author: Ackerman, John A., J. S. C.

text:
    MICHAEL SEIDEL, PLAINTIFF, v. ABRAHAM GREENBERG, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 24, 1969.

      Mr. Ashley Goodman appeared for plaintiff (Messrs. Goodman & Goodman, attorneys).

      Mr. Harvey Weissbard appeared for defendants (Messrs. Querques, Isles & Weissbard, attorneys).
   Ackerman, John A., J. S. C.

This matter was tried by the court without a jury. It presents novel questions as to whether the perpetrators of a crime are liable in a civil action for damages to an innocent person who was thereafter subjected to criminal prosecution for the commission of such crime.

I

The facts are not in dispute in auy material aspect and the following summary contains the court’s findings with reference thereto. On March 20, 1963 a $300,000 fire destroyed the buildings and stock in trade of the Malgreen Lumber and Supply Co. of Newark, New Jersey, and also destroyed adjoining property. Defendants to this action, Abe Greenberg and Manya Greenberg, his wife, were the sole or principal stockholders of said corporation and were the principal officers in charge of its business, which consisted of the operation of a retail lumber yard. It has been established that the Greenbergs conspired with one Nathaniel Wallace to have the premises of Malgreen burned to collect the insurance thereon, and that Wallace acted as the “go between” and arranged for the actual burning of the premises by one Clarence Moore, the “torch.” Wallace was a carpenter and for a number of years had done business with the Green-bergs and with Malgreen. Some of the conferences between the Greenbergs and Wallace in planning the crime took place in the ofSice at the premises of Malgreen during the period between October 1962 and the time of the fire. Plaintiff Michael Seidel, was the company credit manager and bookkeeper and had served as one of its key employees for a number of years. His duties required him to be inside and he was usually in the company’s office. Shortly before the fire, negotiations had been entered into, if not completely consummated, between the Greenbergs, who had become progressively less active in the management of the business (it is claimed that Mrs. Greenberg was in Florida from December 1962 until after the fire), and seven key employees, including plaintiff, whereby the net profits of the business for the year starting in January 1963 were to be divided pursuant to a profit-sharing plan under which Abe Greenberg was to receive 20% thereof and the seven employees 80% thereof, with plaintiff’s share to be 20%.

On June 17, 1963, about three months after the fire, the Greenbergs and plaintiff were arrested and charged with arson to defraud insurance companies and conspiracy to commit arson. Similar charges were filed against Wallace and Moore. Immediately following his arrest plaintiff was booked, fingerprinted, photographed, detained overnight in jail and released on $10,000 bail fixed by Chief Magistrate Castellano, who scheduled a hearing for June 25, 1963, which date was subsequently postponed until July 9, 1963. Newspaper publicity attended the arrests and preliminary hearing and, among other things, a news article appeared in the Newark Evening News on June 18, 1963, which contained plaintiff’s name and his residence address in Newark and his picture, together with an account of his supposed involvement in the arson scheme. The Greenbergs denied any involvement as, of course, did plaintiff. The Greenbergs had their own attorney. Plaintiff had his own attorney, whose services were arranged for, in part at least, by the Greenbergs and the Greenbergs agreed to pay for such counsel. At no time did the Greenbergs admit to plaintiff or to the law enforcement authorities their complicity in the matter.

On July 9, 1963, at the hearing before the chief magistrate, both Wallace and Moore pleaded innocent, waived hearing, and were held over for the grand jury. The attorneys for the Greenbergs and for plaintiff moved to dismiss the complaints against their clients on the ground that the accusations made against them by Wallace and Moore were not admissible in evidence. The chief magistrate announced that he would reserve decision on the motions for several days. News articles to that effect appeared in the Newark newspapers on July 10, 1963. On July 12, 1963 the chief magistrate dismissed the complaints against the Greenbergs and plaintiff. In a Newarh Evening News article published on that date the public was advised that the complaints were dismissed because the chief magistrate had ruled that “the State has failed to produce prima facie evidence in this case and I therefore must dismiss it,” and that “He said the only way in which the Greenbergs and Seidel were implicated was through remarks made by two prisoners as they were being brought into police headquarters * * and that “At that hearing Castellano upheld objections to any testimony about statements made to police by the pair involving the Greenbergs because they were not made in the presence of the Greenbergs.”

On December 9, 1963 Wallace and Moore were indicted by the grand jury on charges of arson and burning to defraud insurance companies. Newspaper articles to that effect appeared in the Newarh Evening News on December 9 and 10, 1963, which reported the indictments against Wallace and Moore and again recounted the charges against the Green-bergs and plaintiff and the dismissals thereof and the reasons for such dismissals as previously reported. The December 9 article included plaintiff’s name and residence address in Newark, as well as those of the Greenbergs, and reported again, with reference to the earlier dismissals, that “Magistrate Castellano said at the hearing that the State failed to produce ‘prima facie’ evidence against the three. He observed that the only way that the three were implicated was through remarks made by Wallace and Moore, who told police they had a deal to set the fire. The Magistrate ruled out any statement made to police bjr Wallace and Moore because they were not made in the presence of the Greenbergs.” Each of the news articles also referred to remarks made by the Essex County prosecutor with respect to the inconclusive nature of the investigation and the effect of the indictments against Wallace and Moore. The news article of December 10, 1963 quoted the prosecutor as stating that “I don’t know that these indictments will end our investigation of the matter,” and that "the grand jury was restricted from complete investigation because ‘certain people’ could not be called as witnesses for legal reasons. He declined to name the individuals.”

Wallace and Moore were subsequently convicted of the charges against them. On May 3, 1965 the Greenbergs were indicted on four counts charging them with setting fire to and burning the Malgreen buildings, goods and chattels, while insured, to defraud the insurance companies, of burning the buildings of Malgreen, of burning goods and chattels with intent to injure Malgreen, and of conspiring with Wallace and Moore to set fire to and burn the buildings, goods and chattels at the yard with intent to prejudice and defraud insurance companies. The Greenbergs were tried in the Essex County Court, Law Division, convicted on all counts and sentenced on February 9, 1967. On July 1, 1968 their convictions were affirmed by the Appellate Division of the Superior Court.

In June 1965, shortly after the Greenbergs were indicted but before their trial and convictions, plaintiff instituted this action against the Greenbergs and against Malgreen. The complaint charged the individual defendants with negligence in setting the fire and, alternatively, with committing arson and with “a willful and malicious tort” and "willful and deliberate acts against the interest of the plaintiff.” Although not artistically framed, the gravamen of the complaint is that the Greenbergs willfully and deliberately caused the fire, as a result of which plaintiff was arrested on a warrant of the Newark arson squad and charged with having conspired with defendants and others to have caused the fire. It is alleged that plaintiff was booked, fingerprinted, photographed, detained overnight in prison and subsequently released on bail; that his photograph appeared in the Newark Evening New's in an article including him in the conspiracy and charging him with the crime of arson; that he was humiliated and degraded, caused to suffer physical and mental pain, loss of income and earnings, caused to have his privacy invaded and his name and reputation scandalized, and caused to incur medical and legal expenses and loss of employment. There were prayers for both compensatory and punitive damages. In a separate count plaintiff alleged that the Greenbergs promised to reimburse him for legal expenses incurred as the result of the charges against him, and he sought recovery of counsel fees in the amount of $2450 expended in connection with the proceedings against him. In another count it was alleged that plaintiff was under a profit-sharing agreement with defendant corporation which was negligently or willfully interfered with by the individual defendants, as the result of which plaintiff lost income to which he otherwise would have been entitled.

An answer was filed on behalf of defendants, generally denying the allegations of the complaint and reserving the right to move to strike the complaint on the ground that it failed to state any claim upon which relief could be granted.

At the trial, since the Greenbergs had in the meantime been convicted, plaintiff proceeded on the theory that the Green-bergs were guilty of deliberate and criminal acts in causing the fire rather than that they were guilty of negligence in causing the fire. The claims against Malgreen as a corporate entity were not pursued. Pursuant to Evidence Rule 63 (20), evidence of the final judgments adjudging the Greenbergs guilty of the offenses for which they were convicted was received in evidence. The Greenbergs did not testify or offer any evidence to negate their guilt of said offenses.

Deference has heretofore been made to some of the findings of fact by the court. On the evidence adduced, it is clear that the Greenbergs committed willful and criminal acts in causing the fire to be set in order to defraud insurance companies, and that they conspired with Wallace and Moore to that end. It is clear that plaintiff had no part in said conspiracy and is entirely innocent thereof, and that defendants at all times have known of his innocence. It is clear that plaintiff has suffered the shame, humiliation and damage to reputation which one innocent of crime suffers when he is falsely accused and prosecuted therefor, and that he has suffered mental distress and physical pain and loss of income as a result thereof. Although it is clear that the most intense distress and humiliation undoubtedly occurred during the three-week period when the charges were made and pending against him, it is probable, and I find as a fact, that he suffered distress when news articles in December 1963 resurrected publicly the fact of the charges against him. And it is perfectly apparent that his vindication, upon the dismissal of the charges against him, was a cloudy one and has remained cloudy to date in view of subsequent events, including the subsequent indictment and conviction of the Greenbergs. It is perfectly clear that the Greenbergs, who were arrested with plaintiff and knew of the charges against him, were fully cognizant of the prosecution against him and the distress that he was being subjected to.

