author: Collester, J. A. D. Goldmann, P. J. A. D.

text:
    JOSEPHINE TRAMUTOLA AND FRED N. TRAMUTOLA, HER HUSBAND, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. FRANK BORTONE, M.D., DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND HAZEL OLGA ELWOOD AND JEROME J. ROSE, CO-EXECUTORS OF THE ESTATE OF BENJAMIN ELWOOD, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS, AND THE BERTHOLD S. POLLAK HOSPITAL FOR CHEST DISEASES, DEFENDANT-RESPONDENT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1971
    Decided March 20, 1972.

      Before Judges Goldman», Collester and Mom.

      Mr. Daniel K. Tan Dorn argued the cause for defendant-appellant and cross-respondent Bortone (Messrs. Gleeson, Hansen & Pantag es, attorneys).

      Mr. Joseph T. Ryan argued the cause for defendant-appellants and cross-respondents, the executors of the estate of Benjamin Elwood (Mr. William, J. Gleary on the brief; Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).

      Mr. Morris Brown argued the cause for plaintiffs-respondents and cross-appellants Tramutola (Mr. Gene 0JDonnell on the brief; Messrs. Wilentz, Goldman <& Spitzer, attorneys).
    Uo brief was filed on behalf of defendant-respondent The Berthold Hospital for Chest Diseases.
   The opinion of the court was delivered by

Collester, J. A. D.

This case involves appeals and a cross-appeal from a judgment entered in favor of plaintiffs in a medical malpractice action.

On May 25, 1966 Josephine Tramutola brought an action to recover damages for personal injuries against Dr. Erank Bortone, Hazel Olga Elwood and Jerome J. Rose, co-executors of the estate of Dr. Benjamin Elwood, deceased (hereafter Elwood), and The Berthold S. Poliak Hospital for Chest Diseases (hereafter Poliak Hospital). Her husband) Ered Tramutola, joined in the action, per quod. At the close of all the evidence and before summations the hospital settled plaintiffs* claim for $7,500. The trial judge did not reveal the settlement to the jury and it returned a verdict in favor of Josephine Tramutola for $65,000 and in favor of her husband for $5,000 against all three defendants.

Following the trial, motions were brought on behalf of Elwood for a judgment n. o. v., a new trial, or to reduce the judgment pro rata by reason of plaintiffs’ prior settlement with the hospital; on behalf of Bortone for a new trial as to damages only or to settle the form of the judgment, and on behalf of plaintiffs to limit the deduction from the judgment against Elwood and Bortone to $10,000. The trial judge denied the motions and ordered that judgments be entered in favor of plaintiffs and against Elwood and Bortone, the judgments against each to> be in the amount of $23,333.33. Elwood and Bortone appealed and plaintiffs cross-appealed.

Most of the evidence adduced at the trial is uncontradieted. While Josephine Tramutola was being treated for a kidney condition at the Bayonne Hospital in November 1959 an X-ray revealed the existence of a shadow in her right lung. She was referred to Dr. Elwood who thereafter treated her for the lung condition. Following a series of tests at Poliak Hospital it was determined that plaintiff was suffering from “bilateral cylindric bronchiectasis, stenosis of the right middle lobe bronchus.” Dr. Elwood referred her to Dr. Bortone, a thoracic surgeon, who on April 28, 1960 performed a right middle lobectomy upon her at the hospital. Post-operative X-rays were taken of Mrs. Tramutola while she was still in the hospital. Within a week after her discharge plaintiff was again treated by Dr. Elwood. She continued to visit him for post-operative treatment, at first monthly and later biannually. She continually complained of a sharp pain in her chest above the breast. Dr. Elwood took X-rays and fluoroscopes on each visit, but plaintiff was never informed of the results. The doctor indicated that the pain was muscular and in time would clear up. He prescribed medication. Plaintiff was treated by Dr. Elwood until the fall of 1964, more than four years after the operation. She testified that she was in constant pain and was nervous and concerned about her condition.

In 1965, after Dr. Elwood’s death, plaintiff consulted Dr. Theodore Talbot in Staten Island. He took X-rays of plaintiff and informed her that there was a metallic object in her chest. It was determined that the object was part of a surgical needle which was used during the lobectomy at Poliak Hospital in April 1960. As a result Mrs. Tramutola was admitted to St. Yincent’s Hospital in Staten Island for further tests. Eollowing a conference with Dr. J. Maxwell Chamberlain, a New York City thoracic surgeon, Dr. Talbot recommended that no surgical operation be performed to remove the needle because it did not warrant the risk. Mrs. Tramutola testified that it is necessary for her to see Dr. Talbot once every six months to learn whether the needle had moved; that she continues to 'have pain in her chest, is very nervous and bothered by sleeplessness, and is required to take medication for pain.

(At oral argument the court was shown the X-rays taken at the hospital following the lobectomy. The presence of part of the surgical needle was evident even to our untrained eyes.)

The principal factual issue was whether plaintiff’s pain was caused by the needle in her chest or was the result of the spreading of the ribs during the lobectomy in 1960. Dr. Talbot, whose testimony was taken by deposition, said that the area where the needle was imbedded was insensitive and he did not think pain could emanate from it. In his opinion the pain was due to the lobectomy. He testified that it is necessary for plaintiff to be X-rayed periodically to ascertain whether the needle had moved.

On the other hand, Dr. David Graubard, plaintiff’s medical expert, testified that the pain was caused by the needle. He said that the X-rays taken at Poliak Hospital following the operation revealed that the front portion of a surgical needle used for suturing was located in the vicinity of the right bronchus in the hilar region. He testified that the needle had become encapsulated by scar tissue, causing the surrounding tissue to become nonelastie and rigid. He said that whenever plaintiff took a deep breath or made certain movements of her body the rigid tissue produced a pulling sensation on other organs in the area, causing pain. He stated the pain was not related to the lobectomy and that plaintiff would suffer pain for the rest of her life.

The only defense witness was Dr. Henry Eeich, who examined plaintiff on behalf of Dr. Bortone in November 1968. After examining the X-rays taken at the hospital he conceded that part of a surgical needle must have broken off during the operation and became buried in the hilar region. He said it had encapsulated and would not cause pain. He testified that his examination of plaintiff revealed no abnormal physical findings, no anxiety or nervousness, and was of the opinion that she had suffered no ill effects from the encapsulated needle.

The Elwood executors contend that the court erred in denying their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. It is argued that no expert testimony was adduced to show that Dr. Elwood in any way deviated from accepted medical standards in his post-operative treatment of plaintiff; that even assuming the X-rays taken by him revealed a foreign object in plaintiff’s chest, there was no proof of any medical standard that would require a doctor to tell the patient about it. It is also argued that there was no proof by competent medical evidence that plaintiff sustained damage because of Dr. Elwood’s nondisclosure.

The negligence charged against Dr. Elwood in this case was his failure to disclose to plaintiff that a foreign object was left in her body during the operation performed by Dr. Bortone. Where a surgeon knows or has reason to believe that he left a foreign object in his patient’s body during an operation he has a duty to disclose the facts to his patient, absent any sound medical reason for not doing so. See Annotation, “Malpractice •— Foreign Objects,” 10 A. L. R. 3d, 9, § 6 at 37 (1966); Dietze v. King, 184 F. Supp. 944 (E. D. Va. 1960); Taylor v. Milton, 353 Mich. 421, 92 N. W. 2d 57, 60 (Sup. Ct. 1958); Ernen v. Crofwell, 272 Mass. 172, 172 N. E. 73, 74 (Sup. Jud. Ct. 1930); Benson v. Dean, 232 N. Y. 52, 133 N. E. 125, 126 (Ct. App. 1921). A physician entrusted with the post-operative care of a patient, and who has reason to believe that a foreign object was left in the patient’s body during the operation, has a similar duty of disclosure. See Jackson v. United States, 182 F. Supp. 907, 911 (D. Md. I960); You Goo Ho v. Dr. Edmund T. K. Ing, 43 Haw. 289 (1959).

It is well settled that when a physician treats a patient he has an obligation to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his field, and failure to have and use such skill and care, resulting in injury or damage to the patient, constitutes negligence. Evidence of a deviation from accepted medical standards must ordinarily be provided by expert testimony. Schueler v. Strelinger, 43 N. J. 330, 344-345 (1964). However, a well recognized exception dispenses with the need for such testimony where the facts are such that it may be said, looking at the matter in the light of the common knowledge and experience of laymen, that there has been a lapse from the standard. Jones v. Stess, 111 N. J. Super. 283, 287 (App. Div. 1970); Sanzari v. Rosenfeld, 34 N. J. 128, 141 (1961).

In the instant case there was evidence that X-rays taken at the hospital immediately following the operation revealed the presence of the needle in plaintiff’s chest; that on each of her visits to Dr. Elwood over a four-year period following the operation he took X-rays and fluoroscoped her chest, but never informed her that a needle was lodged in her body. The alleged malpractice of Dr. Elwood was his negligence in either not discovering the needle in plaintiff’s chest or, having observed it, failing to inform Mrs. Tramutola of its presence so that she could have had it removed shortly after the lobectomy and before it became encapsulated by scar tissue.

The issue of Dr. Elwood’s negligence was not related to technical matters peculiarly within the knowledge of a medical practitioner, and there was no proof of any sound medical reason for nondisclosure of the fact that the needle was lodged in plaintiff’s chest. In the light of the proofs we are satisfied that the jury was competent to resolve the question of Dr. Elwood’s negligence without expert testimony.

We find no merit in the argument that there was no proof by competent medical evidence that plaintiff sustained damage by reason of Dr. Elwood’s nondisclosure. She testified that she has suffered and still suffers pain in her chest. Dr. Graubard testified that the pain was caused by the needle which had become encapsulated by scare tissue. He said the encapsulation caused surrounding tissue to be nonelastic and rigid, and this resulted in pain when plaintiff made certain movements of her body. We think it is implicit that if plaintiff had early on been informed by Dr. Elwood of the presence of the needle in her body before it became encapsulated she could have submitted to surgical treatment for its removal and thus eliminated the pain.

