text:
    COUNTY OF UNION, A BODY POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN T. BENESCH, SUPERINTENDENT, HOUSING AND INSPECTIONS, CITY OF ELIZABETH, NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 16, 1968
    Decided September 30, 1968.

      Before Judges Confokd, Kilkenny and Leonakd.

      Mr. Edward W. McGrath argued the cause for appellant {Mr. William J. McCloud of counsel and on the brief).

      Mr. Leonard Rubin argued the cause for respondent (Mr. John P. Higgins, attorney).
   The opinion of the court was delivered

Per Curiam.

Defendant appeals from a summary judgment of the Law Division ordering him (a) to issue a building permit to plaintiff to make rectifications, repairs and alterations to the Union County Parking Garage and Juvenile Detention Center, provided plaintiff’s plans and specifications filed comply with the building code of the City of Elizabeth; (b) to make the necessary inspections in accordance with the city’s building code “as to [sic] rectifications, repairs and alterations proceed,” and (c) upon completion by plaintiff of the rectifications, alterations and repairs in accordance with the building code of the city to issue a certificate of occupancy. Defendant’s cross-motion for summary judgment in his favor was denied.

The city argues that County of Union is a “superior' authority” to City of Elizabeth in the political subdivision hierarchy and, therefore, its building code is inapplicable to rectifications, repairs and alterations of buildings on county-owned property within the city. The city also maintains that a county may not require a municipality to make inspections of county buildings during the progress of construction and thereafter be responsible for adherence by the contractors and agents of the county government to the municipal building code, or one adopted by the city by reference, such as the Standard Building Code of New Jersejr. Elizabeth has adopted the latter by reference, pursuant to N. J. S. A. 52 :27C-56.

. Instead of accepting the city’s disclaimer of all authority over the construction and repair of county buildings, the county maintains, as the trial court found, that a county government is required by statute to obtain a building permit from the municipality and, as a consequence, this entails compliance with the local building code, inspections by the city’s inspectors and issuance of a certificate of occupancy upon completion of the work in accordance with the building code.

As a general rule, a superior public authority is immune from municipal ordinances. Eor example, New Jersey Highway Authority was held not subject, in the construction of service areas, to local zoning and building requirements. Town of Bloomfield v. New Jersey Highway Authority, 18 N. J. 237 (1955). “There is no doubt whatever as to the power of the Legislature to immunize its public Authorities from the provisions of local zoning and building restrictions.” Id., at p. 244. So, too, in Hill v. Borough of Collingswood, 9 N. J. 369 (1952), it was held that the Camden County Park Commission was not amenable to the zoning power of the Borough of Collingswood although the park lands were within the municipal boundaries. And in Tim v. City of Long Branch, 135 N. J. L. 549 (E. & A. 1947), the zoning ordinance of the City of Long Branch was held not binding on the National Housing Agency in leasing and remodeling property pursuant to the provisions of a federal act.

Where the immunity from local regulation is claimed to exist in favor of a superior authority, “the presumption is that such immunity was intended in the absence of express statutory language to the contrary.” Aviation Services v. Board of Adjustment, Hanover Tp., 20 N. J. 275, 282 (1956).

The trial court found in N. J. S. A. 40 :23-6.20, albeit by implication, the necessary statutory language requiring Union County to obtain a building permit from the City of Elizabeth for the proposed rectifications, repairs and alterations to the county garage and juvenile detention center. That statute, adopted as L. 1948, c. 413, provides:

“No county having a population in excess of four hundred thousand inhabitants other than a county of the first class, or the board of chosen freeholders thereof or any of its contractors, shall be required to pay any municipal fee or charge in order to secure a building permit for the erection or alteration of any county building or part thereof from the municipality wherein such building may be located.”

Concededly, Union 'County has a population in excess of 400,000 inhabitants and is not a county of the first class.

In adopting L. 1948, c. 413 (N. J. S. A. 40 :23-6.20) the Legislature rejected the avowed policy of Senate Bill No. 122 for 1948, which proposed that no county should be required to secure approval of its plans and specifications for the erection or alteration of any county building by the municipality wherein such building may be located, and that no county or contractor doing any work in connection with county buildings should be required to secure a building permit for such work from the municipality. The statement accompanying that bill averred that its purpose was to remove any doubt which might exist concerning the obligation of a county to obtain local building permits.

We agree with the trial court that the legislative intent of N. J. S. A. 40 :23-6.20 was to declare the need of a county to obtain a municipal building permit but to eliminate the payment of fees therefore by counties of the class designated. The contemporary failure of the Legislature to adopt Senate Bill No. 122 and its decision to treat the subject by language aimed solely at absolving specified counties from paying a fee for the building permit impel the conclusion that counties must apply for a building permit, and immunity from payment of a fee for the permit has been granted by the Legislature to counties such as Union, within the specified class.

As the trial court properly observed, if counties were not required to obtain any municipal building permit, N. J. S. A. 40 :23-6.20 would serve no useful purpose. The trial court said: “Courts cannot impute to the Legislature an intent to enact meaningless legislation. There is a presumption against useless legislation.” See cases cited, 98 N. J. Super. 167, at p. 173 (Law Div. 1967).

The parties themselves recognized this interpretation of the statute when this county building was originally constructed. As the record shows, the contractor then applied to the city for a building permit and it was issued. The city charged no fee for the permit in reliance upon advice of the city’s attorney that N. J. S. A. 40 :23-6.20 precluded the charging of any fee.

In Parking Authority of City of Trenton v. City of Trenton, 40 N. J. 251 (1963), the Supreme Court held that the city was empowered to require payment of a building permit fee from the Parking Authority. N. J. S. A. 40 :23-6.20 is cited in this case as an example of a statute providing “for the exemption of certain counties from the requirement of paying a fee for a municipal building permit in connection with the construction of county buildings.”

In our view the city’s real grievance, as developed at oral argument, lies in that part of the judgment which orders it to make inspections “as the rectifications, repairs and alterations proceed.” It is one thing for the court to direct an exercise of the municipal function, but quite another to order how it shall be done.

We agree that, insofar as the affirmative rights of a builder subject to a building code are concerned, the matter of inspections should be left to the discretion of the city official charged with that responsibility. The court will order the exercise of a discretionary function but will not interfere with or control the manner of its exercise. Switz v. Middletown Tp., 23 N. J. 580, 587—589 (1957). A private builder would be entitled to a building permit, if his filed plans and specifications do not violate the building code. He would be entitled to a certificate of occupancy upon completion of the work, if violations of the code are not found to exist. But a private builder would not be entitled to a court order, in the form of a mandamus, commanding the municipal building inspector to make periodic inspections as the work proceeds. A builder has or should have his own architect, engineer and clerk of the works to see to it that the building operation is carried on in accordance with the plans, specifications and building code. The same rules are equally applicable in the construction of a county building.

Our examination of the city’s building code with reference to the matter of inspections shows that by section B-124.0 the building official may waive examination of the plans and field inspection of the construction, in whole or in part, for any buildings or construction operation under the procedure therein described. This confirms our view that field inspections by the municipal building inspector ought not to be made mandatory by order of the court. See too section B-113.3 allowing the building official to accept reports of inspections of authoritative and recognized services or individuals.

The judgment under review is modified to provide that defendant shall issue a building permit to the county, if the filed plans and specifications comply with the city’s building code, and shall thereafter process the matter under and pursuant to the building code, but without fee to be paid by the county. No costs.


source: Caselaw Access Project

author: Kilkenny, J. A. D.

license: Public Domain

text:
    VICTORIA A. HILL, PLAINTIFF, LOUISE C. HILL; VERNON E. DAVIS, JR. AND JAMES CROSBY DAVIS, MINORS BY THEIR FATHER AND GUARDIAN AD LITEM, VERNON EARL DAVIS AND VERNON EARL DAVIS, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS, v. FREDERICK O. MACOMBER; CHARLES C. HILL, ADMINISTRATOR c. t. a. OF ESTATE OF CROSBY M. HILL, DECEASED, DEFENDANTS-RESPONDENTS, AND ALBERT E. BARRY, DEFENDANT-APPELLANT. CHARLES C. HILL, ADMINISTRATOR c. t. a. OF THE ESTATE OF CROSBY M. HILL, DECEASED, PLAINTIFF-RESPONDENT, v. FREDERICK O. MACOMBER, DEFENDANT-RESPONDENT, AND ALBERT E. BARRY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1968
    Decided October 1, 1968.

      Before Judges Confoed, Kilkenny and Mintz.

      Mr. Maurice 7. Cole, Jr., argued the cause for appellant (Messrs. Cole, Koury, Cole & Tighe, attorneys).

      Mr. Gerald Weinstein argued the cause for respondent Frederick O. Maeomber (Messrs. IAoyd, Megargee, Steedle, Weinstein & Horn, attorneys).