It is also perfectly clear that although the Greenbergs willfully caused the fire to occur, they never intended that their criminal acts and conspiracy should become known. Quite the contrary. They did not specifically intend that plaintiff, or any one else, be accused of criminal acts or subjected to any prosecution. They did not themselves make any accusations against him which set the proceedings in motion against him or caused their continuance. It is also clear that at no time did the Greenbergs, who knew of their own complicity and that plaintiff was in no way involved, come forward to establish plaintiff’s innocence or to endeaver to stop the proceedings against him on the ground that he was innocent. At no time, even after their convictions, have they come forward to clear his name. Finally, it is clear that if defendants had not performed their criminal acts and caused the fire to be set, plaintiff would not have suffered the injuries and damages for which relief is sought.

II

Fo direct precedent for plaintiff’s action has been found in any reported case. In view of the rather perfunctory trial briefs filed by counsel, the court required supplemental briefs to be submitted. Feither the efforts of counsel nor extensive research by the court have brought to light any precedents on all fours.

Upon analysis, the claims asserted by plaintiff may be said to bear analogy to conventional theories for recovery for malicious prosecution, for invasion of privacy, for invasion and interference with contractual rights and prospective economic gain, for outrageous acts causing mental distress, for fraud and misrepresentation, for defamation, and for breach of contract. Fo case has been found in which it was held that one who commits a crime may be held civilly liable to an innocent person who was prosecuted criminally for the commission of such crime in the absence of the filing of charges or the making of accusations by the perpetrator of the crime which set the processes of the criminal law in motion against the plaintiff. For has any case been found which held that in such circumstances relief would be denied. The grievous damages and injuries which plaintiff has suffered are clearly those which one who has been the subject of a conventional malicious prosecution normally suffers. Is plaintiff entitled to recover from these defendants or is he to be denied relief ?

It is axiomatic that the simple fact that his action does not fit into a nicely defined or established “cubby-hole” of the law does not in itself warrant the denial of relief to him. Falzone v. Busch, 45 N. J. 559 (1965); Di Cristofaro v. Laurel Grove Memorial Park, 43 N. J. Super. 244, 254 (App. Div. 1957); Prosser, Law of Torts (3 ed. 1964) § 1, at 3-4. As stated by Dean Prosser:

There is no necessity whatever that a tort must have a name. New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action where none had been recognized before « *. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff’s interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.

After careful deliberation it is the court’s conclusion that plaintiff is entitled to recover from defendants on the facts of this case upon principles of law which are encompassed within the fundamental and underlying principles of malicious prosecution and of liability for the performance of intentional, wrongful acts.

It is the normal rule in malicious prosecution cases that mere passive knowledge of, or acquiescence or consent in, the acts of another who causes a prosecution is not sufficient to make one liable, and that in order to impose liability there must be some affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted. It is commonly stated that an action for malicious prosecution is not favored in the law, and this is so because of the obvious public policy of having criminal’s brought to the bar of justice and encouraging citizens to come forward to aid in the prosecution of criminals without fear of civil suits for damages for their acts in so doing. These rules have been formulated, however, in the usual malicious prosecution cases in which the defendant being sued was not the perpetrator of the crime for which the innocent person was unfairly prosecuted. The fundamental and underlying basis for liability for malicious prosecution is stated in many cases and in secondary authorities in the language of proximate causation. Typical is the rule laid down in 54 C. J. 8. Malicious Prosecution § 14, at 966, as follows:

The test of liability in an action for malicious prosecution is: AVas defendant actively instrumental in putting the law in force? In order to sustain the action, it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the prossimate and efficient cause of maliciously putting the law in motion, and, if such fact appears, defendant is liable, although he did not actually make or sign the affidavit on which the warrant was issued, or although he was not the prosecutor of record. [Emphasis added]

Were the wrongful and intentional acts of defendants in causing the properties to be burned a “proximate and efficient cause” of the prosecution of plaintiff for burning said properties and of the damages and injuries which he suffered ? In the court’s opinion, they were. Certainly, so far as “causation in fact” is concerned, it is clear that they were. It is perfectly obvious that if defendants had not caused the buildings to be burned, plaintiff would never have been prosecuted for such burning. As a matter of logic and fact, defendants’ criminal acts in 'wrongfully burning the building were clearly a substantial factor in bringing about such prosecution. As stated by Dean Prosser in Law of Torts, C. 7, § 41, at 240 et seq.:

An essential element of the plaintiff’s cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called “proximate cause,” or “legal cause.” There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the proper approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to east a shadow upon the others.
“Proximate cause” — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go hack to the discovery of America and beyond. ‘The fatal trespass done by Five was cause of all our woe.’ But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.”
* * * * * ,¡1 .i.-
Although it is not without its complications, the simplest and most obvious problem connected with “proximate cause” is that of causation in fact. Of all of the questions involved, it is easiest to dispose of that which has been regarded, traditionally, as the most difficult: has the conduct of the defendant caused the plaintiff’s harm? This is a question of fact. It is, furthermore, a fact upon, which all the learning, literature and lore of the law are largely lost. It is a matter upon which any layman is quite as competent to sit in judgment as the most experienced court. For that reason, in the ordinary case, it is peculiarly a question for the jury.
Causation is a fact. It is a matter of what has in fact occurred. A cause is a necessary antecedent: in a very real and practical sense, the term embraces all things which have so far contributed to the result that without them it would not have occurred. It covers not only positive acts and active physical forces, but also pre-existingpassive conditions which have played a material part in bringing about the event. In particular, it covers the defendant’s omissions as well as his acts. The failure to extinguish a fire may be quite as important in causing the destruction of a building as setting it in the first place.

The existence of “causation in fact” having been established, the problems of “proximate cause,” “foreseeability,” “duty,” “intervening cause” and the like are presented. In the last analysis, they resolve themselves down to problems, not simply of factual casuation, but rather of policy, justice and fairness.

In Goldberg v. Housing Authority of Newark, 38 N. J. 578, 10 A. L. R. 3d 595 (1962), Chief Justice Weintraub said in a negligence ease:

The question whether a private party must provide protection for another is not solved merely by recourse to ‘foreseeability.’ Everyone can foresee the commission of crime virtually anywhere and at any time. * * *
The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution, [at 583]

In a similar vein, Justice Hall, writing for the court in a recent negligence case, Caputzal v. The Lindsay Co., 48 N. J. 69 (1966), pointed out that in the last analysis both “foreseeability” and “proximate cause” involve problems of policy. With respect to “foreseeability” he said:

* * * Foreseeability is not solely a mere matter of logic, since anything is foreseeable, but frequently involves questions of policy as well. When it does, the matter is one for determination by the court and not by the fact finder, [at 75]

With respect to “proximate cause,” he said:

* * * Utilization of that term to draw judicial lines beyond which liability will not be extended is fundamentally as an instrument of fairness and policy, although the conclusion is frequently expressed in the confusing language of causation, “foreseeability” and “natural and probable consequences.” Many years ago a case in this State hit it on the head when it was said that the determination of proximate cause by a court is to be based “upon mixed considerations of logic, common sense, justice, policy and precedent.” Powers v. Standard Oil Co., 98 N. J. L. 730, 734 (Sup. Ct. 1923), affirmed o. b. 98 N. J. L. 893 (E. & A. 1923). Dean Prosser puts it well in this fashion:
“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, ■upon the basis of some social idea of justice or policy.
This limitation is sometimes, although rather infrequently, one of the fact of causation. More often it is purely one of policy, of our more or less inadequately expressed ideas of what justice demands, •or of administrative possibility and convenience, none of which have ■any connection with questions of causation at all.” (Prosser, op. cit. supra, at 240-41). [at 77-78]

Even in conventional negligence cases, although the test of “foreseeability” is customarily applied and presents no problem in the relatively simple case, the requirement of foreseeability is abandoned where principles of logic, fairness and justice dictate that a defendant should he held liable even though the plaintiff’s harm was not logically foreseeable. The reported cases abound with such examples. See Glaser v. Hackensack Water Co., 49 N. J. Super. 591 (App. Div. 1958); Mitchell v. Friedman, 11 N. J. Super. 344 (App. Div. 1951); see Cafone v. Spiniello Construction Co., 42 N. J. Super. 590, 603 (App. Div. 1956); see Avedisian v. Admiral Realty Corp., 63 N. J. Super. 129 (App. Div. 1960); Restatement, Torts 2d, §§ 430-433A, 435, 439, 440-461; Prosser, op. cit, cc 9 and 10, at 282-357. Becognizing, even in negligence cases, that foreseeability is not always a prerequisite to liability, the Restatement, Torts 2d, § 435, has adopted a rule which permits liberal use of hindsight. As stated by Dean Prosser:

Recognizing these difficulties, there are courts which have thrown over the language of foreseeability, and have said outright that this becomes a matter of hindsight, which is to say of relating the consequences hack into the picture of the original negligence after they have in fact occurred.
The Restatement of Torts has offered much the same approach by saying that the defendant is not to be liable for consequences which, looking backward after the event with full knowledge of all that has occurred, would appear to be “highly extraordinary.” The language may be unfortunate; to one gifted with omniscience as to all existing circumstances, no result could appear remarkable, or indeed anything but inevitable, as a matter of hindsight. Certainly no element of mystery is necessary, or of ignorance as to what has happened. Perhaps the Restatement has come close to expressing the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlike, in the language of the street the cockeyed and far-fetched, even when we look at the event, as we must, after it has occurred, [at 307]

See Caputzal v. Lindsay Co., 48 N. J. 69, 78 (1966).