The Elwood executors also contend the trial judge erred in denying their motion to dismiss the complaint because it was not filed until June 1966, six years after the lobectomy and well beyond the two-year statute of limitations. In Fernandi v. Strully, 35 N. J. 434, 450 (1961), the court laid down the rule that in medical malpractice actions, where a foreign object is left in a patient’s body during the course of a surgical operation, the period of limitations begins to run when the patient knows or had reason to know about the foreign object and the existence of the cause of action based upon its presence. Plaintiff did not know or have reason to know that the needle was lodged in her chest until 3 965. She did not sleep on her rights but brought suit in 1966, soon after learning of its presence. Under the rationale of Fernandi v. Strully, supra, her action against Elwood was not barred by the statute of limitations.

Defendants Bartone and Elwood claim that the judge erred in permitting Dr. Lawrence Kaplan, a neuropsychiatrist, to testify as to the history plaintiff related to him during his neuropsychiatric examination. The physician did not treat her but examined and diagnosed her condition at the request of her counsel. The judge allowed him, over objection, to give the history because Mrs. Tramutola had already testified thereto.

The testimony indicated that a major part of a neuropsychiatric examination is based on the history given by the patient to the physician in order that an evaluation of her mental state and nervous condition can be made. Dr. Kaplan testified that at the conclusion of his examination he diagnosed plaintiff's condition as a chronic anxiety and depressive reaction caused by the difficulties she had following the operation, and in particular her knowledge that there was a needle fragment in her lung.

The history given by plaintiff to Dr. Kaplan consisted substantially of the medical treatment she received following the lobectomy, her eventual discovery through X-rays that the needle had been left in her lung, and the pain and nervous condition she claimed to have suffered since the operation.

Defendants argue that plaintiff's declarations to Dr. Kaplan were inadmissible hearsay because he was not a treating physician but had examined her solely for the purpose of testifying as an expert.

It is well settled that the declarations of a patient as to his previous symptoms, pain or physical sensations, made to a physician consulted for purposes of treatment, are admissible in evidence. Evidence Rule 63(12) (b); Cestero v. Ferrara, 57 N. J. 497, 501 (1971). However, it has long been the rule in this State that declarations made, not for the purpose of treatment but for the purpose of leading the physician to form an opinion to which he may testify as a witness for the declarant, are not competent evidence on behalf of the declarant. Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, 454 (E. & A. 1897).

Plaintiff argues that Dr. Kaplan’s testimony as to her declarations was admissible because it was not offered as proof of the truth of her statements but to lay the groundwork for his expert medical opinion as to the nature of her nervous condition. She relies on the comment to Evidence Buie 63(12) (b) in the Report of the New Jersey Supreme Court Committee on Evidence (March 1963), which states:

It is to be noted that (b) does not apply in cases where the declarant has gone to a physician only for diagnosis and not for treatment, e. g., to a physician whose function it is to testify. Such a physician would be permitted to testify that he had based his opinion on such a statement [of past symptoms, pain and suffering], but the statement itself would not be admissible as independent substantive evidence under Rule 63(12) (b). In cases where the doctor uses a statement made to Mm as a basis for testimony, the statement is not offered for its truth, but for the purpose of explaining and justifying the expert opinion, (at 174-175)

In denying defendants’ motion for a new trial on the ground that Dr. Kaplan’s testimony of the history given him was erroneously admitted into evidence, the trial judge indicated that he had relied on the comment in the report of the Supreme Court Committee, referred to above, which was prepared before the Rules of Evidence became effective on September 11, 1967. We note that comment to § 63(12)-4 to Evidence Rule 63(12) (b) in the 1972 Annotations prepared by the Rules of Court Review Commission of the New Jersey Legislature does not incorporate the language of the 1963 comment of the Supreme Court Committee.

Courts in some jurisdictions support plaintiff’s argument that a physician who has been consulted solely for the purpose of qualifying as an expert witness on behalf of a patient may testify, over a hearsay objection, as to the patient’s statements concerning his past pain, suffering and subjective symptoms, not as proof of the truth of the statements but merely to show the basis of the physician’s opinion as to the nature of the injuries or illness. See Annotation, “Patient’s Statements —■ Admissibility,” 37 A. L. R. 3d 778, § 7(b) at 823 (1971). The great majority of courts hold to the contrary. Ibid., § 7(a) at 820.

The rationale for the New Jersey rule excluding such testimony is that declarations made to an examining physician to qualify him as an expert witness do not have the trustworthiness of declarations made to a treating physician because the self-interest of the declarant may become a motive for distortion, exaggeration and falsehood. Consolidated Traction Co. v. Lambertson, supra, at 455; Sanford v. The Chanaz Co., 117 N. J. L. 485, 488 (E. & A. 1937). Accordingly, we conclude that the trial court erred in permitting Dr. Kaplan to testify as to the declarations made by plaintiff of her past medical history.

The question presented is whether such testimony was so prejudicial as to warrant a reversal and a new trial. We think not. Mrs. Tramutola preceded Dr. Kaplan on the witness stand and had testified to her past symptoms, medical history and current complaints. Her husband and daughter subsequently testified to their observations of plaintiff’s physical and emotional condition. Dr. Talbot’s deposition concerning plaintiff’s prior medical history and emotional condition was read to the jury, without objection. In substance, Dr. Kaplan’s testimony of plaintiff’s history was a repetition of what had already been testified to by plaintiff and was subsequently corroborated b3r other witnesses.

In Consolidated Traction Co. v. Lambertson, supra, the court concluded that while the examining physician had improperly testified concerning declarations made to him by plaintiff, his testimony was not a ground for reversal where other evidence showed that such declarations were true. See also Baumhoer v. McLaughlin, 205 S. W. 2d 274, 280 (Mo. Ct. App. 1947). We conclude that the admission of Dr. Kaplan’s testimony of plaintiff’s declarations was at most harmless error.

Both Bortone and Elwood contend that the trial judge’s comments on the evidence in his charge were prejudicially weighted in favor of plaintiff and, further, that he erred in his instructions to the jury on the question of damages. We have carefully reviewed the charge and find no merit in these contentions.

Elwood argues that the trial judge erred by not interrogating the jury about the nature of its verdict. The record indicates that immediately following the return of the verdict the judge asked, “Is there anything further you want to say ?” The jury foreman responded, “The percentages, you want?” The judge replied, “No.” The jury was then polled and unanimously agreed with the verdict as reported by its foreman.

We find no merit in Elwood’s argument that the judge should have asked the foreman to explain what he meant by his reference to “percentages.” The charge directed the jury to return its verdict in lump sums in the event it found that plaintiffs were entitled to damages. The question of “percentages” was no l raised during the trial and was not a matter for determination by the jury. Theohold v. Angelos, 40 N. J. 295, 305 (1963).

Elwood also alleges that the court erred in concealing from the jury the fact that plaintiffs had settled their claims against Poliak Hospital for $7,500 after the conclusion of the testimony but before the summations. He relies on Theohold v. Angelos, supra. In that case the court stated that where multiple tortfeasors are or may be jointly responsible for an individual’s injuries and losses, and one or more of them effect a settlement in exchange for a covenant not to sue, the fact of the settlement, but not the amount paid, is generally brought to the attention of the jury at the trial. The court said that when the jury has such knowledge speculation is avoided as to the reason for the absence from the proceedings of an additional potentially liable person. The court further said that if the jury decides that the defendant was guilty of negligence which was solely or partly responsible for the injuries and losses sustained, it should return a verdict for the total sum which represents reasonable compensation therefor; that the computation of compensation must be made without regard to the number of defendants remaining in the ease, or the number of defendants originally in the case but who had made settlements with plaintiff ■— and without any deduction based upon what the jurors thought that plaintiff might or should have received in those settlements.

In our view the trial judge did not err in not revealing the fact of the settlement to the jury. The testimony had been presented, only summations remained. To have advised the jury of the settlement might well have caused speculation by it and adversely affected plaintiff or the remaining defendants. Here all parties, including Poliak Hospital, presented their summations, after which the case was sent to the jury. We find no prejudicial error in the trial judge’s action.

Defendant Bortone claims that the damages totaling $70,000 awarded by the jury were excessive. His motion for a new trial on that ground was denied by the trial judge. We have reviewed the evidence as to the pain and suffering endured by Mrs: Tramutola following the lobectomy. There was medical testimony that she suffered and will continue to suffer physical pain as well as psjrchiatric injury. We will overturn a jury verdict on the ground of excessiveness only with reluctance and never except in a clear case. Fritsche v. Westinghouse Electric Corp., 55 N. J. 322, 330 (1970); Andryishyn v. Ballinger, 61 N. J. Super. 386, 393 — 394 (App. Div. 1960), certif. den. Andryishyn v. Bayonne Bloch Co., 33 N. J. 120 (1960). We conclude that the verdicts were not excessive; the denial of the new trial motion was not a miscarriage of justice. B. 4:49-1.

We come next to the question of apportionment of damages among the joint tortfeasors. Following the verdict a motion was made for settlement of the form of the judgment. The trial judge concluded that Poliak Hospital, a county hospital, did not come within the purview of N. J. S. A. 2A:53A-8, which provides that a nonprofit hospital shall not be liable to respond in damages for negligence to a beneficiary in an amount in excess of $10,000. Poliak Hospital having settled plaintiffs’ claims for $7,500, the judge apportioned the damages as follows:

To Josephine Tramutola:

1/3 by Dr. Bortone — $21,666.63

1/3 by Dr. Elwood — $21,666.66

1/3 by County of Hudson [Poliak Hospital], satisfied by settlement.