      Mr. Donald R. Taggart argped the cause for respondents, Louise C. Hill, Vernon E. Davis, Jr. and James Crosby Davis.

      Mr. Michael I). Varbalow argued the cause for respondent Charles C. Hill, administrator c. t. a. of Estate of Crosby M. Hill, deceased.
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Trial of these consolidated personal injury and death actions resulted in substantial verdicts in favor 'of plaintiffs and against defendants Maeomber and Barry, except that the $7,500 verdict in favor of Victoria A. Hill is against Maeomber alone. Barry’s motion-for -a new trial was denied. Barry appeals from the judgment based on the verdicts, against him.

.• Maeomber has .not appealed. His position on this appeal is that the trial court did not commit error and the judgment should ,be affirmed.

We reserved, pending . oral argument of the appeal, a motion to dismiss Barry’s appeal made by plaintiff Charles C. Hill, administrator c. t. a. of the estate of Crosby-M. Hill, deceased.- We now' deny- that motion.' We are satisfied that the technical objection as to the caption of Barry’s notice of appeal, in which the' title of the consolidated action brought by movant was not mentioned, does not deprive this court of jurisdiction to hear Barry’s appeal from the' judgment in that case or warrant dismissal of his appeal from the result of that action. The movant was timely served with the notice of,appeal.. In the body of the notice of appeal it is clearly manifested that Barry is appealing “from the whole of the final judgment entered- * * * on October 9, 1967” in favor of the several plaintiffs named, including expressly “Charles C. Hill, administrator c. t. a. of the estate of Crosby M. Hill, deceased.” The specified judgment, generally captioned the same as that on Barry’s notice of appeal, included the awards in favor of the plaintiff representative of the estate as to both claims made by him.

We touch briefly on the broad outlines of this three-car, successive collision accident to put the issues in proper perspective.

On February 28, 1965, a clear dry day, about 6 :50 p.m., Crosby Hill was driving his automobile south on Route 50 near Mays Landing, New Jersey. His daughter Victoria, then about 21 years old, was in the right front passenger seat and was holding her two-year-old nephew James Davis on her lap. Louise Hill, Crosby’s wife, and his other grandson, seven-3rear-old Vernon E. Davis, Jr., were in the rear of the car, with Louise on the left and Vernon on the right. There was testimony that at that time and place an automobile operated by defendant Macomber northerly along Route 50 veered across the white line separating the northbound and southbound traffic and struck the Hill car head-on in the southbound lane. Both vehicles were then traveling at a speed of 40 to 50 miles per hour.

The impact between the Hill and Macomber cars was undoubtedly a heavy one. The lack of skidmarks in the roadway, the speed at which each vehicle was traveling before they met head-on, the physical damage to the front of each car as demonstrated by the photographs in evidence, and the debris in the southbound lane of Rout 50 left by the collision —■ all attest thereto. Trooper Bellarosa of the State Police was at the Mays Landing barracks at about 6:50 p.m. on that Sunday evening, about a mile or a mile and a half away and, as he testified, he heard a crash and went down the road to investigate the accident. •

Following the initial impact, Victoria Hill unfastened her seat belt and got out of the car. She started to the back of her father’s car when there was “another heavy crash,” according to her testimony. She stood for a few seconds until she gathered herself together and then went back to her car to find James. In her words, “he was hanging out of the car with his head out and his feet on the seat.” He had not been in that position when she left the ear. She took him up and started down the street for help when a man came up. Trooper Bellarosa was right behind him. She was then taken by ambulance to the hospital.

In that short interval while Victoria was out of her father’s car — a matter of a few minutes at most — Barry, also proceeding northerly on Route 50, drove his automobile into Macomber’s disabled car, striking its left rear with the right front of Barry’s. The path Barry’s automobile traveled after striking the Macomber vehicle was not testified to by any eyewitness. But when the trooper came upon the scene within minutes of the accident he observed and testified to the location of all three cars.

According to Trooper Bellarosa, the rear end of the Ma-comber car was in the southbound lane; the vehicle was facing in a westerly direction at a right angle, and part of it protruded on the shoulder. No portion of Macomber’s automobile was then in the northbound lane. The Hill car was at least partially off the road, on the shoulder of the road against or near a telephone pole, as we understand the record. Barry’s automobile was resting against Hill’s vehicle. In the trooper’s words, “they were intermingled. There was damage to the right front of the Hill vehicle and it was actually interlocked with the left front door of the Barry vehicle. * * * It was intermingled so that the wrecker had to take them apart.” (Emphasis added)

Barry’s argument on appeal does not challenge the jury’s finding that he was negligent. Indeed, there was ample evidence to support such a finding. He, as well as Macomber, had been in each other’s company and had been drinking before the accident. The trooper detected a “strong odor of alcohol” about both Barry and Macomber at the scene. The jury could find in Barry’s own recital of the happening enough to predicate a finding of negligence on his part.

Rather, Barry’s primary contention is that there was insufficient proof to show that his alleged negligence was a proximate cause of the injuries to plaintiffs. He claims error in the trial court’s refusal to grant his motion to dismiss on that ground.

Since Victoria’s injuries were entirely the result of the first impact between the Kill and Macomber automobiles — she alone was outside her father’s ear at the time of the second, successive collision — the trial court properly limited her right to recovery against Macomber. Nobody questions that trial ruling. Barry’s argument is restricted to the other persons who were still in Hill’s car when the second collision occurred. Barry maintains that the first Maeomber-Hill impact was solely responsible for the injuries, or in the alternative, the jury should have apportioned the damages between the two incidents.

The jury could properly find from the evidence that Barry’s car collided with Hill’s automobile and this impact was a substantial one. The trooper testified that the Barry and Kill vehicles were “intermingled” and so “actually inter-locked * * * that the wrecker had to take them apart,” and that his study of the accident scene and investigation led him to the conclusion that the impact between those vehicles was “heavy.” To this may be added Victoria’s testimony that the child, whom she had left in the car, was seemingly half-propelled out of the car following the second crash.

We are mindful of Barry’s argument that both Victoria Hill and Vernon Davis, Jr. gave testimony from which a jury could find that the Barry-Hill impact was not severe. Victoria testified that after the second crash she did not observe any movement in her father’s ear, even though she was standing outside it and only an arm’s length away. The boy testified that he felt only a “jerk” after the second crash. However, it was for the jury to decide from all the evidence whether the Iiill-Barry impact was severe enough to be causative of or contributory to the injuries sustained by the persons who remained in the Hill vehicle following the HillMacomber crash.

The real difficulty in the case stems from the absence of proof as to what injuries were suffered in each collision. The Macomber-Hill collision could have caused all the injuries sustained by plaintiffs. In the case of Victoria Hill, it did. In that instance, recovery by her was properly against Macomber alone, as noted above. But as to the other injured plaintiffs, circumstances, precluded testimony by them as to what injuries were first caused by Macomber’s negligence as contrasted with those successively caused by Barry’s negligence. Crosby Hill never regained consciousness after the first collision with Macomber and died four hours later at the hospital. Louise Hill suffered amnesia following the initial impact and was unable to give helpful testimony. Victoria Hill gave no testimony as to the injuries sustained by the several passengers in the Hill car, other than those relating to herself. The two-year-old boy, James Davis, was too young to testify. His seven-year-old brother, Vernon, gave very limited testimony, none of which attempted to separate his injuries between. the two collisions with the Hill vehicle.

Neither Macomber nor Barry testified to the injuries sustained by the passengers in the Hill automobile. This was due to their own dazed condition and injuries.

■ There was medical testimony as to the nature and extent of the injuries sustained by the several persons in Hill’s automobile, but there was no allocation of the injuries to the first collision of the Macomber and Hill cars, or of those resulting from the collision of the Barry and Hill automobiles. .

í Crosby Hill died as the result of “multiple injuries.” These included a crushed chest, “hemothorax,” multiple fractured ribs on the right side, “pneumo-thorax,” a head injury and various internal injuries. The steering wheel, behind which Hill had been sitting, was broken and this probably caused decedent’s flailed chest. There was no proof that the first collision caused the steering wheel to be broken. That this happened might very well be. Dr. Eoris, who attended Hill at the hospital when he was in a coma, concluded that Hill died as a result of the multiple injuries, and not just because of his chest injuries.

Dr. Godfrey asserted in response to a hypothetical question that two blows would be more likely to produce severe damage than would one, because of the damage already sustained as a result of the first impact. lie agreed that a minor bump or simple jerk, would not tend to cause the effects seen on the decedent.