A different matter is presented where intentional acts are involved and it is clear that the rules of causation are more liberally applied to hold a defendant responsible for

the consequences of his acts. It is well settled that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his acts is a matter to be taken into account in determining whether there is a sufficient causal relation to plaintiff’s harm to make the actor liable therefor. His intention to commit a wrongful act, the degree of his moral wrong in acting, and the seriousness of the harm which he intended are important factors in determining whether he is liable for resulting unintended harm. In applying concepts of “foreseeability” and “proximate cause” in such cases there is more extended liability, and in a case involving such aggravated acts a fact finder may be permitted to find that the actor’s conduct bears a sufficient causal relation to a plaintiff’s harm so as to make him liable, although no such finding would be permissible if defendant’s conduct were merely negligent. Restatement, Torts 2d, §§435B, 501(2); Restatement, Torts, §870 (d); Prosser, op. cit., c. 9, § 50, at 302; Bauer, “The Degree of Moral Fault as Affecting Defendant’s Liability,” 81 U. Pa. L. R. 586, 592-596 (1933); 52 Am. Jur. Torts, §§32-33, at 382-383; 38 Am. Jur., Negligence, §52, at 700; Isham v. Dow, 70 Vt. 588, 41 A. 585, 45 L. R. A. 87 (Sup. Ct. 1898); State v. Glover, 330 Mo. 709, 50 S. W. 2d 1049, 87 A. L. R. 400 (Sup. Ct. 1932); see Morrison v. National Broadcasting Co., 24 A. D. 2d 284, 266 N. Y. S. 2d 406, 413, 16 A. L. R. 3d 1175 (App. Div. 1965), affirming as modified, 40 Misc. 2d 876, 243 N. Y. S. 2d 927 (Sup. Ct. 1963), rev. on other grounds, 19 N. Y. 2d 453, 280 N. Y. S. 2d 641, 227 N. E. 2d 572 (Ct. App. 1967); see Davidson v. National Broadcasting Co., 26 Misc. 2d 936, 204 N. Y. S. 2d 532 (Sup. Ct. 1960).

In Derosier v. New England Tel. & Tel. Co., 81 N. H. 451, 130 A. 145 (Sup. Ct. 1925), the court said on this point:

• * * In determining liow far the law will trace causation and afford a remedy, the facts as to the defendant’s intent, his imputable knowledge, or his justifiable ignorance are often taken into account. The moral element is here the factor that has turned close cases one way or the other. For an intended injury the law is astute to discover even very remote causation." " *
This is not because the defendant’s act was a more immediate cause in one ease that in the others, but because it has been felt to be just and reasonable that liability should extend to results further removed when certain elements of fault were present. Treating all these cases as turning upon an issue of immediateness of causation has resulted in much confusion of ideas and made the conflict of decisions appear to be greater than it is. Most of the cases wherein inability to foresee has been held to be an answer to the plaintiff’s claim of causation are those where the result was not immediate, but depended largely upon extrinsic and intervening causes. The result was somewhat remote, and a morally innocent party ought not to be held liable, though one morally guilty should be. The decisions do not turn on remoteness of causation alone, but upon such remoteness plus freedom from moral fault. [130 A., at 152]

A typical example of such extended liability is that exemplified by the doctrine of “transferred intent” as it is applied in intentional torts to the person. Restatement, Torts 3d, §16(3); Prosser, op. cit., at 36-37; 1 Harper & James, The Law of Torts (1956), §3.3, at 318. As stated by the authors in the latter treatise:

* * Indeed, it is not even necessary' that the defendant intend to invade the plaintiff’s interest if he intended to commit the battery on someone. Thus, by the fiction of “transferred intent,” a defendant who intends to strike a third person is liable if his blow miscarries and he strikes the plaintiff.
As has been pointed out, it is not easy to explain on logical principles the liability of one who, having directed a blow at one person, injures another, if he had no reason to believe the other was present and thus likely to be hurt. There is no intention to harm the plaintiff and no negligence toward him. The rule has been likened to that imposing liability without fault. A similar situation is ill’s olved in the rule that where the defendant intended to inflict a harmful or offensive contact, he is liable for the results even though they are unintended and unforeseeable. But as a matter of sound social policy, it is clearly better that the risk of such unintended and unforeseeable consequences should fall on the intentional wrongdoer than on his victim. The former is a tort-feasor and the latter is innocent. The wrongdoer, thus, should bear the loss, [at 218]

Li the recent decision in Tate v. Canonica, 180 Cal. App. 2d 898, 5 Cal. Rpir. 28 (D. Ct. App. 1960) the court said:

The law has for a long time recognized a distinction between intentional and negligent torts, and has generally recognized fewer defenses, and been more inclined to find that defendant’s conduct was the legal cause of the harm complained of, where the tort is intentional. (Cf. Holmes, “Privilege, Malice, and Intent,” in “Collected Legal Papers,” p. 117 ff; Civil Code, §§ 170S, 1714.) Indeed, it appears that many of the limitations upon liability that are subsumed under the doctrine of “proximate cause,” as usually expounded in negligence eases do not apply to intentional torts. * * *

And Dean Prosser has stated:

One area in which it may be especially likely that the “foreseeability” limitation will be cast aside is that of intentional torts, as to which it has been said often enough that there is more extended liability. This appears to be, however, more of a general attitude and an unexpressed tendency than anything like a concrete rule.
The objection frequently has been made that such decisions may impose a ruinous liability which no private fortune could meet, and which is out of all proportion to the defendant’s fault. To this it has been answered that if a great loss is to be suffered it is better that it should fall upon the wrongdoer than upon one innocent victim, or a hundred. “The simple question is, whether a loss, that must be borne somewhere, is to be visited on the head of the innocent or guilty.” But Hie difficulty lies not so much in any injustice to the defendant as in the delimitation of such liability beyond the risk. * * * [at 302, 303.]

The same principles apply in the application of the concepts of “intervening cause” and “superseding cause.” There is always a problem as to whether a defendant is to be held liable for an injuiy or damage to which he has in fact made a substantial contribution, when it is brought about by a later cause of independent origin for which he is not responsible.

It has been argued in this case, applying principles set forth in conventional malicious prosecution cases, that the prosecution of plaintiff was brought about by the intervening and independent acts of law enforcement authorities who filed the complaint against him after making their own investigation and appraisal, and that their acts should insulate defendant. See Magowan v. Richey, 64 N. J. L. 403 (Sup. Ct. 1900); Mac Laughlin v. Lehigh Valley R. Co., 93 N. J. L. 263 (Sup. Ct. 1919); Prostick v. Vroom, 129 N. J. L. 465 (E. & A. 1943); Annotation. “llcliance on advice of prosecuting attorney as defense to malicious prosecution action,” 10 A. L. R. 3d 1315 (1950). The above decisions were rendered in normal malicious prosecution cases where the defendant was not the perpetrator of the crime. The rationale of these cases is that if a citizen comes forth and tells a prosecuting officer truthfully what he knows and the prosecuting officer files a complaint, defendant is not liable for malicious prosecution. Obviously, these decisions are supported by a strong public policy in favor of having third persons come forward to aid in the prosecution of crimes without fears of reprisal by civil suits, but that underlying policy, as has heretofore been pointed out, is not applicable on the facts of this case.

Viewed from the point of proximate causation, it is largely a matter of policy, justice and fairness whether the acts of the prosecuting authorities in making a complaint or the acts of defendants’ co-conspirators in accusing plaintiff of complicity are to be deemed “intervening” or “superseding” causes which break the chain of causation from defendants’ acts or are simply to be considered “concurrent” or “contributing” causes which do not break the chain. Clearly, they were dependent acts or causes triggered by and related to defendants’ wrongful acts. As stated in Restatement, Torts 3d, § 441, at 466, “A dependent intervening force is one which operates in response to or is a reaction to the stimulus of a situation for which the actor has made himself responsible by his * * * conduct.”

As stated by Dean Prosser with respect to “intervening” and “superseding” causes in negligence cases:

In dealing with a large group of cases, it is convenient to adopt the language frequently used by the courts, and to speak of intervening causes, or intervening forces. On its face, the problem is one of whether the defendant is to be held liable for an injury to which he has in fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which he is not responsible. In its essence, however, it becomes again a question of the extent of the defendant’s original obligation; and once more the problem is not one of causation at all, since it does not arise until causation is established. It is rather one of the policy as to imposing legal responsibility. The older eases tend to ask the question, why should the defendant be held liable for harm brought about by something for which he is not responsible? The later ones tended to ask instead, why should he be relieved of liability for something that he has caused, along with other causes?” [Prosser, op. cit., at 309]

As is indicated above, even in negligence cases “foreseeability” is not always the test in determining whether the chain of causation will be deemed broken by an intervening cause, see Cafone v. Spiniello Construction Co., 42 N. J. Super. 590, 603 (App. Div. 1956); Prosser, op. cit., § 51, at 315 et seq., and, in cases of intended torts and aggravated acts, the courts are inclined to extend liability and hold that such acts do not break the chain of causation but are simply concurrent or contributing causes which do not relieve the original actor of liability. See Tate v. Canonica, supra; Prosser, op. cit., c. 9, §51, at 320, n. 9; Restatement, Torts 2d, §§440-452; Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, 12 A. L. R. 2d 183 (Sup. Ct. 1949), cert. den. 339 U. S. 924, 70 S. Ct. 614, 94 L. Ed. 1346 (1950). Again, once the matter of causation in fact has been established, the matter is largely one of policy, justice and fairness. See Rappaport v. Nichols, 31 N. J. 188, 205, 75 A. L. R. 2d 821 (1959); Menth v. Breeze Corporation, Inc., 4 N. J. 428, 18 A. L. R. 2d 1071 (1950).