To Fred Tramutola:

1/3 by Dr. Bortone — $1,666.66

1/3 by Dr. Elwood -— $1,666.66

1/3 by County of Hudson [Poliak Hospital], satisfied by settlement.

We find no merit in Elwood’s contention that an agency relationship existed between Dr. Elwood and Dr. Bortone, constituting them a single tortfeasor and thus liable for only one-half of the damages awarded, the other half being satisfied by the $7,500 settlement paid by the hospital. There was no evidence of an agency relationship adduced at the trial.

Plaintiffs, in their cross-appeal, assert the trial judge erred in ruling that the liability of Poliak Hospital was not limited to $10,000 by N. J. S. A. 2A:53A — 8 and therefore erred in the apportionment of damages abong the tortfeasors. The hospital is a nonprofit institution created and maintained by Hudson County for the treatment of lung diseases under N. J. 8. A. 30 :9-46 ei seq. We are satisfied that it is entitled to the benefits of the statute (N. J. 8. A. 2A :53A-8 and 10) limiting liability in negligence cases to $10,000. See Muntz v. Newark City Hospital, 115 N. J. Super. 273, 277 (App. Div. 1971).

We further conclude that the trial judge’s apportionment of damages vras erroneous. If no settlement had been effected with the hospital, the pro rata apportionment of the $70,000 awarded would have been $10,000 charged against the hospital, the remaining $60,000 being equally divided between defendants Elwood and Bortone. If the judge’s apportionment of one-third of the damages ($23,333.33) against the hospital is permitted to stand, plaintiffs will suffer a loss of $15,833.33 instead of only $2,500 resulting from their settlement with the hospital.

The Joint Tortfeasor’s Law, N. J. S. A. 2A:53A-1 et seq., was intended to relieve tortfeasors of an injustice as among themselves. It was not designed to prevent a full recovery by the victim unless he voluntarily invited a reduction by settling with a tortfeasor for less than the tortfeasor’s pro rata share. Judson v. Peoples Bank and Trust Co., 25 N. J. 17, 38 (1957). Here plaintiffs settled with the hospital for $7,500, $2,500 less than the hospital’s limited statutory liability of $10,000. There is a strong policy in favor of settlements. A hospital, whose liability is limited to $10,000, should not be precluded from settling a claim against it for a lesser amount. A claimant should not be subjected to an unfair apportionment of his damages because he settled with a hospital for less than the limit of the hospital’s statutory liability. Defendants Bortone and Elwood are not entitled to a windfall which would reduce their pro rata shares of liability for damages because of the settlement effected in this case.

The $70,000 verdict should be reduced by $10,000, the full amount of the hospital’s liability for damages. The remaining $60,000 should be apportioned between Bortone and Elwood, the remaining joint tortfeasors.

The judgment of liability on the part of defendants is affirmed. The matter is remanded with directions to modify the apportionment of damages in harmony with this opinion.

Goldmann, P. J. A. D.

(concurring). I agree with the majority opinion in all respects except one. Although recognizing that we are bound by the rule annunciated by our then highest court in 1897 in the ease of Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, 454 (E. & A. 1897), I am of the opinion that the time has come to reexamine the viability of that rule in the light of our present more liberal treatment of the rules of evidence. I am in accord with the conclusion reached by the New Jersey Supreme Court Committee on Evidence in its 1963 comment to Evidence Buie 63(12) (b), quoted in the majority opinion.

In my view, the trial judge, relying upon that comment, correctly denied defendants’ motion for a new trial made on the ground that Dr. Kaplan’s testimony as to the history given him by Mrs. Tramutola had erroneously been admitted into evidence. Dr. Kaplan could not have formed an opinion as to plaintiff’s mental state and psychiatric condition without bei ng informed in at least some detail as to her prior history and complaints. His situation was not that of a treating doctor who can base an opinion on, at least, objective physical symptoms. Indeed, Dr. Kaplan said that his evaluation necessarily had to be based on his discussion with Mrs. Tramutola, and that discussion had to include her account of her past medical history.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CONTI CAUSEWAY FORD, PLAINTIFF-RESPONDENT, v. NORMA JAROSSY AND STEPHEN JAROSSY, DEFENDANTS-THIRD PARTY PLAINTIFFS-APPELLANTS, v. THE FIRST NATIONAL BANK OF TOMS RIVER, THIRD-PARTY DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 7, 1972
    Decided March 15, 1972.

      Mr. Denis J. Corbett, Staff Attorney, Ocean County Legal Services, Inc., argued the cause for appellants Norma Jarossy and Stephen Jarossy.

      Mr. Robert 8. Fisher, argued the cause for respondent The First National Bank of Toms Eiver.

      Mr. Eugene Jume, filed statement in lieu of brief for respondent Conti Causeway Ford.
    Before Judges.Lewis, Halpern and Lora.
   Per Curiam.

We have considered the issues raised by appellants in the light of the circumstances of this case, and conclude the judgment should be affirmed for the reasons expressed in Judge Eobert H. Doherty, Jr.’s opinion below.


author: Lane, J. S. C.

text:
    M. A. STEPHEN CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND SARK KAVOOKJIAN, PLAINTIFFS, v. BOROUGH OF RUMSON, A MUNICIPAL CORPORATION OF THE COUNTY OF MONMOUTH, STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 17, 1972.

      Mr. Frank A. Palmieri for plaintiffs.

      Mr. William B. Blair, Jr., for defendant (Messrs. Parsons, Gamona, Blair & Warren, attorneys).
   Lane, J. S. C.

This matter is before the court on defendant’s motion for an order “striking from the Pretrial Order * * * the issue of damages and striking from the Complaint, as amended by the Pretrial Order, that portion thereof alleging and claiming damages,” on the ground that plaintiff M. A. Stephen Construction Co., Inc. is not entitled to damages as a matter of law.

M. A. Stephen Construction Co., Inc. submitted to defendant a low bid for a contract for sewer installation. Pursuant to a reservation, defendant rejected all bids.

The history of the case and the facts are adequately set forth in the opinion of the Appellate Division in M. A. Stephen Construction Co. v. Rumson, 117 N. J. Super. 431 (App. Div. 1971). A summary judgment that had been granted to defendant was reversed, and the matter remanded to this court.

Stephen Co. sharply controverted all statements and innuendoes that reflected adversely on its responsibility as the successful low bidder. We are satisfied that there were genuine issues of fact to be resolved by the trial court, that the ease was not ripe for a summary judgment, and that the matter should have proceeded to a plenary hearing, [at 439]

The opinion of the Appellate Division concluded:

* * * We do not pass upon what legal remedies, if any, might be available to plaintiffs or either of them in the event, after a full hearing, it should be determined that the municipality acted wrongfully. Compare Cardell, Inc. v. Woodbridge Tp., supra, with 10 McQuillin, Municipal Corporations (3d ed. 1986 revision), § 29.86. [at 439]

Defendant argues that as a matter of law plaintiff contractor is not entitled to damages regardless of whether the rejection was invalid.

It is generaly recognized that competitive bidding on public contracts is a stable principle of public policy. M. A. Stephen Construction Co. v. Rumson, supra, 117 N. J. Super, at 436. The purpose of competitive bidding is to secure competition and guard against favoritism, improvidence, extravagance and corruption. Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 479 (1971); Home Owners Construction Co. v. Glen Rock, 34 N. J. 305, 315 (1961); Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957); Closter Serv. Stations Inc. v. Ridgefield Pk. Com’rs, 99 N. J. Super. 69, 73 (App. Div. 1968); 10 McQuillin, Municipal Corporations (3d ed. rev’d 1966), § 29.29 at 321. Statutes requiring competitive bidding are for the benefit of taxpayers, not for the benefit or enrichment of the bidders. Such statutes are construed with sole reference to the public good. Trap Rock Industries, Inc. v. Kohl, supra, 59 N. J. at 479; Skakel v. North Bergen, 37 N. J. 369, 378 (1962); Hillside Tp. v. Sternin, supra, 25 N. J. at 322; M. A. Stephen Construction Co. v. Rumson, supra, 117 N. J. Super, at 436; 10 McQuillin, Municipal Corporations, supra, at 322. But see, Paterson Contracting Co. v. Hackensack, 99 N. J. L. 260, 264 (E. & A. 1923); Sellitto v. Cedar Grove, 132 N. J. L. 29, 33 (Sup. Ct. 1944).

The public interest is served by permitting suits to enforce the policy of competitive bidding. A low bidder is entitled to be heard by the public authority before his bid is rejected; and if his bid is rejected, to sue. Trap Rock Industries, Inc. v. Kohl, supra, 59 N. J. at 479; Commercial Clean. Corp. v. Sullivan, 47 N. J. 539, 550 (1966); Arthur Venneri Co. v. Paterson Housing Authority, 29 N. J. 392, 402 (1959); J. Turco Paving Contractor, Inc. v. City Coun cil of Orange, 89 N. J. Super. 93, 99 (App. Div. 1965). A rejected low bidder has “an interest of some character which will support a claim to be heard.” Trap Rock Industries, Inc. v. Kohl, supra, 59 N. J. at 480. The interest is conferred on him to the end that the public will obtain all that is due it in the process of. procuring public contracts rather than for the bidder’s individual aggrandizement. See Arthur Venneri Co. v. Paterson Housing Authority, supra, 29 N. J. at 402-403.