We need not detail the injuries suffered by the other plaintiffs. They were serious in each instance. As in the case of decedent, a severe blow or severe blows would be needed to cause them. Beyond their opinion that forceful impacts were necessary, the doctors were not able to separate the injuries or their end results and attribute them to the first collision rather than to the later one. If these medical experts were not able to do so, it follows that a jury could not reasonably do so. Any attempt on its part to apportion the damages would reduce itself to sheer speculation. .

The trial judge properly denied Barry’s motion to dismiss, based as it was on the ground that plaintiffs had failed to prove that his negligence was the proximate cause of the injuries to plaintiffs. Whether proximate cause exists is simply “a question- of whether the ordinary mind, guided by logic, common sense, justice, policy and precedent, would consider that cause appears in a cause-and-effect context.” Miehl v. Darpino, 99 N. J. Super. 1, 9 (App. Div. 1968). “Where there is a factual dispute as to the events and circumstances which caused the injuries, proximate cause is a jury question.” Melone v. Jersey Central Power & Light Co., 18 N. J. 163, 175 (1955).

The trial judge had instructed the jury as to Barry’s claim that plaintiffs’ injuries resulted from the initial collision between the Hill and Macomber automobiles, and not from any negligence on his part. The jurors were told that plaintiffs had the burden of proving by the greater weight Of the credible evidence not only that Barry was negligent, but also that there was a proximate causal relationship between that negligence and the injuries. They were instructed that, if more than one defendant was negligent, there could be no recovery against one deemed to be1 negligent, “if his negligénce was not a substantial factor in producing the accident or injuries.”

To insure a correct verdict, the court submitted interrogatories to be answered by the jury. The answers demonstrated its finding that Macomber and Barry were each guilty .of negligence, and that the negligence of each — except as to Victoria — was a proximate cause of the accident and inT juries.

Barry’s main claim is that the jury should have been given the opportunity to apportion the damages between him and Macomber, holding him liable only for the damage specifically caused by, or the aggravation of injury resulting from negligence on his part. The difficulty with Barry’s position is that the jury could not find from the evidence before it any valid basis for an apportioning of damages, or for calculating the factor of aggravation, absent proof of the nature and extent of injuries pre-existing which were aggravated by the second collision.

The majority view in our country in cases similar to the instant one, where there are collisions in rapid succession producing a single end result, and no proof as to what damage was separately caused by each collision, is to hold both tortfeasors jointly and severally responsible. See Annotation, 100 A. L. R. 2d 16 (1965). Although concurrent tortfeasors generally are not jointly and severally liable where their acts caused distinct and separate injuries, or where some reasonable means of apportioning the damages is evident, the negligent driver of the automobile in the successive impact has been held jointly and severally liable for all of plaintiff’s injuries, if the injuries are “indivisible” and the liability therefor cannot be allocated with reasonable certainty to the successive collisions. This has come to be known as the “single indivisible injury” rule. Por some cases in which it was applied, see Maddux v. Donaldson, 362 Mich. 425, 108 N. W. 2d 33, 100 A. L. R. 2d 1 (Sup. Ct. 1961); Holtz v. Holder, 101 Ariz. 247, 418 p. 2d 584 (Sup. Ct. 1966); Berryman v. People’s Motor Bus Co., 228 Mo. App. 1032, 54 S. W. 2d 747 (Ct. App. 1932); Brantley v. Couch, 383 S. W. 2d 307 (Mo. Ct. App. 1964).

This doctrine is more conducive to justice than the old rule which precluded all recovery simply because plaintiff was unable to prove what damage each of two or more tortfeasors did. See Adams v. Hall, 2 Vt. 9 (Sup. Ct. 1829), where an owner of sheep suffered loss to his flock through the depredation of two dogs, separately owned. In the absence of testimony as to which dog killed which sheep, neither owner was held liable.

In these days of chain collisions, it is better that a plainiff, injured through no fault of his own, should be compensated by both tortfeasors, even though one of them may pay more than his theoretical share of the damage which his wrong has helped to create, than that the injured party have no recovery. Our courts have seemingly favored this more modern policy. See Ristan v. Frantzen, 14 N. J. 455 (1954) and Matthews v. Delaware, L. & W. R. R. Co., 56 N. J. L. 34 (Sup Ct. 1893).

In Restatement, Torts (2d ed. 1965), § 4334 provides that damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. That latter approach was not possible here in the light of the evidence before the jury. Section 433B provides that where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to apportionment is upon each such actor. The evidence here did not demonstrate any such capability of apportionment. Barry did not sustain the burden required of him. Accordingly, the trial court’s rulings on the issues of apportionment and limitation of recovery for mere aggravation were correct.

So, too, we find no basis for reversal in any of the other grounds urged by Barry. The trial court’s submission to the jury of its own special interrogatories was a proper exercise of judicial discretion. The rejection of Barry’s special interrogatories was also justifiable under all the circumstances.

The judgment is in all respects affirmed.


author: Per Curiam.

text:
    JOHN SIVOLELLA, PLAINTIFF-APPELLANT, v. HOWARD YEAGER, PRINCIPAL KEEPER, NEW JERSEY STATE PRISON AT TRENTON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted September 16, 1968
    Decided October 1, 1968.

      Before Judges Coxeord, Kilkexxy and Leoxard.

      Mr. John Sivolella, plaintiff-appellant, pro se..

      Mr. Arthur J. Sills, Attorney General of New Jersey, attorney for defendant-respondent (Mr. Eugene T. Jlrhaniak, Deputy Attorney General, of counsel).
   Per Curiam.

Sivolella was sentenced on November 18, 1965 in Passaic County upon his conviction of bookmaking to a term of 2 to 3 years in State Prison and ordered to pay a fine of $1,000; and to concurrent terms of 1 to 2- years on a charge of possession of lottery slips and of 1 to 2 years for working for lottery. On each of these latter he was also ordered to pay a fine of $1,000. In brief, the Passaic County sentences amounted to a minimum of two years and a maximum of three years, and fines in the total amount of $3,000.

On November 18, 1966 Sivolella, while serving the Passaic County sentences, was sentenced by the Bergen County Court upon his conviction of possession of lottery paraphernalia to a term of 1 to 2 years, made concurrent with the Passaic County sentences, and ordered to pay a fine of $1,000;

The Bergen County sentence expired on Februáry 11, 1968, and Sivolella requested "of the prison authorities that from that date forward he be given credit on the $1,000 fine imposed in Bergen County at the rate of $5 for each day of imprisonment yet to be served on thé other sentences. His reliance was and is upon N. J. S. 2A :166-16. His request was denied and his appeal is from that denial.

The cited statute provides that when a person is confined in a penal institution “by reason of default in the payment of fines and costs of prosecution,” he shall be given credit against the amount of such fine and costs at the rate of $5 for each day of .confinement. This statute was not applicable to Sivolella because he was being confined^ after the expiration of the Bergen County sentence, by reason of the Passaic County sentences, and not by reason of default in the payment of fines. See Baucum v. New Jersey Parole Board, 68 N. J. Super. 271, 274. (App. Div. 1961).

Judgment affirmed.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, TOWNSHIP OF CHATHAM, PLAINTIFF-RESPONDENT, v. BERNARD WILLIAM GARGIULO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1968
    Decided October 3, 1968.

      Before Judges Q-aulkin, Collester and Labreoque.

      Mr. James E. Davidson argued the cause for appellant {Messrs. Farrell, Curtis, Carlin & Davidson, attorneys; Mr. Edward J. Farrell, on the brief).

      Mr. John B. Miller argued the cause for respondent Township of Chatham.
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant appeals from a judgment of the Morris County Court which, on appeal from the Municipal Court of Chatham Township, found him guilty of violating the township zoning ordinance and imposed a fine of $200.

Appellant has been the operator, since 1954, of a gasoline service station located at the intersection of Green Village Road and Shunpike Road in Chatham Township. Under the zoning ordinance in effect in 1954 the area was zoned for business; including gasoline filling stations, and there were no restrictions on the use of signs.

In 1961 a comprehensive amendment to the zoning ordinance was enacted whereby the area in which defendant’s station is located was rezoned “B Neighborhood Business Zone.” By the omission to mention them as a permissible use, service stations were excluded. A further amendment enacted in 1965 specifically excluded them. The 1961 and 1965 amendments also contained provisions regulating the number, size, shape, location and lighting of signs and prohibiting the outdoor “storage” of material and equipment.

In 1966, after the filing of a complaint against him by the township zoning officer, defendant made application to the zoning board of adjustment for a variance to permit, inter alia, (1) an increase in the number of signs permitted on the gas station and (2) the storage and display of tires on the premises. Following favorable action by the board, the township governing body on January 5, 1967 adopted a resolution granting a variance for two promotional signs not to exceed 30 inches in the largest dimension but providing that no other promotional sign should be permitted. The resolution also allowed the location and maintenance of a cabinet for the storage and display of tires. There was no appeal from the action of the governing body but thereafter defendant put up the “Flying Aces” contest sign hereafter described.