What do the foregoing precedents demonstrate? Even in the case of negligent acts the courts have been hard pressed to lay down a test which affords a workable rule of law for limiting the liability of a defendant where his acts have a causal relation in fact to the harm suffered by the plaintiff. As stated by Dean Prosser:

It seems evident that in all of these proposed rules and formulae the courts and the writers have been groping for something that is difficult, if not impossible, to put into words: some method of limiting liability to those consequences which have some reasonably close connection with the defendant’s conduct and the harm which it originally threatened, and are in themselves not so remarkable and unusual as to lead one to stop short of them. It may be questioned whether anyone has yet succeeded in accomplishing more than the courts themselves have been able to achieve with the idea of such a reasonably close connection contained in the despised word “proximate,” which may have more in the way of merit than is usually credited to it. [Prosser, op. cit., at 309]

And he has further stated:

* * * “Proximate cause” cannot be reduced to absolute rules. No bettor statement ever has been made concerning the problem than that of Street: “It is always to be determined on the facts of each caso upon mixed considerations of logic, common sense, justice, policy and precedent. * * * The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.” [Ibid., at 288.]

In the case of liability for intended or aggravated acts, such as those involved here, although it is clear that there is extended liability and the rules of proximate causation are more liberally applied to hold a defendant liable, there is even less articulation in the cases of any workable rule which may be applied by a trial court. See Prosser, op. ciL, §50. at 303. In such case the court can only seek to draw upon such precedents as are available, applying the rules of causation with greater liberality than would be justified in a conventional negligence case. Foreseeability, as such, is not the test. If, weighing the moral fault of a defendant and applying the rules of causation liberally, the consequences have some reasonably close connection with defendants’ conduct and the harm threatened, and in themselves, using hindsight, are not deemed preposterous or far-fetched, defendant should be held liable. Concepts of policy, fairness and justice are entitled to great weight.

Applying the foregoing principles, it is the court’s conclusion that defendants are liable to plaintiff for the damages which he suffered because of his criminal prosecution. In effect, the holding of the court is that they are liable to him for malicious prosecution and there is no need to consider or pass upon defendants’ liability, if any, for any other consequences of their acts.

Here defendants performed intentional acts of moral turpitude condemned by our criminal laws. The acts were performed in conspiracy with others and with stealth. The properties burned were business properties and the burning was done in order to obtain insurance monies, obviously as a fast but effective way to liquidate the business and to convert the same into cash for the benefit of those who were the proprietors. It is not without significance that when the crime was first conceived, as well as during the time when the conspirators were actually conspiring and carrying their criminal plan into fruition, the employees of Malgreen, including plaintiff, were pressing defendants for the adoption of a profit-sharing plan which would reduce their share of profits to a much smaller portion thereof. It is not unreasonable to draw an inference that a contributory motive of the Greenbergs for the burning was a desire not only to retire from the business with cash but also to avoid turning over the fruits of the business to employees, including plaintiff, who were actually running the business and were seeking a larger share for their labors. Although defendants did not intend that plaintiff be prosecuted for their acts, it is not entirely clear that there was not some motive in their crimes for causing some harm to plaintiff and depriving him of future economic benefits. It is not necessary to make a finding in that regard, but it is clear that for all practical purposes there was an employer-employee relationship between defendants and plaintiff and that the crime was not unrelated to the business of which plaintiff was an employee.

In any event, so far as defendants were concerned, they knew they were committing crimes and, although foreseeability is not the sole test, it was certainly foreseeable to them that an investigation might follow and that criminal prosecution might follow. See Weaver v. Bank of America Nat. Trust & Sav. Assn., 59 Cal. 2d 428, 30 Cal. Rptr. 4, 380 P. 2d 644 (Sup. Ct. 1963). Since the properties burned were business properties, it was certainly foreseeable that suspects might include those on the inside who had something to do with the business. Since outsiders were included in the conspiracy and since some of the conferences in planning the conspiracy took place in the business office at the yard, it was foreseeable that the co-conspirators might not know who all the conspirators actually were and that other employees, although innocent, might give the appearance of being a part of the conspiracy or at least give some reason, simply from their presence, for suspicion that they were. It was foreseeable to defendants that there might be a falling-out between them and their co-conspirators, and that the consequences thereof could not be controlled by defendants. It was foreseeable that the co-conspirators might be apprehended and, particularly if defendants reneged on their end of the criminal scheme after the burning, that their co-conspirators might “talk,” and defendants knew that they could not control their co-conspirators in that regard. Finally, it is crystal clear that, but for the conspiracy and the burning, plaintiff would never have been subject to criminal prosecution.

As a matter of logic, justice and policy, considering the relationship of the parties and the facts presented, defendants are liable for such prosecution. Defendants performed wrongful and illegal acts which, in a real sense, were much akin to the proverbial throwing of the lighted squib into the crowded marketplace, Scott v. Shepherd, 2 W. Bl. 892, 96 Eng. Repr. 525, 38 Am. Jur., § 77, at 737. Although, as noted above, it is not necessary to define all the consequences of their acts for which they should be held liable, they are liable for the wrongful prosecution of plaintiff.

Having determined that defendants are liable to plaintiff because his wrongful prosecution was proximately caused by the wrongful criminal acts for which they were convieted, it is not necessary to pass upon other theories for imposition of liability.

Ill

No useful purpose would be served in reviewing the evidence in detail as to the damages sustained by plaintiff. He is entitled to the damages normally recoverable in a malicious prosecution case. He is entitled, among other things, to recover for his shame, humiliation, embarrassment, mental distress and damage to reputation. Although, as stated above, his mental distress was most acute during the period of approximately three weeks when the charges were pending against him, he continued to suffer for months thereafter, and his suffering was renewed and revisited upon him when newspaper articles, some five months after the charges against him had been dismissed, repeated the details of the charges against him. The manner in which the charges against him were dismissed gave him a rather cloudy vindication and he suffered the effects thereof. Although he cannot recover because of the shame and humiliation which his family suffered, he is entitled to recover for his own mental anguish caused by their distress. Flam v. Lee, 116 Iowa 289, 90 N. W. 70 (Sup. Ct. 1902); Prosser, op. cit., § 113, at 869. He testified as to the physical suffering which he underwent and the medical expenses which he incurred, and he is entitled to recover therefor. Some weeks after the charges were dropped he left his employment at Malgreen because the Greenbergs refused to pay for his legal expenses as they promised. He is entitled to recover for such legal expenses in defending the criminal charges against him and in defending a civil suit initiated against him by the adjoining property owners whose property was destroyed by the fire caused to be set by defendants. He had customarily done accounting work for private clients while he was working at Malgreen and he was deprived of income because of the loss of a portion of that work as the direct result of the charges against him. He is entitled to compensatory damages for all of these items.

A judgment will be entered in favor of plaintiff and against the individual defendants in the amount of $10,000 with costs. In the circumstances, his prayer for punitive damages is denied.

       The matter was apparently brought to a head when Abe Green-berg went to the police on or about June 14, 1S63 and complained that his life had been threatened by Wallace. Wallace was apprehended and “talked,” disclosing the conspiracy with the Green-bergs and claiming that the Greenbergs had reneged on paying him 25% of the insurance proceeds. Plaintiff was apparently implicated because of statements by Wallace that plaintiff had been present in tlie office at a conference or conferences held in furtherance of the conspiracy.