The general rule is that an improper award of a public contract to one other than the low bidder does not entitle the low bidder to a recovery of damages from the public body. Molloy v. City of New Rochelle, 198 N. Y. 402, 92 N. E. 94, 96 (Ct. App. 1910); Lane v. Board of Com'rs of Boone County, 7 Ind. App. 625, 35 N. E. 28 (App. Ct. 1893); 10 McQuillin, Municipal Corporations, supra, § 29.86 at 452; 43 Am. Jur., Public Works and Contracts, § 65 at 808 (1942); 63 C. J. S. Municipal Corporations § 1157 at 834 (1950). Cf. Commercial Clean. Corp. v. Sullivan, supra, 47 N. J. at 546; Somers Construction Co. v. Board of Education, 198 F. Supp. 732, 737 (D. N. J. 1962); William A. Berbusse, Jr., Inc. v. North Broward Hosp. D., 117 So. 2d 550, 552 (Fla. D. Ct. App. 1960); Day v. City of Beatrice, 169 Neb. 858, 101 N. W. 2d 481, 488 (Sup. Ct. 1960). Where there is no statute requiring that the award be made to the low bidder, damages have been denied on the ground that a bid does not give to the bidder any contractual rights. Where there is such a statutory requirement, damages have been disallowed on the grounds that such statutes are enacted for the benefit of the public, and that to allow a bidder to recover damages would aggravate the injury to the public. Such statutes benefit a bidder only incidentally.

Plaintiff relies primarily on Cardell, Inc. v. Woodbridge Tp., 115 N. J. Super. 442 (App. Div. 1971). In that case plaintiff, the low bidder, contested the validity of defendant’s actions in connection with various bids on public contracts. The trial court held that plaintiff’s bids had been •wrongfully rejected and awarded damages estimated to be the difference between the contract price and the cost of performance. Defendant appealed on the grounds that it was entitled to reject all bids; that the trial court erroneously omitted general costs of overhead in computing plaintiff’s construction costs; that plaintiff’s recovery was limited to the difference between its bid and the bid of the contractor to which the award was eventually made. Plaintiff cross-appealed arguing that the trial court’s estimation of damages was against the weight of the evidence. The Appellate Division affirmed the trial court’s award of damages. The pretrial order and the briefs and appendices before the Appellate Division have been examined. No issue was raised in that case as to the municipality’s liability for damages. It was assumed by the parties that there would be liability if the rejection of plaintiff’s bid was not justified. That case should not be considered authority that a low bidder whose bid has been wrongfully rejected may recover damages from the public body and thereby aggravate the loss to the taxpayers.

In Commercial Clean. Corp. v. Sullivan, supra, dealing with an action by a low bidder on a public contract solicited by the Director of Treasury, Justice Praneis said:

It should be noted that appellant quite properly makes no claim for damages based upon the alleged improper failure to award it the contract. Submission of the lowest bid in answer to an advertisement for bids by the State for public work cannot be the basis of a claim for damages based upon the failure or refusal to accept such bid. Cf. Somers Construction Co. v. Board of Education, 198 F. Supp. 782 (D. N. J. 1962) ; Malan Const. Corp. v. Board of County Road Com’rs, 187 F. Supp. 937 (E. D. Mich. 1960) ; Day v. City of Beatrice, 169 Neb. 858, 101 N. W. 2d 481, 488 (Sup. Ct. 1960) ; Allen v. Eberling, 24 App. Div. 2d 594, 262 N. Y. S. 2d 121 (App. Div. 1965) ; 43 Am. Jur., Public Works and Contracts, § 65 (1942) ; 10 McQuillin, Municipal Corporations, § 29.86 (3d ed. 1950) [47 N. J. at 546-547]

Plaintiff M. A. Stephen Construction Co., Inc. has no basis for a claim for damages. Defendant’s motion to strike will be granted. The matter has been set down for the plenary hearing on May 22, 1972, as ordered by the Appellate Division.


author: Toscano, J. C. C.

text:
    BRUCE G. M. DIESEL, INC., PLAINTIFF, v. ASSOCIATES FINANCIAL SERVICES CO., INC. AND WILLIE J. BROWN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 17, 1972.

      líessrs. Winne & Banta, attorneys for plaintiff.

      Messrs. Kramer & Kramer, attorneys for defendant Associates Financial Services Co., Inc.
   Toscano, J. C. C.

This action was brought by plaintiff Bruce G. M. Diesel, Inc., to enforce a common law artisan’s lien on a certain truck for the value of repairs made on said truck.

The parties have stipulated the facts to be that on July 7, 1969 Willie J. Brown, as debtor, executed a security agrees ment in favor of Associates Einancial Services Co., Inc. (Associates) as secured party, on a 1966 International truck. On August 8, 1969 a motor vehicle certificate of ownership was issued by the New Jersey Division of Motor Vehicles showing ownership of the truck in Brown, subject to the lien of the secured party, Associates. Thereafter, in March 1971 Brown, without the knowledge of Associates, brought the vehicle to plaintiff Bruce G. M. Diesel, Inc. (Diesel) to have repairs made on the truck, and Diesel made said repairs, the reasonable cost of which is $2814.07. On March 19, 1971 Associates was still the owner and holder of the security agreement, and the payments due on that agreement had been in default since November 15, 1970. The vehicle was repossessed on March 19 from the Diesel premises by a constable whose services had been engaged by Associates to locate and repossess the vehicle. Diesel made demand upon Associates to return the vehicle; Associates refused and Diesel now sues Associates seeking damages of $2814.07.

The sole issue in this case is whether the Garage Keeper’s Lien Act, V. J. S. A. 2A.-44-21, eliminates the common law artisan’s lien when the chattel involved is a motor vehicle. The statute reads:

A garage keeper who shall store, maintain, keep or repair, a motor vehicle or furnish gasoline, accessories or other supplies therefor, at the request or with the consent of the owner or his representative, shall have a lien upon the motor vehicle or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline, accessories or other supplies therefor, and may, without process of law, detain the same at any time it is lawfully in his possession until the sum is paid.
The lien shall not be superior to, nor affect a lien, title or interest of a person held by virtue of a prior conditional sale or a prior chattel mortgage properly recorded or a prior security interest perfected in accordance with chapter 9 of Title 12A of the New Jersey Statutes.

In B. C. S. Corp. v. Frick, 19 N. J. Misc. 129 (D. CL 1941), the court refused to grant plaintiff a common law artisan lien superior to a prior conditional sale or chattel mortgage, contending that motor vehicles and garage keepers were unknown at common law and that the Garage-Keeper’s Lien Act was in some respects declaratory of the common law right of lien by an artisan. In support of this holding the court cited Crucible Steel Co. v. Polack Tyre & Rubber Co., 92 N. J. L. 221 (E. & A. 1918), which states:

It extends this right of lien to other conditions in business life than those that existed in common law. Thus, for example, it gives the garage keeper a lien for the storing and maintaining of motor vehicles, a present popular means of conveyance unknown to the common law, and which has in a great measure supplanted the horse and wagon and revolutionized the mode of transportation; it gives a right of lien for furnishing gasoline, accessories or other supplies for motor vehicles, for which no right of lien could have properly existed at common law. [at 227]

It is to be noted that the word “repair” was not included in this explanation of the extension of the common law lien.

There has not been a later decision directly on this point. However, the Supreme Court in Ferrante Equipment Co. v. Foley Machinery Co., 49 N. J. 432 (1967), did cite the Friclc case and made several statements implying that that decision would be followed in an appropriate situation. This court believes that the situation at hand is appropriate for a more complete declaration of the law on this matter and, therefore, finds that the right to a common law artisan lien on a motor vehicle is superior to a prior security interest and thus survives the enactment and amendments to N. J. S. A. 2 A: 44-21.

To establish a common law artisan lien, a plaintiff must prove that “the chattel was bailed to him, that he expended his skill aud labor in the improvement of the chattel, that he conferred upon it additional value, that he had the expressed or implied consent of the owner to do the work, and that he was employed for the purpose of rendering the service.” Kalio Universal, Inc. v. B. A. M., Inc., 95 N. J. Super. 393 (App. Div. 1967). See also, White v. Smith, 44 N. J. L. 105, 109, 110, 112 (Sup. Ct. 1882).

Except for the existence of N. J. S. A. 2A :44-21, it would be undisputed that plaintiff in the instant action is entitled to an artisan lien which, under N. J. S. A. 12A:9-310, would rank superior to the security interest held by Associates. It is also clear that the first paragraph of N. J. S. A. 2A:44-21 is fully applicable in this case because of the word “repair.” However, if the second paragraph is likewise applied in order to subordinate plaintiff’s lien to the prior security interest, then the operation of the statute is in direct derogation of the common law. In effect, the statute would be restricting or taking away the common law rights of an artisan, and enlarging or establishing the statutory rights of a secured creditor.

The well recognized maxim of statutory interpretation in New Jersey is that statutes which claim to establish a right that was not recognized by the common law will be strictly construed to avoid such asserted change. To effectuate any change in the common law the legislative intent to do so must be clearly and plainly expressed. Carlo v. Okonite-Callender Cable Co., 3 N. J. 253, 265 (1949); see also, State v. Western Union Telegraph Co., 12 N. J. 468, 486 (1953). Moreover, there is always a presumption that the Legislature had no intention to talce away a common law right. Blackman v. Iles, 4 N. J. 82, 89 (1950). As a result, the burden is upon defendant Associates to establish its statutory priority.

According to the lies case (at 89), in order to discover the intention of the Legislature when a statute alters or amends the previous law, it is important to ascertain the old law, the mischief and the proposed remedy. See also Holt v. Akarman, 84 N. J. L. 371 (E. & A. 1913); Pine v. Okzewski, 112 N. J. L. 429 (E. & A. 1934). The Legislature has the constitutional power to change or modify the common law as long as its purpose in doing so is to attain a permissible legislative object. Magierowski v. Buckley, 39 N. J. Super. 534, 558 (App. Div. 1956).