The magistrate and the County Court judge found that defendant had violated the ordinance by (1) maintaining the sign promoting the “Flying Aces” contest, and (2) displaying a tire at each end of the two pump islands on the premises.

The tire display on which the complaint was based consisted of a single tire, set in a stand at each end of the two pump islands. They were put out every morning and removed every night. Defendant testified they were put there to let the public know that he sold tires and to prevent drivers from running into his pumps.

In his letter opinion the county judge noted that both the 1961 and 1965 ordinances contained provisions prohibiting the outdoor storage or display of merchandise. While we have not been favored with a copy of the 1961 ordinance, the ordinance in effect at the time of the offense was the 1965 one and we find nothing in it which prohibits the display of merchandise. While the resolution of the township committee which granted defendant’s application for a variance provided, in part, that “no other tire- storage or display for which a variance was requested shall be permitted,” this proviso did not rise to the height of law and could not serve to prohibit an action which was not prohibited by the ordinance itself. We reject the suggestion that the provision of the ordinance which requires that material and equipment (with certain exceptions not here relevant) be stored in completely enclosed structures prohibits the display of the tires in the manner indicated. The word storage connotes permanency and not a transient situation. Cf. N. Y. Central R. R. Co. v. Borough of Ridgefield, 84 N. J. Super. 85 (App. Div. 1964). Here the tires were not being stored but were being displayed while serving as bumpers or barriers.

It follows that the conviction for such violation must be set aside. We express no opinion as to whether a prohibition of such display upon this property would be valid.

The “Flying Aces” sign was some 2)4 by 6 feet in size, made, of nonpormanenf material (plastic), and lettered in large letters as follows :

“WIN UP TO $2,500 FREE! PLAY FLYING ACES”

It was tied to the station pylon (identification) post and may more appropriately be denominated as a banner or flyer. It is to be distinguished from signs which wrere on the premises and continued to be used after enactment of the 1961 ordinance and the additional signs authorized by the variance. The banner was not put up until two months after the governing body had declined to grant a variance permitting it. It was intended to advertise the current “give away” program of the Tidewater Oil Company (hereafter Tidewater). Such programs are of comparatively recent origin and the manner of their operation has been substantially set forth in United Stations of N. J. v. Kingsley, 99 N. J. Super. 574 (Ch. Div. 1968) and United Stations of N. J., v. Getty Oil Co., 102 N. J. Super. 459 (Ch. Div. 1968). Tidewater’s area sales manager conceded that such promotional signs were “of a temporary nature.”

Gargiulo’s testimony indicates that beginning with 1957, with the exception of one year, he displayed some advertising signs or banners furnished him by Tidewater, but “only when the company came out with a promotion campaign,” and that these were kept up for but two or three months. In 3966, when “contests” of the “Plying Aces” type began, the sign was kept up from March until November.

While the statute, R. S. 40 :55-48, preserved defendant’s right to continue the use of his premises as a gasoline service station notwithstanding passage of the 1961 ordinance, such nonconforming uses are to be closely restricted and the protected use may not be extended beyond that enjoyed by defendant prior to its passage. Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N. J. 189, 197 (1955); Hay v. Board of Adjustment of Borough of Ft. Lee, 37 N. J. Super. 461, 464 (App. Div. 1955); Weber v. Pieretti, 72 N. J. Super. 184, 197 (Ch. Div. 1962), affirmed 77 N. J. Super. 423 (App. Div. 1962). Even a nonconforming use may be subjected to reasonable regulation by a municipality, 8A McQuillin, Municipal Corporations (3d ed. 1965), § 25.182 such as regulation of the use of business signs on the premises. Cf. United Advertising Corp. v. Borough of Raritan, 11 N. J. 144, 150 (1952).

While impliedly conceding that the ordinance provision covers the device here involved, defendant argues that its continuance is lawful because it is itself a nonconforming use, or a use accessory to the principal use of the premises as a gasoline service station. We do not agree.

As noted, defendant’s proofs revealed that promotional signs of approximately similar size had been furnished by Tidewater and put up at the service station as far back as 1957. None of these was intended for use for more than a short period. Whether a sign was put up depended on Tidewater’s advertising program, and there was one year when there was no promotion at all.

While business signs may attain the status of nonconforming uses, United Advertising Corp. v. Borough of Raritan, supra, at p. 150; State v. Huntington, 145 Conn. 394, 143 A. 2d 444, 447 (Sup. Ct. Err. 1958), the temporary use of a sign or banner, if and when the advertising policy of a manufacturer of a product calif-: for it, docs not amount to a nonconforming use which may be continued after enactment of an ordinance which prohibits it. Cf. State on Complaint of Mallet v. Loux, 76 N. J. Super. 409 (App. Div. 1962). The situation here involved is to he distinguished from that in Civic Association of Dearborn Township, Dist. No. 3 v. Horowitz, 318 Mich. 333, 28 N. W. 2d 97 (Sup. Ct. 1947), cited by defendant, where it was held that operation of a carnival, which was closed down for the winter when an ordinance prohibiting such use was enacted, constituted a nonconforming use which could be continued. There, as in Burmore Co. v. Smith, 124 N. J. L. 541 (E. & A. 1940), the court was dealing with a use which was necessarily seasonal in its nature, as distinguished from use of the subject premises on an all-year-round basis. Here, the display of the sign was not necessarily seasonal, but depended upon whether and when it was called for by Tidewater’s current advertising program.

Nor was maintenance of the device justified as & use accessory to the principal use of the premises. To qualify as such use, it was necessary that it be clearly incidental to and customarily found in connection with the principal use to which it is allegedly related. 1 Rathkopf, The Law of Zoning and Planning, at p. 23-1 (1966). A principal use generally carries with it all uses which are normally accessory, auxiliary or incidental thereto. City of Newark v. Daly, 85 N. J. Super. 555, 560 (App. Div. 1964), affirmed 46 N. J. 48 (1965). See also Zahn v. Newark Bd. of Adjustment, 45 N. J. Super. 516 (App. Div. 1957). So considered, we are satisfied and hold that display of the banner in question was not such an accessory use. Defendant was entitled and has been permitted to continue to display the customary signs associated with the operation of the gasoline service station which were in use at the time the 1961 ordinance was enacted. See Ackerman Fuel Oil Co. v. Board of Adjustment of Borough of Paramus, 136 N. J. L. 93, 95 (Sup. Ct. 1947). As noted, he was subsequently allowed additional signs. Every means of promoting the sale of products dispensed by a dealer does not, per se, qualify as a use clearly incidental to and customarily found in connection with the dealer’s business. Undoubtedly, a free barbecue, a balloon ascension or a concert by the Beatles would have great value as promoters of the gasoline business, but it can hardly be said that they should be permitted as auxiliary uses to a gasoline service station where otherwise prohibited by the zoning ordinance. An accessory use may not be permitted to depend upon the whim or ingenuity of those engaged in sales promotion. It requires considerably more substance, especially where, as here, the principal use is a nonconforming one which may not be extended without a variance.

We have reviewed the remaining grounds for reversal and find them to be without merit. There was proof of defendant’s guilt beyond a reasonable doubt. The State made out a prima facie case through the testimony of the zoning officer, and when defendant failed in his attempt to establish that the use was a permitted one, the State’s case was complete. See Andover Tp. v. Lake, 89 N. J. Super. 313 (App. Div. 1965); Weber v. Pieretti, supra, 72 N. J. Super., at p. 195.

The fact that the complaint referred to a violation of the “variance” does not detract from the validity of defendant’s conviction. The enabling statute, N. J. S. A. 40 :49-5, authorizes penalties for violation of an ordinance enacted thereunder, and in response to such authorization the ordinance prescribed the penalties to be imposed for violation of its provisions. The complaint charged that maintenance of the sign was in violation of the ordinance and contrary to the provisions of the variance. The latter portion is surplusage and in no wise detracts from the nature of the violation. It was undoubtedly inserted for the purpose of excluding the possibility that the allegedly unlawful action of defendant was authorized by the variance. The error, if any, was harmless.

The judgment of conviction is affirmed insofar as it finds defendant guilty of violation of the ordinance by the display of the “Plying Aces” sign, and reversed as to the violation based upon the tire display. Since the trial judge imposed a single penalty for both violations the matter is remanded for resentencing of defendant.

       It had conducted a “Win a Cheek” contest in 1966 and we are told that “Flying Aces” has been succeeded by “Make Money.” See United Stations of N. J. v. Getty Oil Co., 102 N. J. Super. 459 (Ch. Div. 1968).


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BURTON STEEVER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1968
    Decided October 4, 1968.
    Before Judges Confoed, Kilkenny and Leonaed.

