be a case of first impression in Illinois. There it was held that personal property of others being carried in a passenger vehicle of the insured constituted propertjr being “transported” by the insured within the meaning of an exclusion in an automobile policy exactly like exclusion (h) here involved. The court held that the language of the clause was clear and unambiguous and that the words should be given their ordinary meaning.

There are also several cases directly in point which bear upon the meaning of property “in charge of” the insured in an exclusionary clause, as it applies to property of others being carried or conveyed by the insured in or by a motor vehicle. In Aetna Cas. & Sur. Co. v. Patton, 247 Ky. 370, 57 S. W. 2d 32 (Ct. App. 1933), it was held that a load of tobacco belonging to others being conveyed in a truck of the insured, who was engaged in the tobacco warehouse business, was property in the custody of the insured and that liability for damage thereof was excluded by the clause in the insured’s liability policy which provided that it did not apply to “property of the assured or property in the custody of assured * * * or property carried in or upon any automobile of the assured.” In Clark Motor Co. v. United Pacific Ins. Co., 172 Or. 145, 139 P. 2d 570 (Sup. Ct. 1943), a disabled vehicle was being towed by a wrecker owned by an insured engaged in the business of operating a public garage. While the insured was towing the car on a highway it was negligently overturned and damaged. It was held that the damage to the car was not covered by the insured’s liability policy because of an exclusion clause which provided that the policy did not apply to “property owned by, rented to, in charge of, or transported by the insured.” The insurance company had disclaimed liability on the ground that the damaged ear was in charge of and being transported by the insured. The court held:

If we were to look only to the “Insuring Agreements” of the policy, there would be no doubt as to coverage as the automobile “wrecker” at the time of the accident was being used in connection with the operation of the business in which the insured was engaged. However, in construing the policy, we cannot exclude, from consideration the plain and unambiguous language of the exclusion clause. There may be some question as to whether the towing of the car was “transportation” within the meaning of the policy, but we think there can be no doubt that at the time Haliock’s car was damaged it was “in charge of” the assured and therefore not covered by the policy. [139 p. 2d at 572; citations omitted]

The same result was reached in State Farm Mutual Auto. Ins. Co. v. Dorough, 277 Ala. 662, 174 So. 2d 303 (Sup. Ct. 1965). There a boat and trailer belonging to others were being towed by the insured’s truck when an accident occurred due to the insured’s negligence. It was held that liability was excluded by a clause in the insured’s policy identical to exclusion (h) here involved. The court ruled:

We feel that while the boat and trailer were thus attached to the truck the boat and trailer were “in charge of” the driver of the insured vehicle and therefore the insured would come within the exclusion of this policy. [.Citations omitted.]
Having determined that the situation in the case at bar falls within the exclusion of the liability policy above discussed, under coverage B, it results that it is unnecessary for a decision in this case to determine whether the boat and trailer were “transported by the insured.” [174 So. 2d at 305]

Other decisions are helpful. See the following cases which deal with the meaning of property “transported” by or “in charge of” insured: Arditi v. Massachusetts Bonding & Ins. Co., 315 S. W. 2d 736, 742 (Mo. Sup. Ct. 1958); Hine v. American Mutual Liability Ins. Co., 20 Conn. Sup. 455, 139 A. 2d 500 (C. P. 1958); cf. Fish v. Nationwide Mutual Ins. Co., 126 Vt. 487, 236 A. 2d 648 (Sup. Ct. 1967). The following cases bear upon the meaning of property “in charge of” insured: Cohen & Powell, Inc. v. Great American Indemnity Co., 127 Conn. 257, 16 A. 2d 354 (Sup. Ct. Err. 1940); National Union Ins. Co. of Pittsburgh, Pa. v. Inland Crude, Inc., 433 F. 2d 584 (10 Cir. 1970); Moore v. M. F. A. Mutual Insurance Co., 422 S. W. 2d 357 (Mo. Ct. App. 1967); State Automobile Mut. Ins. Co. v. Connable-Joest, Inc., 174 Tenn. 377, 125 S. W. 2d 490 (Sup. Ct. 1939). See also 13 Couch, Insurance 2d §§ 45 :946, 45 :949 (1965); 7 Appleman, Insurance Law and Practice, § 4328 (1942) and 1970 pocket part; Annotation, “Scope of provision of automobile liability insurance policy excluding liability for damage to property in charge of insured, or variation of such provision,” 10 A. L. R. 3d 515 (1966). The latter annotation summarizes the “in charge of” cases as follows:

In eases where the courts apply the “in charge of” exclusion and uphold the position of the insurance company in denying coverage, the common factor seems to be that the person responsible for the damage to tiie property was using the property with the permission of the owner, and had some right or authority to exercise dominion or control over the property. It is also to be noted that these courts apparently find that the language of the exclusion is plain and unambiguous, although this is not spelled out in all of the decisions, and apply the exclusion in the normal and usual sense of the language to the particular facts of the case, [at 516]

J Also in point are cases construing clauses in liability policies excluding coverage for damage to property in tbe “care, custody or control” of tbe insured, or property over which the insured is “exercising physical control.” This language appears in the Allstate policy as exclusion (j), limiting Coverage C quoted above. Although it may be ambiguous in some situations, it has been held in cases involving personal property, and specifically in the few cases dealing with damage to cargo being carried, that the language is clear and unambiguous and has the same meaning in such cases as property “transported” or “in charge of” the insured.

Thus in Brunson v. Iowa Home Mutual Cas. Co., 224 F. Supp. 592 (S. D. Ala. 1963), a stevedoring company, which was the insured in a comprehensive general - automobile liability policy, entered into a contract with a chemical company to unload sulphur from barges owned by another and to transport the sulphur by truck to the chemical company’s plant. A barge sank because of the negligence of the stevedoring company and it was sued by the owner of the barge for damage to the barge and by the chemical company for the loss of the sulphur. It was held that the stevedoring company had care, custody and control of both the barge and the sulphur while it was in the process of discharging the same and that its liability was excluded by a “care, custody and control” clause, numbered exclusion (j), which was identical to exclusion (j) in the policy here involved. The court concluded :

The Barge SO 1515 and its cargo were in the care, custody or control of [the stevedoring company], and therefore the loss or damage to same was excluded from coverage under the policy by exclusion ]. [at 594; citations omitted.]

See also Madden v. Vitamilk Dairy, Inc., 59 Wash. 2d 237, 367 P. 2d 127 (Sup. Ct. 1961); Employers Mutual Liability Ins. Co. of Wisconsin v. Puryear Wood Products Co., 247 Art. 673, 447 S. W. 2d 139 (Sup. Ct. 1969); General Ins. Co. of America v. Camden Const. Co., 115 Ga. App. 189, 154 S. E. 2d 26 (Ct. App. 1967); Western Casualty & Surety Co. v. J. R. Adams, Inc., 465 P. 2d 794 (Okl. Ct. App. 1970); S. Birch & Sons Construction Co. v. United Pacific Ins. Co., 52 Wash. 2d 350, 324 P. 2d 1073 (Sup. Ct. 1958), and Cindrich v. Fireman's Fund Ins. Co., supra, construing “care, custody and control” clauses in somewhat analogous cases.

Also directly pertinent, and clearly pointing the way to the proper result here, is the Appellate Division decision in Boswell v. Travelers Indemnity Co., 38 N. J. Super. 599 (1956), cited above. There the court had before it for construction a “care, custody or control” exclusion in a manufacturer’s and contractor’s liability policy issued to an insured who was engaged in the business of installing and repairing steam boilers. The question was whether the clause excluded liability for damage to heat exchange units attached to the boiler in the basement of a customer’s office building upon which the insured was performing repairs. The court, noting that there were no New Jersey cases construing the phrase “care, custody or control,” held that the words were “inherently ambiguous, for they are words of art which have been the focus of considerable judicial construction” (38 N. J. Super, at 607), and concluded that the customer, as owner of the real estate, rather than the insured, had care, custody or control of the damaged units within the meaning of the policy. However, the court cited and distinguished decisions dealing with automobiles and chattels “in charge of” insured, including the Clark Motor Co. and Connable-Joest, Inc. cases cited above, saying:

* *• * None of those cases support defendant’s position under the facts of this case, because in those situations the chattel was clearly within the “care, custody and control” or “in charge of” the insured. * *
We have an entirely different case here. The heat exchange unit under repair was firmly attached to this owner’s realty, and was functionally a part thereof, [at 608, emphasis supplied]