       It can be argued, particularly in view of the employer-employee relationship between the parties, Prosser, op. oit., § 54, at 337; see Szabo v. Pennsylvania Railroad Co., 132 N. J. L. 331 (E. & A. 1945), that once defendants knew plaintiff had been arrested they had a duty to speak and to come to his “rescue” to prevent further harm from occurring to him because of their original criminal acts. See Restatement, Torts 2d § 322; 1 Harper & James op. eit., § 7.14, at 588. It is unquestioned that defendants knew of all the proceedings against him and had ample opportunity to speak up in an endeavor to save him from harm. It is likely that, in order to comply with a duty to speak, they would have had to implicate themselves and waive their privilege against self-incrimination. A strong argument can be made that, although they were privileged not to incriminate themselves, they should nevertheless be held liable to plaintiff for failure to comply with a duty to speak and that the imposition of civil liability does not violate their constitutional rights. Duratron Corp. v. Republic Stuyvesant Corp., 95 N. J. Super. 527 (App. Div. 1967), certif. den. 50 N. J. 404 (1967). See Brown v. United States, 356 U. S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958) ; Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) ; Spevack v. Klein, 385 U. S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967) ; Annotation, “Testifying in civil proceeding as waiver of privilege against self incrimination,” 72 A. L. R. 2d 830 (1960) ; Annotation, “Dismissing Action or Striking Testimony where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question,” 4 A. L. R. 3d 545 (1965) ; Note; “Use of the Privilege Against Self-Incrimination in Civil Litigation”, 52 Va. L. R. 322 (1966) ; 8 Wignore, Evidence (1961), §§ 2250 to 2266. The court expresses no opinion on this point. Nor is it necessary to determine whether liability may be imposed upon some theory of defamation by association or concealment and nondisclosure. See Morrison v. National Broadcasting Corporation, supra; Davidson v. National Broadcasting Corporation, supra; 1 Harper & James, op. oil., § 7.14, at 588.


source: Caselaw Access Project

author: Bennett, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ROY PRICE, DEFENDANT.
    Superior Court of New Jersey Law Division—Criminal
    Decided January 6, 1970.

      Mr. Giacomo Rosati, Assistant Prosecutor appeared for plaintiff {Mr. Vincent Panaro, Prosecutor of Mercer County, attorney).

      Mr. John Wherry, Assistant Public Defender appeared for defendant {Mr. Charles PopTcin, Public Defender, attorney).
   Bennett, J. S. C.

(temporarily assigned) This case involves two pretrial motions which have been consolidated for purposes of hearing and decision. Indictment No. 813-68 charges defendant Roy Price with murder. The first motion is to dismiss the indictment on the ground that the evidence presented to the grand jury for its consideration was legally insufficient to sustain a true bill. The second motion is to suppress certain evidence seized as a result of a police search of Price’s apartment.

An indictment should be quashed only when palpably deficient. State v. Riley, 97 N. J. Super. 542 (Law Div. 1967) , cert. den. 390 U. S. 969, 88 S. Ct. 1085, 19 L. Ed. 2d 1177 (1968); aff'd. 101 N. J. Super. 402 (App. Div. 1968) . The transcript of the grand jury testimony in this case clearly indicates that sufficient evidence was presented to sustain an indictment. Although there was no eyewitness testimony before the grand jury, there was substantial and rationally persuasive circumstantial evidence upon which to find a true bill. Eurther, it is well established that the grand jury is permitted to both hear and act upon hearsay evidence or even evidence unconstitutionally obtained by the police. Costello v. United States, 350 U. S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1959); United States v. Blue, 384 U. S. 251; 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). If the evidence is either tainted or incompetent in some fashion, defendant has adequate legal remedies at a later stage in the proceedings against him. While a grand jury cannot be permitted to indict upon mere whim or caprice, it is only required to find that a crime was committed and that the accused person should be required to stand trial on the charge. State v. Riley, supra; Rosetty v. Township Committee of Hamilton Tp., 82 N. J. Super. 340 (Law Div. 1964), aff’d. 96 N. J. Super. 66 (App. Div. 1967). In this case there can be no doubt that the grand jury acted properly in basing its indictment on the evidence presented to it. The motion to dismiss the indictment is denied.

The motion to suppress is somewhat more complex. On April 6, 1969, at approximately 3 a.m., the Trenton police found the victim seriously injured at her home. She died from those injuries some ten hours later. Defendant occasionally performed odd jobs for the deceased woman. A witness placed Price at the scene of the murder for a short time at approximately 4:30 p.m. on April 5. On Monday, April 7, the day following the murder, Price was picked up by the police and transported to headquarters for questioning. In responding to his interrogators, Price allegedly gave confused and conflicting accounts of his whereabouts on the day of the murder. Later that evening the police charged Price as a material witness and held him for appearance in court. At his appearance the following morning the municipal magistrate advised Price of his rights and held him as a material witness on $10,000 bail. Price could not make the bail and was remanded to the Mercer County jail. On April 9, the following day, the police obtained a court order releasing Price into their custody “for the purpose of * * * reenactment of alleged violations of certain criminal statutes.” During this “reenactment” Price was escorted to his apartment, where the police entered, searched and then seized a variety of items. The police had not obtained a search warrant. The items seized during the search were sent to the State Police for laboratory tests. On Thursday, April 16, the Trenton police received an unofficial report from the State Police that certain pieces of evidence seized during the search incriminated Price in the murder. The following day, ten days after Price was originally arrested and held as a material witness, he was officially charged with murder.

The State challenges this motion on the ground that it fails to comply with the time requirements of R. 3 :5—7 (a).

* * * Such motion shall be made within 30 days after the initial plea to the charge unless, the court, for good cause shown, enlarges the time.

There is no dispute that the motion was not filed within the generally applicable 30-day period. This court recognizes that the purpose of the rule is to foster the early resolution of search and seizure questions and fully supports that policy. This court is also aware that both the rule and the case of State v. Raymond, 95 N. J. Super, 175 (App. Div. 1967) place the burden upon a defendant to show good cause for extending the time limit. However, this court is satisfied that the burden has been met here. The Public Defender in this county attempts to investigate proposed motions to suppress before filing, in order to satisfy himself that sound questions of law or fact exist. Since the Public Defender is aided by a limited staff and saddled with an increasingly burdensome case load, this process occasionally requires more time than that generally permitted by the rule. This is not to say that the Public Defender has a right to delay. Rather, the applicable test is reasonableness in light of all the circumstances. State v. Wade, 89 N. J. Super. 139 (App. Div. 1965). This court, considering the nature of this particular case and the complexity of the issues, legal and factual, involved therein, finds that the delay was reasonable and extends the time period of R. 3:5-7(a). That being so, the motion to suppress is validly made and will be decided on the merits.

The first task in analyzing the issues presented by this motion is to determine the purpose of the material witness procedure. The authority to confine material witnesses appears to have been unknown to the common law. 30 Wash. & Lee L. Rev. 164 (1963). The earliest statement of the procedure appears in an English statute, 3 & 3 Philip and Mary, c. 10 (1555), which is cited at 7 Catholic U. L. Rev. 37, 38 (1958) :

* * * the said Justices shall have Authority * * * to bind all such by Recognizance * * * as do declare any Thing material to prove the said Manslaughter or Felony against such Prisoner * * * to appear * * * where the Trial * * * shall be, then and there to give Evidence against the Party.

The material witness procedure, then, was originally designed to provide a means to insure that a witness who had vital information to give against one accused of crime would appear at the trial to testify.

In New Jersey the basic authorization for holding a person as a material witness is also statutory. N. J. S. 2A:162-2 provides:

Every judge and magistrate shall, when in his judgment the ends of justice so require, bind by recognizance, with sufficient surety, any person who shall declare against another person for any crime punishable by death or imprisonment in the state prison, or any person who can give testimony against any person so accused of any such crime, whether the offender be arrested, imprisoned, bailed or not.

Its associated statute, N. J. S. 2A:162-3, provides:

No person shall be committed to or detained in jail to secure his appearance as a witness against any person charged with a crime, except such crimes as are punishable by death or imprisonment in the state prison, whether the offender be arrested, imprisoned, bailed or not.
Any person committed or detained as a witness shall not be kept in the same apartment with or be provided with tlie same fare as persons charged with or convicted of crime. The board of freeholders of each county shall take care that all persons committed or detained as witnesses shall be comfortably lodged and provided for, and not further restricted of their liberty than is necessary for their detention.

New Jersey also has a court rule, B. 3:26-3, on the subject of material witnesses, obviously based upon the above-quoted statutory provisions:

Every judge shall, when the interest of justice requires, bind with sufficient surety all persons who can give testimony against one accused of crime punishable by death or by imprisonment in state prison, whether or not the offender is arrested, imprisoned or bailed.

It is noteworthy that the New Jersey provisions authorizing the binding by recognizance of material witnesses follow both the pattern and the purpose of the 1555 English statute by limiting use of the procedure to those cases where the person held has testimony to give against another person. It is also to be noted that the words “when the interest of justice requires” are designed in this statute to further limit the applicability of the procedure to those cases where the evidence possessed by the witness is important and the witness is unlikely to appear for trial without surety. In the instant case the police testified that they were aware of no evidence against any other person at the time defendant was charged as a material witness. In this regard the grand jury testimony of the police is enlightening. At page five of the transcript, the following statement appears:

Now we receive 15, 20 different stories. We figured at that time, he must know something about this case. Although, not a suspect at that time. He must know something that we want to know. He was placed under arrest at that time as a material witness.

Thus, the police not only failed to have an offender for Price to testify against, but only had a suspicion that he could provide any material information at all. Furthermore, all of the persuasive evidence in this case indicates that if, as the police claim, Price was not a murder suspect when charged as a material witness, he was, at least, a possible suspect. The strictly limited procedure authorized by New Jersey law was not intended to allow the detention of possible suspects on the mere suspicion that they know something. If there was sufficient evidence against Price when originally arrested, he should have been charged with murder at that time. If, as appears, there was insufficient evidence, Price should have been released after initial interrogation and not held as a material witness against a hypothetcial offender while the investigation focused on him. This conclusion is strengthened by a New York decision interpreting their material witness statute. Section 618—b of the New York Code of Criminal Procedure reads as follows:

Whenever a judge * * * is satisfied, by proof on oath, that a person * * *' is a necessary and material witness lor the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear * * * and be heard in opposition thereto, order such person to enter upon a written undertaking, with * * * sureties * * * and upon his neglect or refusal to comply * :i * the judge may commit him * * *.