      Mr. Edward 8usld, Jr. argued the cause for appellant.

      Mr. Robert L. Messiclc, Assistant Prosecutor, argued the cause for respondent (Mr. A. Donald Bigley, Camden County Prosecutor, attorney).
   Per Curiam.

Defendant appeals his conviction of possession of lottery paraphernalia, prohibited by N. J. S. 2A :-121-3 (b). The sole ground of appeal is that football “pools,” which were found on defendant’s person in the course of a valid search by the police, are not lotteries within the intention of the statute.

Since 1961 a prohibited lottery has been defined in the crimes statute (N. J. S. 2A :121-6) as a “distribution of prizes by chances in return for a consideration in the form of money or other valuable things.” However, substantially the same definition was employed by the courts for a long time prior to its incorporation into the statute. State v. Lovell 39 N. J. L. 458, 461 (Sup. Ct. 1877). Defendant argues that a football pool does not come within the definition since an element of skill and judgment on the part of the player is involved in that he picks the winners of the games to be played (subject to the “point-spread,” or odds-equivalent, fixed by the operators of the pool). This, it is contended, eliminates the element of chance from the enterprise. The same argument was rejected by the former Supreme Court in State v. Lovell, supra, where pools on horse races were held to constitute lotteries notwithstanding the contention of the defendant there to the effect that an element of skill and judgment on the part of the bettor in selecting the horses removed the pools from the category of lotteries because of the absence of “chance.” The court reasoned that there remained a substantial element of chance as to which horse would win and also that the amount to be won depended on the number of participants in the pool — another element of chance.

This reasoning is entirely applicable to the pools here involved — as such pools are described in the Agreed Statement in Lieu of Record before us. The Lovell case was cited with approval on the point by former Justice Case in Streeper v. Auditorium Kennel Club, 13 N. J. Misc. 584 (Sup. Ct. 1935).

We can find no support for the argument of defendant that a comparison of the “gaming” statutes with those on lotteries shows that in the case of the latter the Legislature had in mind only such games or betting enterprises as to which the element of skill or judgment was totally lacking.

Judgment affirmed.


author: Pee Cubiam.

text:
    PEOPLES TRUST COMPANY OF BERGEN COUNTY, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. SAUL KOZUCK AND ELAINE KOZUCK, HIS WIFE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 30, 1968
    Decided October 7, 1968.
    Before Judges Goldmann, Kolovsky and Carton.

      Mr. Saul Komch, appellant, argued the cause pro se.

      Mr. John B. Hall argued the cause for respondent (Mr. Leon H. Kreiger, attorney).
   Pee Cubiam.

The judgment is affirmed essentially for the reasons expressed by Judge Botter, whose opinion appears in 98 N. J. Super. 235 (Law Div. 1967).


text:
    WILLIAM L. STAEHLE AND DOROTHY H. STAEHLE, HIS WIFE, PLAINTIFFS-APPELLANTS, v. AMERICAN EMPLOYERS’ INSURANCE COMPANY, A CORPORATION OF THE STATE OF MASSACHUSETTS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1968
    Decided October 10, 1968.
    Before Judges Gaulkin, Collester and Labrecque.

      Mr. Eugene 8. Garrett argued the cause for appellants (Messrs. Kipp, Ashen & Somerville, attorneys).

      Mrs. Sonia Napolitano argued the cause for respondent (Messrs. Pindar, McElroy, Connell & Foley, attorneys).
   Per Curiam.

Defendant issued to plaintiffs a “Home Owners Policy” which contained an endorsement insuring them against theft or mysterious disappearance of personal property. On June 17, 1966 plaintiffs presented to defendant a claim for a diamond pin which they said had disappeared on June 15. By letter, dated July 15, 1966, defendant denied liability. Plaintiffs instituted this action on June 21, 1967.

The policy provided:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

These are lines 157 to 161 of the New Jersey standard fire insurance policy. N. J. S. A. 17 :36-5.20.

Defendant moved for summary judgment on the ground that the action had not been commenced within the time limited by the policy. The motion was granted and plaintiffs appeal.

Plaintiffs argue: (1) “Where a policy contains both a provision shortening the statutory provision for commencing an action and a provision preventing the insured from instituting an action before a certain time, the said period for commencing an action is tolled during the period the insured cannot bring an action,” and (2) “It is unreasonable than an insurer may forfeit coverage where there is no likelihood that it was prejudiced by a breach of the policy provisions by the insured.” Por these propositions plaintiffs cite only two authorities: Cooper v. Government Employees Ins. Co., 51 N. J. 86 (1968), and Steel v. Phoenix Ins. Co., 154 U. S. 518, 14 S. Ct. 1153, 38 L. Ed. 1064 (1894). We find that the Cooper case is not in point. In the Steel case, the Ninth Circuit had held that the 12-month limitation began to run not from the date of the fire but rather from the expiration of 60 days after the proofs of loss were furnished. Judge McKenna dissented. On appeal the United States Supreme Court was equally divided and therefore judgment was affirmed without opinion. We are not convinced by the Steel case that we should depart from the rule laid down in New Jersey Oases which have construed this or similar language. Weinroth v. N. J. Manufacturers Ass’n. Fire Ins. Co., 117 N. J. L. 436, 438-439 (E. & A. 1936); cf. Martin v. State Ins. Co., 44 N. J. L. 485, 487-490 (Sup. Ct. 1882); Krauss v. Brooklyn Fire Ins. Co., 130 N. J. L. 300, 305-306 (E. & A. 1943). The New Jersey rule seems to be the one followed in the majority of the states. See 29A Am. Jur., § 1797, pp. 867-868; Annotations 6 A. L. R. 3d 1197; 95 A. L. R. 2d 1028; 121 A. L. R. 758; Sager Glove Corp. v. Aetna Ins. Co., 317 F. 2d 439 (7th Cir. 1963); Margulies v. Quaker City Fire & Marine Ins. Co., 276 App. Div. 695, 97 N. Y. S. 2d 100 (1950).

We hold that the 12-month limitation in the policy is not ipso facto unreasonable, nor as applied to the facts at bar. Here defendant denied liability within one month after the claim was presented, leaving plaintiffs almost 11 months within which to start suit.

The judgment is affirmed.


author: Sullivan, S. J. A. D. Foley, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAY E. THOMAS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Decided October 11, 1968.

      Before Judges Sullivay, Foley and Lewis.

      Mr. Stanley B. Katz, assigned counsel, argued the cause for appellant.

      Mr. Elliot L. Katz, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney; Mr. Thomas L. Yaccarino, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

Defendant and one William Rose were indicted for breaking and entering into a building belonging to Fred C. McMahan and the larceny of certain items of personal property therefrom. They were tried by a jury which returned verdicts of not guilty of breaking and entering, but guilty on the charge of larceny.

The pertinent proofs of the State may be summarized as follows. Mr. McMahan owned a garage type building in which he stored numerous items of personal property. Mc-Mahan had last seen these items in the building just prior to his going on vacation in the middle of August 1966. When he returned about September 10, 1966 he found a rear window screen cut out and the front overhead door unlocked and opened. A number of the items of personal property stored in the building were missing. Chris Meeth Jr. testified as a witness for the State that in the latter part of August 1966 defendant and Rose came to the service station which he operated and sold him items of personal property later identified as being some of the items missing from Mc-Mahan’s building. According to Meeth, defendant and Rose told him that the items they were selling came "from their father’s or grandfather’s garage” — that he had passed away and they were cleaning out the garage. John R. Blewett also testified as a witness for the State. He identified defendant and Rose' as the two men who in the early part of September 19’6'6 came to his place of business and sold him a quantity of scrap, copper, and brass, later identified as part of the items missing from the McMahan building. According to Blewett, he asked defendant and Rose where they got the "stuff” and they said that "their father” had died and that they were cleaning out the garage.

On this appeal, defendant makes three contentions. First, it is argued that the jury verdict was inconsistent and therefore necessarily represented mistake, prejudice, partiality or compromise on the part of the jury. Second, defendant contends that the prosecutor erroneously caused defendant to be indicted for breaking and entering and larceny when, in fact, the only possible indictment under the evidence should have been for receiving stolen goods. Third, defendant argues that the trial court prejudiced defendant’s right to a fair trial by failing to specifically tell the jury that mere possession does not constitute larceny, counsel for defendant having requested such a charge.

As to the first point, we do not agree that the jury verdict was necessarily inconsistent. In State v. Dancyger, 29 N. J. 76, 92-93 (1959), where the jury did not find the defendant guilty of breaking and entering, but found him guilty of the larceny, the Supreme Court held that such a verdict was not inconsistent and did not demonstrate that the jury compromised on the issue of liability. In the instant ease, the jury was charged that the State had to prove beyond a reasonable doubt that defendant and Eose broke into McMahan’s garage. Since the proofs showed that the overhead door of the garage was found open, the jury may not have been satisfied that the actual breaking had been committed by these two, even though it was satisfied that they entered the garage and stole some of the personal property therein. It does not appear that the verdict prejudiced the defendant in any way.