The “old law” in respect to the matter at hand involved the common law artisan lien described above. The “mischief” in the old law was that one had to prove that he conferred additional value upon the chattel in his possession. Beck v. Nutrodynamics, Inc., 77 N. J. Super. 448, 451 (Cty. Ct. 1962). Consequently, a person in the position of a garage keeper who merely stores, maintains or furnishes gasoline and other supplies for automobiles, without enhancing the value of the vehicle, had no right to a lien under common law.

The “remedy” was found in a statute adopted in 1915 entitled “An Act for the better protection of garage keepers and automobile repairmen.” The court in Crucible Steel Co. v. Polack Tyre & Rubber Co., supra, 92 N. J. L. at 227, held that this original Garage Keeper’s Lien Act, which is practically identical to the first paragraph of N. J. S. A. 2A :44 — 21, was enacted in order to enlarge and extend the right of lien to conditions not included at common law, was in line with the natural progress of the law to meet necessities arising from new business conditions, and was peculiarly within the province of the legislative power to determine.

The above statute was amended in 1925 to subordinate the statutory created right of lien to prior conditional sales and chattel mortgages, and, in 1961, to perfected security interests. Seeing that the statute not only redeclared the common law, but also created rights not recognized by common law, -which would therefore be strictly construed by the judiciary, Onondaga Truck Lease, Inc. v. Hovell, 107 N. J. Super. 463 (Cty. Ct. 1969), it was perfectly reasonable and proper for the Legislature to expressly restrict these new rights.

On the other hand, the Legislature did not specifically express an intention to similarly restrict the common law artisan lien with respect to motor vehicles. Furthermore, defendants have not presented any permissible legislative objective for subordinating this particular species of artisan liens to prior security interests. Rather, they rest their argument on the opinion in Ferrante Equipment Co. v. Foley, 49 N. J. 432 (1967), which case this court finds to support the position that there is no rational basis for the abolition of the artisan lien pertaining to motor vehicles.

The holding in Ferrante was that a bulldozer is not a “motor vehicle” within the meaning of the first paragraph of the Garage Keeper’s Lien Act and, as a result, defendant there had an artisan lien that was superior to plaintiff’s conditional sales contract. In other words, the second paragraph of the statute was found inapplicable. The statement by the court upon which the present defendant relies is:

For, if it is a motor vehicle, defendant has only a garage keeper’s lien that is inferior to plaintiff’s. If it is not a motor vehicle, defendant has an artisan’s lien that is superior to plaintiffs, [at 438]

The reasoning of the court went to the issue of why bulldozers do not fall within the definition of motor vehicles, and not to the issue of why bulldozers deserve to be treated differently from other motor vehicles, or, from the point of view pertinent to the instant case, why motor vehicles should be treated differently from other chattels subject to common law artisan liens. The Ferrante court defined the preferred aatisan lien as follows:

To achieve the status of such a lien holder with respect to personal property, the artisan, by his labor and skill, must contribute to the improvement of the personal property. If the artisan improves, betters, or repairs the property and thus enhances the value of the property by his skill, labor or materials, he acquires the right to a specific lien on the property. He retains this interest in the property until paid, [at 436-437; emphasis added]

Although this court finds itself in agreement with the ultimate result in Ferrante, it believes that the Supreme Court’s strict interpretation of the first paragraph of N. J. 8. A. 2A -.44-21 in order to arrive at its result made it unnecessary for the court to determine whether the second paragraph must be applied so broadly that the common law artisan lien on the bulldozer would be subordinated to the conditional sale contract. From a reading of the entire opinion it is evident that the court did not directly concern itself with an interpretation of the second paragraph, or with the precise issue raised in the instant case. The effect of the Supreme Court’s decision is not that there are no longer preferred artisan liens with respect to automobiles, but rather that there are no statutory liens with respect to bulldozers “for charges resulting from maintenance or storage of the bulldozer, or such services as gasoline, oil, grease and other maintenance services.” (at 437-438).

For the foregoing reasons, this court finds that it was not the intention of the Legislature to subordinate common law artisan liens with respect to motor vehicles to prior conditional sales, chattel mortgages or perfected security interests.

Summary judgment for plaintiff is therefore granted, subject to its proving the enhancement of the value of the property by its skills.


text:
    JOSEPHINE DiNARDO, PETITIONER-RESPONDENT, v. NEWARK BOARD OF EDUCATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 14, 1972
    Decided March 29, 1972.

      Mr. Thomas H. Green argued the cause for respondent-appellant.

      Mr. Irving Silverman argued the cause for petitioner-respondent (Messrs. Jacobson & Silverman, attorneys).
    Before Judges Labbecqtte, Kolovsky and Allcokn.
   Per Curiam.

Kespondent Newark Board of Education appeals from a determination of the Essex County Court which, after a de novo consideration of the record, affirmed a judgment of the Division o£ Workmen’s Compensation holding petitioner Josephine DiNardo entitled to benefits for accidental injuries sustained on March 9, 1967.

On the day of the accident petitioner was employed by respondent as a cafeteria worker at the Vailsburg (Newark) High School. Her hours were from 9 a.m. to 3 p.m. On the day in question she had just exited the school building and was walking on the adjacent sidewalk en route to a bus stop when her heel caught in a crack in the sidewalk, causing her to fall and sustain the injuries on which her claim is based. It was conceded that the sidewalk in question was part of the public right-of-way and that it was immediately adjacent to the school premises.

Originally the judge of compensation, believing that he was controlled by Gullo v. American Lead Pencil Co., 119 N. J. L. 484 (E. & A. 1938), had dismissed the petition. With the coming down of the opinion in Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970), the dismissal was vacated and judgment was entered for petitioner.

In his oral opinion the judge of compensation found that the statutory test for compensability had been met. He reasoned that if the parking lot maintained by an employer was part of its premises for purposes of workmen’s compensation, the sidewalk abutting respondent’s premises in the instant case should be considered a part thereof for the same reasons, especially where, as here, its state of disrepair may have played a causative role in petitioner’s injury. Applying the basic test of compensability, he found that petitioner’s accident arose out of the employment since it resulted from a risk reasonably incidental thereto, to wit: a crack in the sidewalk over which she was required to travel in making her work-connected trip to and from work, and that it arose in the course of her employment since she was then doing what one so employed might reasonably do within the time during which she was employed and at a place where she might reasonably be during that time. Hammond v. The Great Atlantic & Pacific Tea Co., supra, at 11.

On appeal the County Court judge affirmed the action of the Division in all respects.

The issue before us is a rather narrow one. We need not determine whether petitioner’s injuries would have been compensable had they been sustained as she was boarding a bus at a bus stop some two blocks away. We are concerned only with the compensability of injuries sustained by her when, while in the process of leaving the work premises at the conclusion of her work, she falls on the adjacent sidewalk she is required to traverse in doing so.

In Hammond the employer had provided a parking lot 300 feet away, but petitioner had relied upon her husband or public transportation to get to work. At the time of the accident she had been riding with a fellow employee who parked her car in the parking lot. It was petitioner’s custom to walk to a point some distance from the building where she worked and across the street from it and there wait to be picked up by her co-employee. On the day of the accident, while en route to the point where she was to be picked up, she fell and sustained the injuries for which she claimed compensation.

In Hammond the court found it unnecessary to determine whether the “going and coming” rule was to be abandoned. It held that the basic test of compensability was whether the injury arsoe out of and in the course of the petitioner’s employment and noted that the going and coming rule was a “subordinate doctrine” which had “produced many harsh results.” It pointed out the extent to which the rule had been eroded, noting that most courts treated an injury occurring in the public street between the plant and the parking lot of the employer as compensable. See Lewis v. Walter Scott & Co., Inc., 50 N. J. Super. 283 (App. Div. 1958). It ruled that the going and coming rule was to be construed liberally, within the spirt of the workmen’s compensation legislation and that, so viewed, the accident arose out of and in the course of petitioner’s employment and her injuries were compensable. Accord, Bergman v. Parnes Brothers, Inc., 58 N. J. 559, 566-567 (1961). See also Ricciardi v. Damar Products Co., 45 N. J. 54, 61 (1965); O’Brien v. First Camden Nat. Bank & Trust Co., 37 N. J. 158, 163 (1962); Daly v. Edwards Engineering Corp., 107 N. J. Super. 183, 186 (App. Div. 1969), aff’d 54 N. J. 524 (1969); Note, “Arising Aut of’ and hn the Course of’ the Employment Under the New Jersey Workmen’s Compensation Act,” 20 Rutgers L. Rev. 599, 613-21 (1966).

In accordance with the philosophy of our Workmen’s Compensation Act and in the light of Hammond, Bergman and Lewis, we hold petitioner’s injuries here to be compensable. Whether she was stepping up onto the adjacent sidewalk preparatory to entering the building, or walking along it in the process of leaving, she was in an area where she might reasonably be, and at a time when her presence there would normally be expected. It was an area as to which respondent, as the adjoining landowner, was subject to certain responsibilities. While not necessary to our decision here, we gather that the sidewalk in question was maintained by respondent.

Had petitioner been walking on the sidewalk, whether intending to go to the parking lot to pick up her car or waiting for a ride with a fellow employee, her injuries would have been compensable. Logic and reason would seem to dictate that she should not be denied compensation because she availed herself of public transportation to and from her work. We are living in an era when public funds are more and more being utilized in an effort to improve and encourage the use of mass transit facilities, and thus lessen the load on our already overburdened highways. In using the bus rather than her own car (assuming she owned one) petitioner was furthering the State’s interest in alleviating traffic congestion and air pollution. Beyond this, her employer specifically benefited from the absence of a need to furnish parking facilities for her. Certainly it would be- incongruous to permit a recovery by an employee for injuries while traversing the adjacent sidewalk en route to the parking lot to get her car, while at the same time denying compensation to another employee, simultaneously injured at the same spot, who is unable to afford a car and must use public transportation.