While this court recognizes that the terminology of this statute differs from that of New Jersey, it is clear that the underlying purpose of each is identical. New York requires that a criminal action be pending in order to hold a material witness. However, New York courts have liberally construed this language to include the filing of an information or indictment, and even the holding of a grand jury hearing. 5 Syracuse L. Rev. 213 (1954). Yet, in People ex rel. Van Der Beek v. McCloskey, 18 A. D. 2d 205, 238 N. Y. S. 2d 676, 682 (1963), the New York court clearly held that the purpose of the material witness statute did not extend to the detention of potential defendants under investigation.

We have already alluded to the necessity for strict compliance with the provisions of section 618-b. * * *. The detention of a prospective material witness can serve a salutary purpose. However, the privilege granted by section 618-b may be abused if the procedure is used as a ruse to interrogate or hold a prospective defendant. * * * At a hearing, under section 618-b, it would thus bo appropriate, among other things, to raise the question as to whether the real purpose of the proceeding is to inquire into the person’s participation in a crime, rather than to hold him as a material witness to its commission.

It is apparent that Price was, in fact, held to inquire into his possible criminality rather than as a witness against another. There seems to be no reasonable interpretation of the New Jersey law concerning material witnesses consistent with the limited scope of the enabling language and the generally accepted purpose of the procedure giving the police jurisdiction to hold a potential defendant as a material witness. That being so, it is incumbent upon this court to find that the arrest and incarceration of Price as a material witness was illegal.

However, this finding does not end the inquiry. The fact that Price was illegally arrested and detained need not bear any necessary relationship to the evidence intended for use against him. In order to find some taint under the “fruit of the poisonous tree” doctrine, one must find that the illegality caused some later prejudice. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In this case, the police obtained the challenged evidence by conducting a search of defendant’s apartment without the authorization of a search warrant. Since defendant had been arrested and held in police custody for more than a day before the search took place, it cannot be justified as either incident to an arrest or falling under an exigent circumstances rule. See State v. Naturile, 83 N. J. Super. 563 (App. Riv. 1964), and cases cited therein. Thus, the validity of the police search rests upon the consent of defendant himself. If the consent was, in fact, voluntarily given, the illegal arrest and incarceration provides no bar to the admissibility of the evidence seized during the search. It is clearly established in Hew Jersey that determining the voluntariness of consent to a search is a factual issue to be decided by the hearing judge. See State v. King, 44 N. J. 346 (1965), and cases cited therein. It is also well settled that the burden of proof is on the State to demonstrate, by clear and positive testimony, defendant’s unequivocal and specific consent freely and intelligently given. State v. King, supra; State v. Gaudiosi, 97 N. J. Super. 565 (App. Div. 1967).

The grand jury testimony of the police is again illuminating, this time on the subject of voluntary consent. At page seven of the transcript, one reads the following:

Now, to know this man, to speak with this man, it has to be realized he’s very, very low mentality * * * He didn’t try to explain anything at all. In other words, he would go along. You can suggest to him, which we didn’t do, but it was obvious that we could.

Tn light of this description, it is necessary carefully to scrutinize the circumstances under which the consent is claimed to have been given. It will be recalled that after Price had spent approximately two days in legal custody, the police sought and obtained a court order releasing him from jail for the purpose of a “reenactment.” Price was escorted to various places in Trenton by the police, ostensibly in order to check out his confusing and contradictory stories. One of those stops was at Pricers apartment where the search and seizure took place. The police testified that they asked Price if they could enter and that he assented. However, the police admitted that Price never gave any explicit statement of consent to a search, even though he never remonstrated with them in any way. Price testified that he had no idea why the police desired to enter his apartment.

This court finds several important factors in deciding the validity of the search in question. First, there is no convincing evidence that Price was informed or was aware that the police intended to search his apartment. Second, if there was any consent at all in this case, it was tacit in nature and not evidenced by explicit statements or acts consistent with knowing and voluntary consent to a search. Third, the search did not occur in a setting devoid of implied coercion. Price was in police custody, reenacting his whereabouts on the day of the alleged crime at their instance and under their direction and control. Fourth, Price is, by police admission, a man who is easily led and subject to suggestion by others. Fifth, neither the reenactment nor the search could have occurred in this fashion if Price had not been illegally arrested and detained as a material witness. It cannot be forgotten that the police could have obtained a search warrant but did not. With all of these factors, it is impossible for this court to find that the State has met its heavy burden of proof by clearly demonstrating that Price freely, clearly, intelligently and voluntarily consented to the search of his apartment. This court does not find that Price was overtly coerced by the police or that he was deliberately tricked or manipulated by them. However, a man who is admittedly easy to lead is likely to be affected by coercive circumstances as well as by verbal suggestion of a more direct nature. Even if there was a tacit consent to the entry and search of his apartment, under the circumstances of this case it was the inevitable result of the situation under which it was obtained, the implied coercion of an illegal arrest, incarceration and investigation, rather than a purely voluntary act. Thus any such tacit consent constitutes the fruit of those ■ illegal acts and must be disregarded.

Since the police failed to obtain a search warrant, and the consent upon which they relied to justify the search was invalid, there is no remaining principle of our law upon which the search of defendant’s apartment can be upheld. In such a case, defendant’s motion is granted and all evidence obtained as a result of the search in question is suppressed.


author: Simpson, J. C. C.

text:
    BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ET ALS., PLAINTIFFS, v. JOHN A. KERVICK, TREASURER OF THE STATE OF NEW JERSEY, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 13, 1970.

      Mr. John A. Schepisi appeared for Borough of Bidgefield (Messrs. Breslin & Monaghan, attorneys).

      Mr. Charles A. Landesman appeared for defendants {Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Frank A. Carlet appeared for City of Clifton {Mr. Arthur J. Sullivan, Jr. City Counsel, attorney).

      Mr. Robert S. Moraff appeared for Township of Wayne.

      Mr. Louis Wallisch, Jr. appeared for Township of West Milford.

      Mr. Lawrence T. Isenberg appeared for Borough of Pomp-ton Labes.

      Mr. Bruce M. Schragger appeared for Township of Ewing.

      Mr. Douglas G. Bor chard, Jr. appeared for Borough of Hawthorne.

      Mr. Stephen R. Spector appeared for Borough of Dumont and Borough of Rochelle Park. (Messrs. Gross and Gross, attorneys).

      Mr. James V. Segretto appeared for Borough of Haledon.
    Mr. Allan M. Harris appeared for Borough of West Paterson (Mr. J. Mortimer Bubenstein, attorney).

      Mr. John M. Running appeared for Borough of Ringwood.

      Mr. Edward E. Weiss appeared for Borough of North Hale-don.

      Mr. Louis Schwartz appeared for Borough of Totowa.

      Mr. Nathan Bernstein appeared for Borough of Wanaque.

      Mr. Sam Weiss appeared for City of Newark.
   Simpson, J. C. C.

(temporarily assigned). In these four consolidated cases a number of municipalities and one individual taxpayer challenge the constitutionality of N. J. S. A. 54:ll¿-7. This statute is part of the so-called business personal property tax replacement program. Pursuant to N. J. S. A. 54:1111-1 the revenues from the unineorporated business tax, the state-assessed tax on business personal property, the retail gross receipts tax and a portion of the corporation business tax are distributed to the municipalities of New Jersey “in replacement of the revenues derived by such municipalities from the local taxation of personal property used in business.”

There is no objection, constitutional or otherwise, to the revenue replacement principle, or the manner of determining and distributing the amounts thereof. The dispute concerns a portion of N. J. S. A. 54 :llD-7 which provides :

For tlie purpose of apportioning the amounts to be raised in the respective taxing districts of the county under Revised Statutes 54:4-49, the county board of taxation shall, for each taxing district, include in the equalization table for the county the assumed assessed value of the property represented by the money received by each taxing district pursuant to the provisions of this act.
Commencing with the tax year 1969 and thereafter the assumed assessed value of such property in each taxing district shall be determined by the county hoard of taxation in the following manner: (a) the amount of money received by each taxing district during the preceding tax year pursuant to the provisions of this act, shall he divided by the general tax rate of the taxing district for such preceding tax year to obtain an assumed assessed value of such property; (b) this assumed assessed value shall be divided by the fraction produced by dividing the aggregate assessed value by the aggregate true value of the real property, as deiermined by the county board of taxation for equalization purposes in the current tax year, exclusive of Class II railroad property, in the taxing district ; and (c) the resulting quotient shall be included in the net valuation of each taxing district on which county taxes are apportioned.

Plaintiffs contend that the process whereby the “assumed assessed values” of their replacement revenues are calculated for inclusion in the equalization tables by the county boards of taxation in arriving at apportionment valuations for county tax purposes, is unconstitutional. Defendants are four county boards of taxation, the Director of tlie Division of Taxation, and some municipalities that benefit from the current application of the statute.