Next, defendant argues that the only possible indictment under the evidence should have been for receiving stolen goods. We do not agree. This State follows the general rule that the unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief. State v. Dancyger, supra, pp. 85-86. In the instant ease, while the State was not able to produce evidence as to the exact date on which the larceny took place, it was proved that it had to have been committed after August 15 and some time prior to the end of August, when defendant sold some of the stolen items to Chris Meeth Jr., an interval of some 14 days. In our opinion, considering the nature of the stolen goods (a chain saw, a welder, a Quarter Midget automobile, a minibike, snow blower, electric can opener, assorted hand tools, an electric drill, scrap copper wire with the insulation burned oil and brass valves and faucets) and defendant’s false explanation to Meeth and Blewett of how the goods came to be in his possession, together with the relatively short period of time involved, a jury could have properly inferred that defendant had committed the larceny.

As to defendant’s third point, after the jury had been charged, counsel for defendant stated that there were no objections, but he would like to have included a reference to the fact that mere possession did not constitute larceny. To this the court answered that it had charged the jury as to the elements of larceny and that the requested instruction was unnecessary.

We see no error. The court, after reading the provisions of the larceny statute to the jury, charged as to the elements of the crime, including the necessity for proving a felonious or wrongful taking with the intent to deprive the owner of his property, the court adding: “Fraudulent intent is a necessary element of larceny.” Defendant’s requested charge may have been correct as an abstract principle of law, but when viewed against the background of the State’s proofs it was not accurate. As heretofore noted, possession of stolen property under certain circumstances is evidence from which a jury may properly infer that the possessor committed the larceny.

The dissent filed herein finds prejudice to defendant amounting to “plain error” in that the trial judge did not charge the jury that mere possession of stolen property was not evidence of larceny unless the interval of time separating the theft from the possession was so short as to permit the minds of reasonable men to conclude beyond a reasonable doubt that defendant was the thief. No request for such a charge was made, nor was any objection made to the charge on this score. Defendant has not even raised this as an issue on appeal.

Moreover, the trial court, in its charge, not only defined the elements of larceny, as heretofore noted, but also explained the nature of circumstantial evidence. It then alluded to the interval of time by outlining to the jury the proofs concerning Mr. McMahan’s having last seen the items of personal property in his garage on or about August 15, and Mr. Meeth and Mr. Blewett having purchased some of the stolen items from defendant and Rose in late August and early September. The court then added:

“So what the State asks you to infer is that Thomas and Rose both broke into McMahan’s garage, they stole this material, they were in possession of it and that the proof of the pudding is the fact that they had it and tried to sell it and, in fact, did sell it.”

Under all of the circumstances, “plain error” has not been shown.

Affirmed.

Foley, J. A. D.

(dissenting). I disagree with the majority in what I deem to be one vital particular. While the trial court charged the elements of larceny satisfactorily, I think that under the facts of this case it was incumbent upon the judge to submit to the jury the question of whether the time when the stolen goods were determined to be in the possession of defendant (the latter part of August), in relation to the theft which occurred on or after August 16, was of a sufficiently short duration to enable the jury to rationally conclude that defendant was the thief.

In support of its conclusion the majority relies upon State v. Dancyger, 29 N. J. 76 (1959) which adopts the principle that the unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief. In Dancyger, however, the evidence concerning the time element cogently supported a permissible inference of defendant’s guilt. There, the jury could have concluded that the larcenous taking occurred some time after 11:00 a.m. on July 30, and that defendant pawned under an assumed name a part of the stolen jewelry in New York City between 3:30 p.m. and 4:40 p.m. on the same day. The proofs further showed that defendant was in possession of other fruits of the theft the following day in Poughkeepsie, New York, (see 29 N. J. 85).

Here, there was no proof of the specific date on which the larceny had taken place. It could have occurred at any time on or after August 16 and until the goods were- discovered in defendant’s possession in “the latter part of August.”

Assuming arguendo that the time element was a question for the jury, the least defendant was entitled to was an instruction by the court that the mere possession of stolen property was not evidence of larceny unless the interval of time separating the theft from the possession was so short as to permit the minds of reasonable men to conclude beyond a reasonable doubt that defendant was the thief. While this is not the only circumstance which is relevant to the ultimate determination of guilt the extreme importance of it is emphasized and highlighted in the Dancyger opinion.

In my judgment the charge as given had the capacity to convey to the layman the impression that the mere possession of the goods in the latter part of August, of itself, without consideration of when they were stolen, or of any other circumstances, was a sufficient basis for concluding that defendant was guilty beyond a reasonable doubt. That I do not believe to be the law, and if it was the basis of the jury determination “plain error” exists.

Furthermore, as the majority notes, at the conclusion of the charge defendant’s attorney, while stating he had no objections, said that he would like to have included a reference to the fact that mere possession did not constitute larceny. This served to bring to the trial court’s attention the important role which "possession” played in the factual context of the case. Since in the main charge the judge had said nothing on this subject I think that in the interest of a fair trial he should have charged the rule of Dancyger, supra.

Eor these reasons I would reverse and remand for a new trial.


text:
    WILLIAM B. NATELL, PLAINTIFF-APPELLANT, v. HENRY HENLEY, ET AL., DEFENDANTS, AND MAYFAIR FABRICS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 30, 1968
    Decided October 11, 1968.
    See also 101 N. J. Super. 363.

      Before Judges Coneoed, Kilkenny and Leonard.

      Mr. Robert F. Golquhoun argued the cause for appellant.

      Mr. Allan Maitlin argued the cause for respondent (Messrs. Feuerstein & Sachs, attorneys; Mr. Peter 8. Valentine, on the brief).
   Per Curiam.

The judgment is affirmed essentially for the reasons expressed in the opinion of Judge Ackerman in the Law Division, 97 N. J. Super. 116 (1967), except those based upon the incidence of subrogation in favor of the landlord’s insurer. The insurance company is not a party to this appeal (even if it is the real party in interest as a subrogee); its contractual rights vis-a-vis the landlord are not here involved;, and the lease in question should be read and interpreted to ascertain the mutual intention of the sole parties to it, landlord and tenant, just as the Supreme Court did in the case where the tenant was suing the landlord, Mayfair Fabrics v. Henley, 48 N. J. 483 (1967).

Judgment affirmed.


author: Leonard, J. A. D.

text:
    ROGERS CARL CORP., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LAWRENCE D. MORAN AND JENNIE MORAN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1968
    Decided October 14, 1968.

      Before Judges Coneokd, Kilkenny and Leonard.

      Mr. Francis G. Foley argued the cause for appellants (Messrs. Foley and Gazi, attorneys).

      Mr. George W. Morton, Jr. argued the cause for respondent. •
   The opinion oí the court was delivered by

Leonard, J. A. D.

Defendants appeal from an adverse judgment entered against them in plaintiff’s action for slander of title and upon defendants’ counterclaim for specific performance.

The trial court, at the conclusion of all of the testimony, denied defendants’ motion for a dismissal of plaintiff’s action but granted plaintiff’s motion for a direction of verdict in its favor on the liability phase of the case. The Court thereupon, submitted to the jury solely the issue of damages and the jury returned a verdict in favor of plaintiff and against defendants for $665.33 compensatory damages and $5 punitive damages.

This action springs from a contract executed between the parties on January 7, 1966, wherein plaintiff agreed to sell and defendants agreed to buy certain vacant land and a house to be constructed thereon by plaintiff. The total contract price was $23,500, to be paid as follows: $100 down; $400 cash and a $1,500 promissory note, when defendants obtained a $16,000 mortgage commitment; and the balance of $5,500 in cash and the mortgage money at the closing.

By an addendum to the contract the parties agreed that the mortgage loan “shall be obtained from City Federal Savings and Loan Association only” (City Federal), the company from which plaintiff had obtained a construction mortgage.

By letter dated January 27, 1966 City Federal advised defendants that their application for a mortgage loan had been approved and that attorneys Adams and Rockoff would “prepare our required documents and furnish us with title insurance.” Defendant Lawrence Moran remonstrated with Englemann, president of plaintiff, over the mortgagee’s designation of its closing attorney, taking the position that Foley, defendants’ attorney In the transaction, who was also on a list of approved closing attorneys of City Federal, should so act. Englemann said the designation could not be changed and, according to Moran, said there was “no deal.” Englemann testified he had his discussions on this subject with Foley and that the latter was adamant about being the closing attorney for the mortgagee, even after Englemann inquired of City Federal whether that arrangement satisfied it and received and transmitted a negative response. The Morans also refused to make the cash payment or deliver the $1,500 note.