There are many decisions which are in accord with the direct holding in the Boswell case. See Annotation, "Scope of clause excluding from contractor’s or similar liability policy damage to property in care, custody or control of insured,” 62 A. L. R$. 2d 1242 (1958) and supplements. However, the dictum, is clearly in harmony with the other decisions cited above dealing with the construction of exclusionary clauses in cases involving damage to cargo and chattels. See also Elcar Mobile Homes, Inc. v. D. K. Baxter, Inc., 66 N. J. Super. 478, 488 (App. Div. 1961); Condenser Service, etc., Co. v. American, etc., Ins. Co., 58 N. J. Super. 179, 185 (App. Div. 1959), certif. den. 31 N. J. 548 (1960); Schneider v. New Amsterdam Cas. Co., 22 N. J. Super. 238 (App. Div. 1952).

The reported authorities, therefore, do not limit the plain meaning of exclusion (h) but, on the contrary, support its effectiveness here to exclude coverage, both on the ground that the liquid sugar was being "transported” by the insured and on the ground that it was property "in charge of” the insured.

Since it is the ruling of the court that the language used in the exclusion is clear and unambiguous as applied to the facts of this case, there is no reason for inquiry here, applying the further test suggested in Mazzilli, supra, whether alternative or more precise language, if used, would have put the matter beyond reasonable doubt. However, it may be noted that the language of exclusion (h), excluding damage to property "transported” by insured or “in charge of” insured, has been used for many years in standard liability policies of various kinds without substantial changes in wording. Bisjord and Austin, Automobile Liability Insurance Cases, Standard Provisions and Appendix 8, 25, 39, 61, 93, 125, 159, 189, 222, 239 (1964), and 1970 pocket part 265. As is apparent from the paucity of direct authorities, there has been relatively little litigation in personal property cases with respect to the exclusion and almost none with respect to the meaning of property “transported” by the insured. A fair inference to be drawn therefrom is that litigation has been unnecessary because the meaning of the exclusion is clear and that the format of such policies, including the exclusion, has caused little difficulty either to the general public or to insurance companies. It is questionable whether, with respect to matters here involved, a much clearer or more serviceable policy could have been drawn. As stated in Ramsey, “The Care, Custody, Control Exclusion of Liability Insurance Policies”, July 1958, Insur. Counsel J. 288:

The acceptance, and consequently the success, of an insurance policy is not determined by the amount of litigation involving its construction, but rather lack of litigation. The lack of litigation ordinarily indicates understanding. The same may be said of a clause in a policy. * * *
There has been less disagreement and, hence, less litigation, concerning the meaning of the “care, custody, control” exclusion than many other provisions of liability insurance policies. * * *
All standard third-party liability insurance policies issued in this country today exclude injury to or destruction of property owned by, rented to, leased to, in charge of, or transported by the insured, or occupied or used by the insured, or property in the care, custody or control of the insured. The phraseology varies with each type of insurance contract, the variation conforming to the needs of a particular line of insurance. For example, the Family Automobile Policy excludes “injury to or destruction of property owned or transported by the insured, or property rented to or in charge of the insured.” The substance of this provision in different policies is the same. And it is generally referred to as the “care, custody, or control” exclusion.
The reason for this exclusion is to provide liability insurance at a reasonable rate. The insured desiring the elimination of this clause can do so for an additional premium, or even better, procure the additional type of insurance policy needed. Actually, the type of coverage needed, with the exclusion in the policy, may run the gauntlet from a blanket automobile physical damage policy to cargo, to a builder’s risk, to some type of floater policy. In reality, losses under this exclusion are business risks which should be borne by management. Henee, it is more practical to exclude such blanket property damage coverage and to afford it under separate policies, each type of policy depending on the business or occupation of the insured. In that way, the overall premium cost is kept to a minimum.

See also Cooke, “Care, Custody or Control Exclusions,” 432 Insur. L. J. 7 (Jan. 1959); Gowan, “Provisions of Automobile and Liability Insurance Contracts”, Jan. 1963, Insur. Counsel J. 96, 103.

The policy therefore passes muster when the tests of Mazzilli are applied and the exclusion is enforceable. Defendant is entitled to judgment with costs. ■

      Although it is conceded that Coverage B and exclusion (h) are applicable here, even if Coverage C and exclusion (j) were deemed applicable, the Brunson, Boswell and other cases construing the “care, custody or control” clauses cited above would require a construction of exclusion (j) to exclude coverage.