A number of schedules, containing many figures and percentages, were introduced into evidence by the City of Clifton. This municipality in 1969 received $2,630,916. in replacement revenues, or 33.0689% of the total for all municipalities in Passaic County. Eor the same year Clifton paid $728,527, or 45.5263% of the total Passaic County taxes allocated to the “equalized assumed assessed value” of replacement revenues of the municipalities in that county. In addition, the following significant figures appear for that city:

1964

1965

1966

1967

1968

1969

1.

Percentage share of county taxes allocated to real property

25.2430

24.6966

23.9710

23,8944

23.9309

23.7392

2.

Percentage share of county taxes allocated to personal property

(1)

45.2242

(2)

32.2686

(2)

33.2194

m

'(2) (

L

(3)

33.3995

(

L 37.1101

45.5263

3,

Percentage share of total county taxgs

27.5585

25.2657

24.6173

24.5428

24,4869

25.3212

4.

General

tax

rate

$ 2.82

(

1.98 8

t

2.00 )

C

2.26

2,49

2.64

( (4)

8

t C4>

)

C C4)

5,

Ratio aggregate assessed to aggregate true value of real property

99.76

99.07

94.98

92.65

88.34

85.86

1 Based upon “unequalized” valuations of business personal property.

2 Based upon “equalized” valuations of business personal property.

3 Based upon “equalized assumed assessed value” of replacement revenues received under N. J. S. 54:11D-1 et seq.

4 Applicable to all except Business Personal Property, the rates for which were $3.56 for 1967, $3.00 for 1966, and $3.12 for 1965.

There was undisputed evidence that Passaic County “mirrors” the other counties of New Jersey, except for a lack of resort communities, in that it contains old and new cities, suburbs and semi-rural areas. Counsel stipulated that in 1964 the tax assessors of Pasasic County did not assess business personal property at 100% of true value and that, in fact, they assessed at varying degrees thereof. Clifton’s expert and assessor, Albert J. Greene, Jr., concluded that the foregoing figures show that for the City of Clifton the result of N. J. S. A. 54:llD-7 was an assumed assessed value of replacement revenues bearing a ratio to the total thereof in Passaic County approximately as did nneqnalized business personal property aggregate valuations in 1964. There was proof also that Clifton used 1964 as its base year for the determination of minimum replacement revenues pursuant to N. J. S. A. 54:11D—2, and that some of the other 15 municipalities in Passaic County used each of the possible base years 1964, 1965, 1966 and 1967 for the calculation thereof.

Needless to say, Greene was of the opinion that application of N. J. S. A. 54:llD-7 resulted in substantially discriminatory and unequal treatment of taxpayers and taxing districts. He also claimed these results could be avoided in a number of ways, and illustrated three of them. Not unexpectedly, those municipalities for whom application of the statute results in a relatviely high percentage of replacement revenues going to the counties for county tax purposes, became plaintiffs in these cases, while those that apparently benefited from the formula joined the county boards and Director of Taxation as defendants. Tn all eases, however, the dollar amount of replacement revenues exceeded the amount paid by a municipality in county taxes which was calculated upon the equalized assumed assessed value of replacement revenues. The real complaint of plaintiffs is that the application of the statute is not as advantageous to them as it is to other municipalities. While the column 3 figures, above, indicate that the over-all effect of the challenged statute is very slight, the column 2 ñgures and a comparison of the column 1 figures with those of column 3 do show that its application to Clifton results in an increase in that city’s share of county taxes. The statute is said to violate the tax clause of the New Jersey Constitution (1947) and the equal protection of law clause of the Fourteenth Amendment to the United States Constitution.

Plaintiffs carry a heavy burden of overcoming the presumption of constitutionality of N. J. S. A. 54:11D—7, Thomas v. Kingsley, 43 N. J. 524, 534 (1965); indeed, the presumption is so strong that

“a legislative act will not be declared void unless its repugnancy to tlie Constitution is clear beyond a reasonable doubt. Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 388 (1959).

The purpose of N. J. S. A. 54:llD-7 is readily apparent, when read together with N. J. 8. A. 54:11D-1 et seq. It seeks to convert the replacement revenues, received by the municipalities, into assets to be “equalized” with real property in the municipalities and included with the aggregate valuations thereof for apportionment of county taxes. The capitalization of “in lieu” revenues, and the equalization thereof with real property assessed valuations, for purposes of allocating the burden of county taxes, is a familiar concept. N. J. S. A. 55:14J-30; N. J. S. A. 40:550-65. While the concept is appealing as an apparent attempt to fairly allocate a tax burden on an “ability to pay” basis, the wisdom of the statute is for the Legislature and not the courts. Thomas v. Kingsley, supra, at 530.

Art. VIII, § I, par. 1(a) of the New Jersey Constitution provides:

(a) Property shall be assessed for taxation under general laws and by uniform rules. All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value, except as otherwise permitted herein, and such real property shall be taxed at the general tax rate of the taxing district in which the property is situated, for the use of such taxing district.

Plaintiffs do not dispute the power of the Legislature to tax real and personal property differently, and even to categorize the latter into classes, for greater or lesser burdens of the cost of government. Switz v. Kingsley, 37 N. J. 566, 586 (1962). This being so, it is of no moment whether the capitalized assets represented by the replacement revenues are deemed to be personal property or some other undefined kind of property, since they certainly are not real property. The requirements of the second sentence of Art. VIII, § 1, par. 1(a) of the New Jersey Constitution (1947) cited above, only pertains to real property assessments. Accordingly, all that is required in the context presented, to preclude invalidity under New Jersey’s “general laws and uniform rules” constitutional provision, or the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, is that practical equality be achieved. Switz v. Kingsley, supra, at 589; General Electric Co. v. Passaic, 28 N. J. 499, 509 (1958).

Since it is obvious from the wording that N. J. S. A. 54 :llD-7 is general and uniform in its overall applicability, it is clear that plaintiffs’ complaints relate to the component parts thereof. In summary, the statute provides a two-part formula whereby, for each municipality, (a) the preceding year’s replacement revenues are divided by the preceding year’s general tax rate to obtain an “assumed assessed value” thereof, and (b) the latter is “equalized” by dividing same by the ratio of aggregate assessed value to aggregate true value of the municipality’s real property for the current year as determined by the county board of taxation. The alleged deficiences fall into two categories: first, that the assumed assessed values are illusory, and second, that the use of 1964, 1965, 1966, and 1967 base years personal property tax figures in calculating minimum replacement revenues and allocating county tax costs, induced inequality.

As already noted, the assumed assessed value of replacement revenues represents a theoretical capitalization of revenues produced by four state taxes. Since the Legislature undisputedly has the power to determine the portion of governmental costs to be borne by real property vis-a-vis other property, there is nothing inherently invidious in the (a) and (b) portions of the N. J. S. A. 54:11D—7 formula that converts the replacement revenues into capitalized assets and then equalizes the same with real property assessments in the municipalities. It is true that other methods could have been used, but this is a matter for the Legislature and not the judiciary. Illusory as the assumed assessed values may be, in the sense of familiar concepts of real and personal property, they represent actual assets of each municipality and thus qualify for the burden of county taxes that the legislature determines to impose thereon. Whatever constitutional problems might arise in the event allocated shares of county taxes exceeded the actual replacement revenues, are not reached, of course, since such is not the situation in the instant case.

N. J. S. A. 54:llD-2 and 5 provide minimum replacement revenues each year for every municipality in the highest amount of the taxes received by each municipality upon assessments of personal property used in business in 1964, 1965, 1966 or 1967. Plaintiffs correctly point out that the result of this use of different figures from different base years, for the various municipalities, together with the fact that personal property assessments were “equalized” for 1965, 1966 and 1967, but not for 1964, results in an absence of rational relationship or comparability of the respective figures with real or personal property assessments of any municipality for any given year. Again, the desirability of this is a matter for the Legislature, and it is true that other methods could have been used, as Clifton’s assessor testified. But the State Constitution does not require the particular relationship or comparability that plaintiffs herein assert to be desirable. Thomas v. Kingsley, supra, is almost directly in point, and it is clear that the constitutional tests of adequate public need and reasonably appropriate legislative treatment are met. It is self-evident that the replacement revenues may fairly bear a portion of county taxes, and the capitalized asset values thereof are clearly comparable among themselves despite their ■derivation from various base years. Again, it is noted that plaintiffs did not show that any municipality’s share of county taxes, allocated to the assumed assessed value of replacement revenues, exceeded the actual replacement revenues, so no possible constitutional problems arising from any such situations, are reached.

N. J. S. A. 54:llD-7 is therefor constitutional and judgment will be entered in favor of defendants.


author: McGann, J. C. C.

text:
    CLAUDINE C. BIGER, PETITIONER-RESPONDENT, v. DR. R. C. ERWIN AND/OR E. B. STEWART, RESPONDENTS-APPELLANTS. CLAUDINE G. BIGER, PETITIONER-RESPONDENT, v. MONMOUTH PARK JOCKEY CLUB, RESPONDENT-APPELLANT.
    Monmouth County Court, Law Division
    Decided January 16, 1970.

      Mr. Herbert E. Greenstone appeared for petitioner-respondent (Messrs. Greenstone & Greenstone, attorneys).

      Mr. Peter P. Kalac appeared for respondent-appellant Dr. R. C. Erwin (Messrs. Lane & Evans, attorneys).