On February 16, 1966 Adams and Rockoff, attorneys for the mortgagee, wrote to defendants that in view of their failure to make payment of the cash deposit and execute the promissory note, the agreement was rescinded by the seller. Coincidentally, the Morans recorded their contract with plaintiff in the county clerk’s office on the very same date — February 16, 1966. Defendant Lawrence Moran on February 22, 1966 wrote to City Federal that defendants accepted the commitment “except that the attorney who is to prepare the necessary documents and title insurance is your approved attorney, Francis C. Foley,” purportedly in accord with an original understanding between defendants and Englemann to that effect. This controversy as to the attorney was never resolved, both parties holding steadfast to their respective positions.

On February 22 plaintiff wrote to defendants, returning their $100 deposit check and stating that “[W]e regret that you were unable to complete the purchase of the property * * On March 4 defendants’ attorney, Foley, by letter sent defendants’ deposit check to Adams and Rockoff, advising them that defendants had no intention of cancelling their contract and that he was holding the balance of the deposit for the seller and “will deliver the same when the controversy with respect to your representation of Mr. Moran is disposed of.” In the same letter Foley stated that the contract between plaintiff and defendants was recorded on February 16.

Thereupon, plaintiff instituted the present action for. slander of title, seeking compensatory and punitive damages and the removal of the contract from record. The basis of plaintiff’s claim, as disclosed by the pretrial order, was that defendants “willfully, wantonly, maliciously and with the intention to damage plaintiff, recorded the contract” and in so doing acted “in bad faith.”

Nevertheless, at the commencement of the trial and before the jury was drawn, the judge, albeit without objection by counsel, stated that the question involved was whether plaintiff or defendants “breached the contract.” Prom then on the record discloses that the only issue considered and resolved by the court was ‘Treach of contract.”

However, defendants in arguing their motions for dismissal made at the end of plaintiff’s case and at the conclusion of all the testimony, argued that plaintiff did not carry its burden of proving that defendants acted “maliciously” and that the evidence disclosed that defendants acted in “good faith” upon “probable cause” prompted by “a reasonable belief.” The court, in denying these motions and in granting plaintiff’s motion for a directed verdict, did not determine the issue of malice or good faith but merely concluded that there was “no factual question with respect to the breach of contract by the defendants and that they therefore had no right to record the contract.”

Upon the record, we agree with the court’s conclusion that defendants breached their contract and that therefore they were not entitled to specific performance thereof, and that plaintiff was entitled to have the contract removed from record. Defendants had no legal right to name the mortgagee’s closing attorney. The fact that the mortgage commitment designated closing attorneys other than Foley did not constitute a failure to provide defendants with a suitable mortgage commitment consistent with the contract. Consequently, upon defendants remaining adamant in naming the mortgagee’s closing attorney and refusing to pay the cash and deliver the note called for by the contract, plaintiff had the right to rescind. Nevertheless, the foregoing conclusions do not support the trial court’s entry of a directed verdict in favor of plaintiff on its action for slander of title.

Malice, express or implied, is an essential element of the cause of action for slander of title. Andrew v Deshler, 45 N. J. L. 167, 169 (E. & A. 1883); Frega v. Northern New Jersey Mtg. Ass’n, 51 N. J. Super. 331, 340 (App. Div. 1958). Plaintiffs do not deny that proof of malice or bad faith in the recording of the contract by defendants was a requisite for their establishment of a cause of action for slander of title, but contend that factor is conclusively shown by the proofs.

A rival claimant is privileged to disparage another’s property in land by an honest assertion of an inconsistent legally protected interest in himself. Restatement of Torts, § 647, pp. 364-365 (1938).

As the court said in Andrew v. Deshler, supra:

“* * * If the words are spoken by a stranger, the law presumes malice. But if the party is himself interested in the matter and announces the defect of title, bona fide, either for the purpose of protecting his own interest or preventing the commission of a fraud, the legal presumption of malice is rebutted. Malice is of the gist of the action, and the real point on the question of malice is whether the defendant made the statement bona fide and under an honest impression of its truth, or whether he made it maliciously, for the purpose of slandering the plaintiff’s title.” (45 N. J. L., at pp. 169-170)

Where a defendant acts in pursuance of a bona fide claim which he is asserting honestly, although without right, as eventually appears from an adjudication by a court of competent jurisdiction, such defendant will not be penalized in damages for asserting such a bona fide claim in good faith. Keiser v. Kile, 166 Okla. 41, 26 P. 2d 194, 195 (Okla. Sup. Ct. 1933). See also Bogosian v. First National Bank of Millburn, 133 N. J. Eq. 404, 406 (Ch. 1943).

As previously noted, the contract here involved made no provision as to whose attorney was to prepare the closing documents and the title search. Moreover, defendants attempted to establish that City Federal had a "policy” or custom whereby it allowed a purchaser-mortgagor to use his own attorney to handle the closing for the mortgagee, particularly when that attorney was on City Federal’s “approved” list. The court sustained plaintiff’s objection to this evidence on the ground that the contract could not be altered by oral evidence. This ruling was erroneous insofar as it affected plaintiff’s claim for slander of title. Since the contract was silent as to the closing attorney, custom and usage of the trade would be admissible on the issue of defendants’ good or bad faith. The jury could well have considered that such proof indicated that defendants acted in good faith in insisting that Foley act as the closing attorney.

Under all the circumstances, we are of the opinion that the issue of whether defendants exceeded the just bounds of their privilege, i. e., whether they were actuated by an honest, bona fide purpose to protect their own interest or by a malicious design to defame plaintiff, was one for the jury resolution. Andrew v. Deshler, supra, 45 N. J. L., at pp. 170-171.

The fact that defendants breached their contract with plaintiff is not per se proof of malice. It is merely one fact that the jury should consider together with all the other circumstances, in evaluating defendants’ conduct.

The portion of the judgment which awarded plaintiff compensatory and punitive damages on its claim for slander of title is reversed and remanded for a new trial. The remaining portions of the judgment are affirmed.


author: Goldmann, S. J. A. D.

text:
    ROSE STALLONE, PLAINTIFF-RESPONDENT, v. SCHIAVONE-BONOMO CORP., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Decided October 14, 1968.

      Before Judges Golbmann, Kolovsky and Carton.

      Mr. Paul B. Thompson argued the cause for appellant {Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
    Jir. Joseph Persky argued the cause for respondent {Mr. Abraham Lightdale, attorney).
   The opinion of the court was delivered by

Goldmann, S. J. A. D.

This is an appeal from a County Court judgment affirming an award by the Workmen’s Compensation Division in favor of petitioner widow.

Before proceeding to the merits it should be pointed out that the county judge was confused as to the scope of review on appeal from the Division. In his letter opinion he first stated that the function of the County Court is to hear the matter de novo on the record below — the correct rule.' But he then proceeded to state the determinative standard to be “whether the findings made below could reasonably have been reached on sufficient credible evidence present in the record,” citing Close v. Kordulak Bros., 44 N. J. 589, 599 (1965), and ruling that the standard had been satisfied. This was a mistaken conception of the scope of review in the County Court. MacDonald v. Hudson Bus Transp. Co., Inc., 100 N. J. Super. 103, 105 (App. Div. 1968.)

Were there any real dispute as to the facts we would, as in MacDonald, have to remand the matter so that the County Court might exercise its independent fact-finding function. However, the facts are almost all undisputed, and appellant does not argue that the county judge misconceived his function. Under the circumstances, and in view of the fact that the judge reached the correct result after applying existing substantive law to the facts, there is no need for remand. We proceed to make our own findings and conclusion.

Petitioner’s husband, an employee in appellant’s plant, was in the habit of reporting for work well in advance of the starting hour of 7 a.m. On his way to work before dawn on January 25, 1966, and while walking along a strip of land owned by the Central Railroad Company of New Jersey, he was struck and killed by an automobile driven by a fellow employee. The sole issue on this appeal is whether, within the so-called “going and coming” rule and the exceptions thereto, decedent met his death in'an accident arising out of and in the course of his employment. Appellant company contends that he was killed while walking along a public road and therefore his widow may not be awarded compensation. She, in turn, argues that the strip was not a public road but only a means of ingress and egress to the plant.

As a general rale, where an employee is on his way to work and has not yet entered his employer’s premises, he is not in the course of his employment and may not be awarded compensation for any injuries suffered. Popovich v. Atlantic Products Corp., 125 N. J. L. 533, 535 (Sup. Ct. 1941). However, where the employee has left the public highway and is entering his employer’s premises through a proper means of ingress “so closely related to the place of employment that it may be deemed incidental thereto,” compensation will be awarded. Cossari v. L. Stein & Co., 1 N. J. Super. 39, 43 (App. Div. 1948).