We hold that petitioner’s injuries were sustained in an accident arising out of and in the course of her employment with respondent and are hence compensable.

The judgment of the County Court is accordingly affirmed.


text:
    RAYMOND J. THORNTON, PETITIONER-APPELLANT, v. CHAMBERLAIN MANUFACTURING CORP., RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 21, 1972
    Decided March 29, 1972.

      Mr. Edward B. Meredith argued the cause for appellant (Messrs. Meredith, Meredith & Chase, attorneys).

      Mr. Thomas J. Mannion, Jr. argued the cause for respondent (Messrs. Taylor, Biscliof, Williams & Martin, attorneys).
    Before Judges Goldmans, Halpeeít and Loba.
   Per Curiam.

Petitioner appeals from a County Court judgment affirming the dismissal of his claim petition by the Workmen’s Compensation Division. The basis for the denial of compensation was that while his injuries arose out of his employment they did not occur during the course of that employment. We affirm.

While in the employ of respondent company as a foreman, petitioner on numerous occasions had to reprimand one Sozio, a subordinate, for failure to wear the required safety glasses while working near dangerous machinery. Sozio did not readily accept the criticism and he on one occasion said to petitioner, “I’ll take care of your eyes later.” Petitioner voluntarily left respondent’s employ on April 3, 1968 to take advantage of what appeared to be a better job opportunity. Late in the evening of April 11, 1968 he visited a tavern in Burlington, N. J. He noticed that Sozio was present, but the two did not converse. Petitioner left the tavern in the company of a young lady sometime after 1 a.m. Sozio followed and, without justification, brutally beat and kicked petitioner, and in the course of doing so kept saying, “Remember me, remember me.” Thornton was hospitalized for some time and as a result of Sozio’s vicious attack suffers from a loss of vision in his right eye.

The compensation judge found that the assault and resulting injury arose out of petitioner’s employment, but did not occur in the course thereof because the employment relation had terminated ten days before Sozio’s attack. The County Court judge came to the same conclusion.

Petitioner contends that given the circumstances of this case and the development of our workmen’s compensation law, this court should now be prepared to award compensation on what has been termed a “delayed-action” injury. See 1 Larson, Workmen’s Compensation Law, §§ 39.31, 39.33, at 453.101-453.109 (1968) — this in light of the liberal construction our courts have given to New Jersey’s Workmen’s Compensation Act. We do not read the Larson text as clearly supporting an award where the employment relation, as here, ceased more than a week prior to the assault. Thus, cases like Crotty v. Driver Harris Co., 49 N. J. Super. 60 (App. Div. 1958), certif. den. 37 N. J. 75 (1958); Meo v. Commercial Can Corp., 80 N. J. Super. 58 (App. Div. 1963), and Filson v. Bell Tel. Labs, Inc., 83 N. J. Super. 185 (App. Div. 1964), decided by this court — these, among others cited by petitioner in support of his claim — have no application. Our courts have repeatedly quoted from Bryant, Adm’x v. Fissell, 84 N. J. L. 72, 77 (Sup. Ct. 1913), that an accident arises in the course of employment if “it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” See e. g., Hammond v. Great Atlantic & Pacific Tea Co., 56 N. J. 7, 11 (1970).

Petitioner cites only a single case, Gunn v. Accurate Forming Co., 89 N. J. Super. 308 (Cty. Ct. 1965), in which compensation was awarded despite termination of the employment relationship before the occurrence of the injuries. Petitioner there refused an order of a superior and as a result was fired. Supervisory employees attempted to prevent him from leaving the employer’s premises until they could make certain that he was not carrying away tools that did not belong to him. In the process petitioner was assaulted and sustained injuries. The court rejected the employer’s contention that it was not liable to pay compensation benefits for injuries suffered anytime after petitioner was discharged. The court found no applicable New Jersey precedent but indicated agreement with the view in other jurisdictions that “* * * compensation coverage is not automatically and instantaneously terminated by the firing or quitting of the employee. He is deemed to be within the course of employment for a reasonable period while he winds up his affairs and leaves the premises.” (at 311) Petitioner cannot bring himself within the narrow exception on which the Gunn result was based. lie was not injured while pursuing any activities in connection with leaving respondent’s employ, such as returning to the plant within a reasonable time to collect wages or retrieve his personal belongings.

For a ease which cuts sharply against petitioner’s argument that compensation is due for injury, inflicted at any time when there is not an employment relationship, see Fantasia v. Hess Oil and Chemical Corp., 110 N. J. Super. 360 (Cty. Ct. 1970), aff’d o. b. 113 N. J. Super. 229 (App. Div. 1971), certif. den. 58 N. J. 160 (1971). There decedent was accidentally struck by an automobile while picketing at the entrance of his employer’s premises after a lock-out. The County Court denied compensation, holding that the positional risk doctrine argument was inapplicable. The court held that

* * * In the ease at bar the employer-employee relationship no longer existed. The employer had no control over the employees’ activities, nor did he pay them. When the employer locked out the employees, it was similar to a situation where employees are laid off. [110 N. J. Super, at 362-363]

While the accident might have arisen out of the employment, the court said that it did not arise in the course of that employment — the relationship of employer-employee did not exist.

Affirmed.


text:
    HOUSING AUTHORITY, CITY OF TRENTON, PLAINTIFF-RESPONDENT, v. MATTIE GREEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 28, 1972
    Decided March 30, 1972.

      Before Judges Coneoed, Matthews and Eeitz.

      Mr. Laurence I. Tomar argued the cause for appellant {Mrs. Alice Ashley Costello, Director Legal Aid Society of Mercer County, attorney).

      Mr. Marie D. Kaplan, Jules J. Kelsey argued the cause for respondent.
   Per Curiam.

The parties concede the $15 attorney’s fee to be reasonable as a general matter. It was therefore properly contracted for. See Bergen Builders, Inc. v. Horizon Developers, Inc., 44 N. J. 435 (1965).

The fee could lawfully be contracted to be considered additional rent, for purposes of the summary dispossess act. See Vineland Shopping Center, Inc. v. De Marco, 35 N. J. 459, 470 (1961).

We find nothing in the federal or state statutes or applicable regulations involving low-rent housing policies which is contravened by the lease provision here challenged. It is entirely consistent with those policies that landlord housing authorities recoup from dilatory tenants the reasonable legal costs attendant upon necessary dispossess actions. Nor is there anything unconscionable or otherwise contrary to public policy in doing so by a lease stipulation that the reasonable attorney’s fees become additional rent due and owing by the tenant.

Other arguments advanced by defendant are found to lack merit.

Affirmed; no costs.


text:
    WAYNE VILLAGE TENANTS’ ASSOCIATION AND LEONARD BENNETT, INDIVIDUALLY AND AS A REPRESENTATIVE OF MEMBERS OF A CLASS, PLAINTIFFS-RESPONDENTS, v. WAYNE VILLAGE, A CORPORATION OF THE STATE OF NEW JERSEY, AND JAMES QUARRY AND EVELYN QUARRY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted March 6, 1972
    Decided March 27, 1972.

      Before Judges Collestee, Mintz and Lynch.

      Messrs. Cole, Geaney and Yamner, attorneys for appellants (Mr. Morris Yamner, of counsel).

      Messrs. Jeffer, Walter, Tierney, DeKorte, Uoplcinson & Vogel, attorneys for respondents (Mr. Jerome A. Vogel, of counsel and on the brief).
   Per Curiam.

On the return day of the order to show cause, the parties agreed that the matters in issue be considered presented as cross-motions for summary judgment.

Plaintiffs challenge the validity of the provision in the leases for the respective apartments which provides that “If any rent increase is allowed by governmental authorities having jurisdiction, tenant agrees to pay such increase from date granted.” The project was financed by an insured mortgage loan made by Federal Housing Authority (F.H.A.)

Wayne Village, owner of the garden apartment complex, submitted a formal request to the Department of Housing and Urban Development (under whose jurisdiction the F.H.A. falls) for an increase in rentals based on an increase in cost of operation, maintenance and taxes. The request was accompanied by a certified financial statement for the year ending December 31, 1969, including required profit and loss and project expense accounts. Formal approval for rental increases was granted on July 22, 1970. The tenants were notified that the permitted increases would become effective on September 1, 1970.

Plaintiffs allege in their complaint that they requested, but were refused, copies of the data furnished the governmental agency upon which the increases were allowed. They further allege that the increase in rentals was effected without notice and an opportunity to be heard, and therefore violative of due process of law.

The trial court denied plaintiffs’ motion for summary judgment but granted defendants’ motion for summary judgment upon the following terms and conditions:

2. * * *
(a) Defendant submit itself to complete discovery referable to the basis upon which it applies to the Federal Housing Authority (FHA) for a rental increase so as to afford plaintiff an opportunity to determine whether or not it wishes to assert a cause of action by way of amended complaint in this cause against defendant based upon tortious or fraudulent conduct which induced action by the FHA which action in turn had its impact upon and damaged plaintiffs.
(b) Discovery is hereby extended for a period of 45 days and plaintiff, if it so desires, shall file its amended complaint on or before June 1, 1971.
(e) That hereinafter, before defendant, Wayne Village, can apply to the FHA for a rental increase, it shall forward to each tenant at least 30 days prior to such application the precise factual foundation upon which the same is predicated.
3. All tenants who executed leases subsequent to the FHA approved increase contested herein are not affected thereby, and are remitted to such rental as they paid prior thereto.

Defendant appeals contending that the trial court erred in imposing the aforementioned terms and conditions. Plaintiffs did not cross appeal.

Initially, we note that the former bill for discovery has become obsolete. Lippmann v. Hydro-Space Technology, Inc., 77 N. J. Super. 497 (App. Div. 1962).