The strip of land along which decedent was walking, although forming a natural extension of Jersey Avenue south of Canal Street, had never been dedicated to the municipality. Appellant’s plant borders the Tidewater Basin and adjoins this strip. The general area was once a freight yard of the Lehigh Yalley and Central Railroads. A number of parcels had been sold to various industrial enterprises, some bordering the strip and others Aetna Street, which intersects it. The only means of ingress to and egress from appellant’s plant and those of other enterprises was over this strip. (There was some testimony as to two side roads, which were described as dirt roads and lumpy, which “no one uses.”) The strip is classified for tax purposes as main stem railroad property. It was partially paved some years ago by appellant and other companies in the area. There are no sidewalks, utilities or street lights.

The proofs clearly establish that the strip was used to gain access to appellant’s premises. Indeed, its vice-president stated that this was in fact the sole means of ingress and egress to and from the plant, and that nearly all its employees used it. Furthermore, the deed to the Schiavone-Bonomo premises expressly contemplated that the company would have access to and from its property over the strip in question:

“The parties hereto contemplate that the party of the third part [Sehiavone-Bonomo] shall have access to and from the premises hereby conveyed over that portion of the lands of The Central Bail-road Company’ of New Jersey which would be within the confines of Jersey Avenue if the same were extended in a southerly direction, the parties of the first and second parts and their patrons and tenants having for over thirty years used said right of way for ingress and egress to and from the premises hereby conveyed and the party of the third part having been in possession of the property hereby conveyed for several years and having used said right of way for ingress and egress thereto. It is understood, however, that any and all covenants for title • contained in this indenture shall not extend to or include such right of way or any rights thereto.”

The deed also provided that “nothing herein contained shall be construed as a dedication or recognition of said Jersey Avenue [as extended in a southerly direction].”

Appellant attempted to establish that despite nondedication, the strip had become a public street by prescription because of its use by the general public for more than 20 years. In this connection, we note that the strip runs between two city streets (Canal and Aetna) and there was some evidence that Central Railroad had made no effort to exclude' the public from using it.

Both the compensation judge and the county judge concluded' that the strip of land was a privately-owned access road to appellant's premises. They also agreed that there was no proof that the strip had become a' public street by prescription. On this basis they held that since decedent met his death on an access road which was not a public street, his widow was entitled to compensation.

Appellant's proofs fell short of the mark of supporting its contention that the paved strip was in fact a public street. The mere fact that the public was not excluded is not enough to create a use by prescription. The inquiry should be: Did those who passed and repassed over the strip use it indiscriminately and in their capacity as members of the general public, or did they do so because of their relation to particular property owners or users as, for example, appellant company? See Olsen v. Erie R. R. Co., 99 N. J. L. 485, 487 (E. & A. 1924). The record establishes that the latter was the actual situation. The private nature of the strip was not necessarily destroyed by the fact that it linked two city streets. Cf. Cerria v. Union News Co., 31 N. J. Super. 369, 372 (App. Div. 1954).

We conclude that decedent was killed while on his way to work over a private access road to his employer’s plant. Cf. Basinski v. Detroit Steel Corp., 2 N. J. Super. 39 (App. Div. 1949).

The judgment is affirmed.


author: Per Curiam. Sullivan, S. J. A. D.

text:
    RUTH GITTLEMAN AND MEYER GITTLEMAN, PLAINTIFF-APPELLANTS, v. CENTRAL JERSEY BANK AND TRUST COMPANY, AS SURVIVING EXECUTOR OF THE ESTATE OF MORTON F. TRIPPE, M. D. DECEASED, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 18, 1967
    Decided September 28, 1967.

      Before Judges Sullivan, Eoley and Leonard.

      Mr. William J. Gearty argued the cause for plaintiffs-appellants.

      Mr. James D. Carton III argued the cause for defendant-respondent (Messrs. Carton, Nary, Witt & Arvanitis, attorneys, Mr. Bobert V. Carton, on the brief).
   Per Curiam.

Plaintiffs in this medical malpractice suit appeal from a judgment of dismissal entered by the trial court at the termination of (heir ease. Plaintiffs primarily contend that the court erred in excluding the testimony of their medical expert, Dr. Robert J. Mulvaney, and in denying their motions for a mistrial and for a new trial.

The complaint herein was filed on October 24, 1964. Trial was originally set for September 13, 1966, but was adjourned and set down peremptorily for September 26, 1966.

Plaintiffs in response to an appropriate interrogatory had advised defendant on August 20, 1965 that their medical expert witness would be Dr. Emanuel Josephson. On September 20, 1966, six dajrs before trial, plaintiffs sent defendant’s counsel a letter, received the next day, wherein they “informally” amended the above noted answer by adding, as an additional medical expert witness, the name of Dr. Robert J. Mulvaney, “a licensed practicing physician practicing internal medicine.”

Trial commenced on the scheduled date, and on the second day thereof, plaintiffs called Dr. Mulvaney as a witness. After he answered one preliminary question as to his qualifications, defendant objected to any further testimony from him and moved that he be excluded as a witness. Following lengthy argument, the trial court sustained defendant’s objection and excluded Dr. Mulvaney from testifying. Plaintiffs immediately moved for a mistrial on the ground that they could not complete their case. This motion was likewise denied. Plaintiffs offered some routine exhibits and “of necessity” rested. Thereupon, defendant moved for a judgment of involuntary dismissal asserting that there was no proof of a casual connection between the plaintiff wife’s claimed physical condition and the defendant’s alleged negligence. This motion was granted. Thereafter, plaintiffs moved for a new trial, which motion was denied.

Plaintiffs’ counsel in an affidavit filed in connection with the motion for a new trial states that, eight days before trial, he “formed the professional judgment that the best interests of the plaintiffs’ case would not be served by calling Dr. Josephson.” He further states that, on September 20, 1966, he made arrangements to have Dr. Mulvaney testify and that he immediately forwarded the aforementioned amended answer to defendant’s attorney.

Plaintiffs contend that under R. R. 4 :23-12 an amendment may be made to answers to interrogatories within twenty days prior to trial “for extraordinary or compelling reasons” and that the necessity for the change of an essential expert witness is such an “extraordinary or compelling” reason. However, the record is devoid of any explanation of the basis of the determination by counsel “that the best interest of plaintiffs’ case would not be served by calling Dr. Josephson.” Nor do we find any reason why this determination was not made earlier than six days before trial.

Further, it is to be noted that the letter amendment did not state that there was to be a substitution in medical experts. Rather, it indicated that both doctors were to be called.

Defense counsel asserts that it was impossible to make an adequate check on the background and qualifications of Dr. Mulvaney within five days, particularly since a week-end was included therein.

The trial judge determined that the situation was governed by R. R. 4 :23-12 and that, although he had authority to relax the rules, he would not do so. In reaching this conclusion, he considered that the witness involved was a key medical witness and that defendant was entitled to an opportunity to investigate his qualifications which it could not adequately do within five days. He further noted that no request for an adjournment was made by plaintiffs’ counsel.

We do not find that defense counsel was under any obligation to notify his adversary that he objected to the late attempt to amend the answer to interrogatories. He had the right to rely upon compliance with the rules.

Under the totality of the circumstances here present, we find that the trial court did not abuse its discretion in. ex-eluding Dr. Mulvaney from testifying and in denying plaintiffs’ motions for a mistrial and for a new trial.

In reaching this conclusion we emphasize that in reviewing the exercise of discretion it is not the appellate function to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course. As we have indicated, we cannot say that he did.

Plaintiffs’ contention that the trial court erred in refusing to admit three bottles of pills in evidence is without merit. They were excluded because there was no proof of a causal connection between them and plaintiff wife’s alleged injuries.

Judgment affirmed.

Sullivan, S. J. A. D.

(dissenting). I agree that the eleventh hour letter amendment of the answer to interrogatories adding the name of Dr. Mulvaney as an expert witness was contrary to R. R. 4 :23-12. However, after receiving the letter, defendant’s counsel gave no indication that he was objecting to the amendment, and plaintiffs’ attorney commenced the trial under the assumption that he would be permitted to use Dr. Mulvaney as his expert witness. Having committed himself to trial, he ascertained for the first time that his right to call Dr. Mulvaney, on whose testimony plaintiffs’ entire case rested, was being challenged by defendant on the grounds that the letter was received within twenty days of trial.

Assuming that defendant’s counsel needed more time to investigate Dr. Mulvaney’s background, it seems to me that justice would better have been served by either granting plaintiffs’ motion for a mistrial, or granting plaintiffs’ subsequent motion for a new trial.

I would reverse and remand for a new trial.