In Langevin v. Chenango Court, Inc., 447 F. 2d 296 (2 Cir. 1971) the court indicated that although there are countervailing considerations, it may be desirable for the P.H.A. to require the landlord to inform tenants of an application for an increase in rentals and to direct him to make the data which he submits to the P.H.A. available for tenants’ inspection, and to then submit a brief informal statement indicating the reasons for granting approval. Nevertheless, as Langevin says, such a procedure is not mandated by any relevant statute or by the due process clause of the Fifth Amendment. See also Hahn v. Gottlieb, 430 F. 2d 1243 (1 Cir. 1970); Fieger v. Glen Oaks Village, 309 N. Y. 527, 132 N. E. 2d 492 (Ct. App. 1956); Choy v. Farragut Garden's, 131 F. Supp. 609 (S. D. N. Y. 1955); Brookchester Community Ass’n v. Brookchester, Inc., 43 N. J. Super. 35 (App. Div. 1956), cextif. den. 23 N. J. 578 (1957); Brinkmann v. Urban Realty Co., 10 N. J. 113 (1953) is inapposite.

Accordingly, we find no basis in law lor the imposition of terms and conditions 3 (a), (b) and (c), and they are hereby stricken.

We are mindful of the fact that the fourth count in the complaint alleges that Wayne Village demanded increases under said provision in the lease from a number of tenants who executed leases subsequent to the increases granted by the governmental authority. As to them it is asserted that defendant has unclean hands and is estopped from demanding said increases. As already noted, the E.H.A. granted the rent increases on July 33, 1970. The tenants were notified of such increases on July 37, 1970. The estoppel urged by plaintiffs could be invoked only as to those tenants who executed leases between July 33, 1970 and July 37, 1970, i. e., before they were notified of the increases which had been allowed. The record does not support a finding that any tenant executed such a lease during that interim period. Accordingly, the terms and conditions set forth in the aforementioned paragraph 3 are likewise stricken.


text:
    CONCORD INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. CATHERINE MILES, INDIVIDUALLY, AND CATHERINE MILES, ADMINISTRATRIX OF THE ESTATE OF CHARLES MILES, DECEASED, BENJAMIN CENSULLO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF DAVID M. CENSULLO, DECEASED, ROBERTA S. MOORE, ADMINISTRATRIX OF THE ESTATE OF REBECCA MOODY, DECEASED, ATLANTIC CADILLAC-PONTIAC CO., A NEW JERSEY CORPORATION, CHARLES M. SEWELL, JULIAN J. MELONI AND RAE CAROLE BEUTTEL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 21, 1972
    Decided April 5, 1972.

      Before Judges Goldmanh, Halpern and Lora.

      Mr. Robert 8. Greenberg, argued the cause for appellant (Messrs. Serata and Kleiner, attorneys).

      Mr. Lewis B. April, argued the cause for respondent Benjamin Censullo {Messrs. Cooper, Greenberg, Katzman and Todd, attorneys).

      Mr. Marie Vasser, argued the cause for respondent Julian J. Meloni.

      Mr. John G. Uimmélberger, Jr., argued the cause for respondent Atlantic Cadillae-Pontiae Co. {Messrs. DeBrier and Wallen, attorneys).
   Per Curiam.

This is a declaratory judgment action brought by appellant Concord Insurance Company against its own insured, Catherine Miles, individually and as administratrix of the estate of her son Charles Miles, and others, claiming that it was not obligated under its automobile liability policy to defend or to pay any judgments obtained against the estate of Charles Miles who was driving his mother’s car when he was involved in a three-car accident which resulted in the death of Charles, David Censullo and Bebecea Moody, and injury to Julian J. Meloni.

In its complaint for declaratory judgment plaintiff contended that Charles Miles was driving his mother’s car without her consent, knowledge or permission, and without her authorization either express or implied, and hence was not an insured under the terms of the policy.

The pretrial order recited that plaintiff sought a declaration that it had no obligation under the terms of the policy, and set forth as its factual and legal contentions that at the time of the accident Charles Miles had no permission, express or implied, to operate Catherine Miles’ vehicle; that he was not a person insured under the terms of the policy, and therefore it had no obligation to enter a defense on behalf of either the estate or Catherine Miles in her capacity as administratrix of the estate, and should not be obligated to pay any judgments entered against them.

The trial judge, sitting without a jury, ruled that the burden of proof was upon plaintiff and not the claimants, and finding the proofs in equipoise, he held that it had failed to carry its burden of proof and thereupon entered the judgment here under appeal.

There is a divergence of judicial opinion on the question of which party carries the burden of proof in a declaratory judgment action brought by an insurance company seeking an adjudication of noncoverage.

The Declaratory Judgment Act, N. J. 8. A. 2A:16-50 et seq., is silent as to such burden of proof and it would appear that no New Jersey case has dealt with that issue where the insurer brings a declaratory judgment action.

The so-called New Hampshire rule, on which plaintiff relies, holds that the burden of proving that the use of the car was within the coverage of the policy is on the insurer’s adversary in a negligence action, and the mere reversal of the parties in the declaratory judgment action does not change that burden. Travelers Ins. Co. v. Greenough, 88 N. H. 391, 190 A. 129, 130 (Sup. Ct. 1937). In Borchard, Declaratory Judgments (2d ed. 1941), at 404-409, 407, it is stated that “the burden of proof in actions for a declaration is not automatically on the plaintiff * * * but on him who ‘without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence,’ or who asserts the affirmative of an issue.” 20 Appleman, Insurance Law and Practice, §• 11376 at 197-198, states that the burden of proof is not imposed according to the priority in taking legal steps to determine conflicting issues (citing the Greenough cáse); that the burden of proof is considered to rest where it would have been imposed if the insurer had chosen to defend a suit by the insured instead of bringing an action for declaratory judgment. See cases cited therein, and Annotation “Burden of proof in actions under general declaratory judgment acts/’ 23 A. L. B. 2d 1243 (1952); 22 Am. Jur. 2d, Declaratory Judgments, § 98 at 965 (1965).

However, there is ample authority that the burden of proof is the same as in ordinary actions at law or in equity: the person seeking the declaratory relief must prove his case, as must any plaintiff, and the burden of proof lies with him. Anderson on Declaratory Judgments (2d ed 1951), § 375; 62 Harv. L. Rev. 787, 836 (1949); Continental Cos. Co. v. Padgett, 1.23 F. Supp. 847 (D. C. S. C. 1954); Liberty Mutual Ins. Co. v. Sweeney, 216 F. 2d 209 (3 Cir. 1954), citing with approval 6A Moore’s Federal Practice (2d ed. 1953), § 57.31; Pacific Portland Cement Co. v. Food Machinery and Chemical Corp., 178 F. 2d 541, 547 9 Cir. 1949).

As stated in Appleman, op. cit.,

The question as to who must sustain the burden of proof depends upon the condition of the pleadings and character of the issues at the time the question is presented. Where the action is brought by the insurer, the burden has frequently been placed upon it, just as upon any other plaintiff, particularly where the defendant seeks no permanent relief.

See also Bor chard, op. cit., at 404-405 to the same effect.

Generally, the language of the omnibus clause of an insurance policy is to be construed broadly in favor of the insured and injured persons to effectuate the strong legislative policy of affording financial protection to innocent victims of an automobile accident. Mazzilli v. Accident & Casualty Ins. Co. of Winterthur, 35 N. J. 1, 7 — 8 (1961); Chicago Ins. Co. v. Security Ins. Co. of Hartford, 111 N. J. Super. 291, 295 (App. Div. 1970).

It is our considered opinion that we should apply the general rule that one who brings an action of this kind has the obligation of proving the facts alleged in the complaint.

We agree with the trial judge that plaintiff failed to establish that Charles Miles was driving his mother’s car without either her express or implied permission. At best, and as the judge observed, the proofs were in equipoise. The only witness called was Mrs. Miles, who testified that she had never given her son permission to drive and, in fact, had told him on prior occasions that he could not use the car, and that the car had been taken on the day in question without her knowledge or consent. However, on cross-examination Mrs. Miles admitted answering sworn interrogatories wherein she indicated permission had been given to her son on previous occasions to drive the car for his own pleasure and convenience.

Defendant Julian J. Meloni, a passenger in the Miles’ automobile, relying upon representations by appellant’s agents, partially settled his case with the insurance carrier for co-defendant Atlantic Cadillae-Pontiac Co. Appellant now argues that Meloni, as a stranger to the insurance contract between it and Mrs. Miles, cannot get the benefit nor does he have a legal right to an estoppel against it. We do not agree. Meloni’s attorney had received a letter from plaintiff dated June 13, 1968 containing an indemnification agreement for payment of $2,000 under the medical coverage of the Miles’ policy. Meloni had shortly before requested his attorney to settle a portion of his case under the policy of co-defendants Atlantic Cadillac, and, before doing so, his attorney spoke to plaintiff’s attorney and informed him of that desire. At no time did plaintiff indicate that it was not going to pay under the Miles’ policy and, accordingly, payments were made by Atlantic Cadillac under its policy. Subsequent to the settlement plaintiff for the first time indicated it was going to disclaim under the Miles’ policy. Under the circumstances, the trial judge properly found an estoppel as well as prejudice to defendant Meloni’s position.

Affirmed.


author: Herbert, J. S. C.

text:
    DEREK THOMAS AKRIDGE AND THE BRONZE SHIELDS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. ANTHONY BARRES, CHIEF OF POLICE, CITY OF NEWARK, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 29, 1972.

      Mr. John C. Love for plaintiffs.

      Mr. Althear A. Lester, Deputy Corporation Counsel, for defendant (Mr. William H. Walls, Corporation Counsel, attorney).
   Herbert, J. S. C.

Plaintiff Akridge is a Hewark policeman. He challenges the validity of Special Order Ho. 71-15 which was issued by defendant chief of police on March 23, 1971 and which purports to set standards of appearance for policemen by regulating hairstyles on head and face. According to the complaint, The Bronze Shields, Inc. has joined as a plaintiff on behalf of policemen who are its members, but the only specific grievance alleged is the impact of the order upon plaintiff Akridge. Special Order Ho. 71-15 is as follows:

POLICE DEPARTMENT NEWARK, NEW JERSEY

PUB 3-1 March 23, 1971

SPECIAL ORDER PROM TEE CEIEF OF POLICE NO. 71-15

TO: ALL COMMANDS

PROM: CHIEF OP POLICE

SUBJECT: STANDARDS OP APPEARANCE —

HAIR STYLE — FACIAL HAIR GROWTHS

1. PURPOSE

The purpose of this order is to set standards of appearance for hair styles and facial hair growths worn by Police Officers. The tolerances set forth represent a reconciliation between the current acceptance of fuller and longer male hair styling and the need for establishing clearly defined limits within which our Department can maintain its uniformed identity.

2. REQUIREMENT

The standards as defined are a compilation of recommendations made by Divisional Commanders after consultation with subordinates at all functional levels. The tenets of this order are binding on all Police Officers except when their assignments or duties permit a departure from the requirements. However, any departure must be approved by the Divisional Commander.

3. STANDARDS

Effective this date, all male Police Officers shall regulate their hair style and facial hair growths to conform with the standards for on duty appearance as listed in this section.

a. Hair

(1) The style shall be of medium length and fullness.

(2) The duck tail length is prohibited.

(3) Bushy hair protruding from the sides or back of the head, when a hat is worn, is prohibited.

(4) A neat pattern on the rear of the neck shall be maintained. The growth must be neatly trimmed near the collar line and shall not extend over a shirt or coat collar.

b. Sideburns

(1) The length shall not extend beyond the tip of the ear lobe.

(2) The width shall not exceed 1%-inch at the broadest point.

(3) The growth shall not be more than 14-inch in depth.

c. Mustache

(1) The pattern shall be neatly trimmed.

(2) The extent of growth shall be limited to 14-inch below the line of the corner of the mouth.

(3) The thickness shall be %-ineh in depth and not appear bushy.

(4) The ends may not be waxed or twisted.

d. Full Beards Goatees

Full beards, goatees or other growths of hair below the lower lip, on the chin, or lower jaw bone area are prohibited.

e. Glean Shaven

Except for the areas of facial growth permitted by this order, all members shall be clean shaven.

4. RULES AND REGULATIONS

This order supplements the Rules and Regulations concerned with members’ personal appearance. Any conflict shall be resolved in favor of the standards set by this order.

/s/ Anthony Barres

ANTHONY BARRES CHIEF OF POLICE

AB :TWM: jh

The order was issued after a series of meetings at which its subject matter was discussed. Plaintiff Akridge participated in some of the discussions. The contract of J anuary 1, 1971, making Local No. 3 of the Patrolmen’s Benevolent Association the exclusive representative of all patrolmen for collective negotiations, requires an opportunity for discussion before rules and regulations are put into effect, and the meetings in question were obviously held to comply with that requirement. The question of new regulations came up because a number of men were complaining that the existing (and stricter) rules were not suitable for the times.

The complaint in the present case was filed on April 27, 1971. It alleged that plaintiff Akridge had been advised he would be suspended on that date unless he had his hair trimmed to comply with the order. Preliminary relief was applied for but denied on the ground that Akridge should exhaust his administrative remedies before suing for an injunction. On May 10, 1971, Akridge was given a hearing before the Police Director on the charges which had been filed against him. Those charges go into considerable detail but can be described in a general way as alleging the following conflicts with Special Order No. 71 — 15: Akridge has sideburns which are too long, too wide and too bushy; has a mustache which extends more than below the corners of his mouth; has a goatee, and has refused to obey commands that he bring his appearance into conformity with the provisions of Special Order No. 71-15. The result of the hearing before the Police Director was a finding that Akridge was guilty of the charges made against him. He was fined five days’ pay and given the option of working off the fine.

Since the adverse decision of the Police Director plaintiffs’ application for injunctive relief has been renewed. It has been agreed by counsel that the pleadings and affidavits filed in this case, together with the transcript of the hearing before the Police Director, shall be considered as the full record, thus making it possible to treat the case as a summary proceeding under B. 4:67, and reach a final decision.

Eor defendant it is argued that administrative remedies have not been completely exhausted. By way of answer to that, plaintiffs point to H. J. S. A. 11:2A-1, which by implication rules out Civil Service Commission review of penalties of five days or less. They also cite Perrapato v. Rose, 83 H. J. Super. 245 (App. Div. 1964), in which it was held that a policeman who had been suspended for five days was entitled to have the legality of the suspension reviewed by the courts without first going to the Civil Service Commission. By a proceeding in lieu of prerogative writs he succeeded in having the suspension held unlawful and set aside. It appears that the present ease might have been brought in the Law Division as a proceeding in lieu of prerogative writs. However, no motion for transfer has been made and it will be economical of time and effort to decide it here.

Akridge has not complied with Special Order No. 71-15 — that is conceded. It may be added that the growth of hair on his face is not in conflict with the order in any extreme or startling way. I have seen him in court and on those occasions he gave the impression of being well groomed.

There have been many cases dealing with orders and regulations to limit hair styles of schoolboys. A note in 84 Harv. L. Rev. 170,2 (May 1971) collects and discusses at some length cases of this type. More recently the United States Supreme Court, without any opinion by the majority, denied certiorari in a case from the Ninth Circuit holding a school’s regulations concerning length of hair to be enforceable. Mr. Justice Douglas voted to allow the writ and filed a dissenting opinion. Olff v. Past Side Union High School District, 404 U. S.-, 92 S. Ct. 703, 30 L. Ed. 2d 736 (1972). In the footnotes to that opinion a great many cases are collected and it is pointed out that in a total of over 50 reported cases which squarely presented the issue the student has won about half. One case listed by Justice Douglas is especially interesting because of its age: Ho Ah Kow v. Nunan, 12 Fed. Cas. p. 252 (C. C. D. Cal. 1879). There an alien Chinese was awarded damages against the Sheriff of San Francisco County under the Civil Eights Act because his queue had been cut off when he commenced serving a five-day jail sentence for a petty offense.

The cited note in the Harvard Law Review points out that courts have had some difficulty in determining what constitutional rights are involved in this area. By way of conclusion, the note writer comments:

In short, whether one proceeds under a first amendment theory or under the more basic principle of a right to determine personal appearance, it would seem that some room for personal choice in this area is dictated by the Constitution. The fact that a right to grow long hair does not rest comfortably in any niche of the Bill of Rights does not mean that any state regulation of student appearance should pass muster. [84 Sarv. L. Rev. at 1712]

During the course of the testimony which he gave at the disciplinary hearing before the Police Director, Akridge, having been asked about his reasons for having hair on his face in patterns which conflict with Special Order No. 71-15, said this:

I think that I’m expressing my individual pride as a black man and also it helps me to relate with the people that I’m serving, I mean it is a definite fact since this trouble has come to the notice of the public, it is a definite fact since I’ve been in that patrol car I’ve received more support and solid backing from the community to stand on this issue and I’ve received a lot of support to continue to be a good policeman and I think this issue has proven without the shadow of a doubt in my mind that the community I serve wants me to identify with them as one and this is my inspiration for this whole trial, this whole issue is inspired by the fact that the people want me, as a black policeman, to identify as their fellow man and their fellow brother and I think this is what police work is all about.

Decisions on the regulating of students5 hair, although interesting, really have no application here. Discipline, to a degree unknown in schools, is a generally accepted characteristic of a competent municipal police force. McQuillin, Municipal Corporations (3d ed. rev. 1963), § 45.16 at 675, says:

Members of a police force and its responsible officers in many resjjects constitute a military organization. Discipline must be enforced, and members of the force must surrender individual powers and freedom of action in favor of undivided allegiance to tlieir public duty. As has been seen, reasonable rules and regulations for the government and discipline of the police force may be promulgated and are binding on members of the department.

This section of McQuillin was cited with approval in Newark v. Massey, 93 N. J. Super. 317, 323 (App. Div. 1967).

No reported case has been found in which the growth of hair on the head or face of a policeman was at issue. However, a rule restricting a policeman’s freedom to speak has been uphold and enforced. McAuliffe v. Mayor, etc. New Bedford, 155 Mass. 216, 20 N. B. 517 (Sup. Jud. Ct. 1892). In that case a policeman violated a rule of his department by soliciting money to be used for political purposes and by becoming a member of a political committee. Because of the violations- he was removed from office. In his suit for reinstatement he argued, among other things, that the rule he had violated was invalid because it invaded his right to express his political opinions. Concerning the claimed invasion of rights, Justice Holmes said for the court:

One answer to this argument, assuming that the statute does not make the mayor the final judge of what cause is sufficient, and that we have a right to consider it [citations], is that there is nothing in the constitution or the statute to prevent the city from attaching obedience to this rule as a condition to the office of policeman, and making it part of the good conduct required. The petitioner may have a constitutional right to talk polities, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here. [29 N. E. at 517]

I can find no basis at all in our statutes- or in the reported eases for holding that the city’s powers to create and 'maintain a uniformed police force cannot include the power to regulate the appearance of its policemen by writing rules about their hair. If bizarre styles should be ordered, then presumably the order would be subject to question as an arbitrary action, but we have nothing of the sort here. Special Order No. 71-15 on its face appears reasonable, and more importantly in a legal sense, appears to lie well within the scope of the responsibilities given to those charged with running the Newark Police Department. It is no more for a court, than it is for Akridge, to say that the order should allow sideburns to be a little thicker or mustaches a little longer.

Final judgment will be entered in favor of defendant.