      Mr. John W. O’Brien appeared for respondent-appellant E. B. Stewart (Messrs. O’Brien, Bretl & O’Brien, attorneys).

      Mr. William F. Perry appeared for respondent-appellant Monmouth Park Jockey Club (Messrs. Schneider and Morgan, attorneys).
   McGann, J. C. C.

This is a workmen’s compensation appeal. The facts are not in dispute. The legal consequences of those facts are.

Pierre Biger was a jockey. He died on July 10, 1967 as a result of injuries received while riding in a steeplechase race at Monmouth Park. The horse on which he was riding at the time, “Cosmic Bull,” was owned by respondent Dr. E. C. Erwin and trained by respondent E. B. Stewart. A dependency claim petition was filed on behalf of decedent’s widow and infant son against Erwin and Stewart. A separate petition was filed against the owner of the race track, the Monmouth Park Jockey Club, and consolidated for hearing purposes.

The issues presented are these: (1) Was Biger an employee or an independent contractor? (2) If he was an employee, was the employment “casual” (and not covered by workmen’s compensation) ? (3) If he was an employee, who was his employer? The compensation judge found that Biger was an employee, not casual in nature, and awarded benefits against both Erwin and Stewart as employers. He found no employment relationship with Monmouth Park Jockey Club.

Dr. Erwin is a physician and surgeon living and practicing in Allentown, Pennsylvania. He owned a number of race horses, among them “Cosmic Bull.” All of these horses were trained by Stewart, whom Erwin had first met in 1965. There was a verbal agreement between Erwin and Stewart whereby Stewart would train, feed and handle the horses for $17 a day each plus 10% of any of their winnings. I find that once the horse was turned over to Stewart, he had complete charge of it. Dr. Erwin relied completely on his judgment. Stewart could and did move the horses from track to track as the season progressed; he decided when to enter the horses in races; his was the selection of the jockey who would ride the horse. As owner, Dr. Erwin had the right to countermand Stewart’s decisions and to make judgments affecting the horse and selection of its jockey, but in fact he never did so. Erwin would pay the jockey from an owner’s trust account which he maintained with Monmouth Park Jockey Club in accordance with the rules of the New Jersey Racing Commission. Erwin did not have any particular jockey under contract to ride for him. When the services of a jockey were required, Stewart would engage a “pool” or “freelance” jockey. In addition to training Erwin’s horses, Stewart also trained for other owners as well as horses of his own. He never considered the jockeys to be his employees unless they were riding horses owned by him.

Both Erwin, as owner, and Stewart, as trainer, were required by the rules of the Racing Commission to maintain workmen’s compensation insurance coverage for their employees. Both had such coverage at the time of this incident.

A few days before July 10, 1967, and while Stewart and “Cosmic Bull” were at Belmont Park in New York, Stewart decided to enter the horse in a steeplechase race to be held at Monmouth Park as the third race on July 10. He spoke with Bobby McDonald, a “pool” rider then at Belmont, and McDonald agreed to ride the horse. Stewart made the entry of “Cosmic Bull” in the race by telephone and listed McDonald as the rider. All of this was in accordance with rule 601 of the Commission which provides:

A. licensed Trainer may represent the owner in the matter of entries, declarations, and the employment of jockeys.

On the morning of the race McDonald came to Stewart, told him he had a chance to ride a better horse that (lay, and asked to be excused from his agreement to ride “Cosmic Bull.” He told Stewart that he already had another jockey, Biger, “lined up” to ride in his place. Stewart had never met Biger, but agreed to the change. Stewart first met Biger that day in the paddock just before the race and after the horse had been saddled. Biger wore the colors of the owner, Dr. Erwin. Stewart gave Biger some brief instructions as to the manner in which the horse should be raced. During the course of the race Biger reecived the injuries which led to his death.

Monmouth Park is one of the three licensed “fiat” racing tracks in New Jersey. It is owned and operated by the Monmouth Park Jockey Club and is subject to all the rules and regulations of the New Jersey State Racing Commission. It does not directly employ any jockeys. It does maintain owners’ trust accounts and pays jockeys on behalf of the owners from those accounts. It also provides locker room, health and recreational facilities for jockeys. Under the rules of the Commission, it does have the right to prohibit certain jockeys from riding at the track if it is felt that their presence is not in the best interests of racing. This power is exercised rarely. See Martin v. Monmouth Park Jockey Club, 145 F. Supp. 439 (D. C. N. J. 1956), aff’d 242 F. 2d 344 (3 Cir. 1957).

The controlling statute, N. J. S. A. 34:15-36, in its pertinent portions provides as follows:

“Employer’' is declared to be synonymous willi master, and includes natural persons, partnerships, and corporations; “employee” is synonymous with servant, and includes all natural persons, including oflicers of corporations, who perform service for an employer for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer’s business, as employment, the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; * * *.

To determine whether an employer-employee relationship exists for purposes of workmen’s compensation coverage, our courts have emphasized certain aspects of such a relationship, i. e., (1) the employer’s right to control the details of the employee’s work; that is, not only the results to be accomplished but the manner in which the business or work shall be done; (2) the right to discharge; (3) whether the service was performed for a financial consideration. Mahoney v. Nitroform Company Inc., 20 N. J. 499 (1956); Gross v. Pellicane, 65 N. J. Super. 386 (Cty. Ct. 1961).

The degree of control necessary to constitute an employer-employee relationship will vary depending on the relative nature of the work involved. Thus, where the employee has special skills the degree of control over details by the employer will be minimized. Brower v. Rossmy, 63 N. J. Super. 395 (App. Div. 1960).

As stated in Marcus v. Eastern Agricultural Ass’n., Inc., 58 N. J. Super. 584, 590 (App. Div. 1959), rev. on other grounds 32 N. J. 460 (I960),

The status of the petitioner is to be resolved upon the totality of the facts surrounding the relationship with due regard for the attendant circumstances, the object in view, and the course of practice in its execution.

All of these “tests” have been synthesized “under the totality of circumstances” of the individual case into the so-called “economic dependence” test, i. e. “the extent of the economic dependence of the worker upon the business he serves and the relationship of the nature of his work to the operation of that business.” Brower v. Rossmy, supra, 63 N. J. Super., at 406.

It is to be observed that our courts, in view of the basic objective of construing workmen’s compensation coverage as liberally as possible, Hannigan v. Goldfarb, 53 N. J. Super. 190, 195 (App. Div. 1958), have devised more and more refined tests. That is not to say that we should ignore traditional concepts of the employer-employee relationship as well as fundamental principles of the law of agency in order to find as many employers as possible for one individual. The instant case furnishes a good illustration of that point.

Petitioner seeks a declaration that her husband was simultaneously the employee of Erwin, Stewart and the Monmouth Park Jockey Club. Each of the putative employers carries workmen’s compensation insurance. Under those circumstances there is no reason to go beyond the actual relationships among the parties as it must have been clearly and reasonably understood by them.

Applying the three basic tests in the totality of circumstances of this case, it is obvious that Monmouth Park was not an employer of Biger. It had no right to control the details of his ride; it had no right to .hire or fire him; it advanced no financial consideration to him nor did it receive any from him.

It is equally obvious that Biger was an employee of the owner, Erwin. Erwin, if he had chosen to do so, could have exercised control over .Biger’s ride (to the extent practicable under the relative nature of the work). He certainly had the right to hire and fire the jockey who was to ride his horse. It was to him that the jockey looked for payment through his owner’s trust account. It is the existence of the right to exercise control and to hire and discharge that is determinative; not the actual exercise of those rights. Mahoney v. Nitroform Company, Inc., supra.

Was Biger also the employee of Stewart? Stewart had been given the right to control and to hire and fire by Erwin. He did not pay the jockey nor did the jockey look to him for payment. He was paid from the owner’s account at the track. All of Stewart’s activities in connection with Biger were solely as agent for Erwin, and this was clear to Biger. Biger knew he was riding for Dr. Erwin, not Stewart, and that he would be paid by Erwin, not Stewart. Biger was not an employee of Stewart.

Was Biger’s employment by Erwin through Stewart “casual employment” and excepted from coverage. Casual employment is defined in N. J. S. A. 34:15-36:

* ® * if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental * * *.

Erwin was in the business of owning and racing horses. The engagement of a jockey’s services to ride those horses most clearly is connected with that business. Keeping in mind the nature of the racing business, that horses are not run on a regular periodic schedule but only when many unpredictable circumstances are deemed right by the owner or trainer, the occasion for employment of a jockey to ride “Cosmic Bull” cannot be said to arise by chance or to have been purely accidental. “Cosmic Bull” was a race horse. It would need a jockey whenever it was raced. The occasion for racing did not arise by accident or chance but was the result of a well considered judgment. Gross v. Pellicane, supra, at 394. The fact that Biger actually turned out to be the jockey rather than someone else is no more employment by chance than is the hiring of a carpenter from a union hiring hall. Malloy v. Capitol Bakery Inc., 38 N. J. Super. 516 (Law Div. 1955). This employment was not casual.

The judgment of the Division of Workmen’s Compensation is reversed insofar as the trainer, E. B. Stewart, is concerned. It is affirmed as to the owner, Dr. N. C. Erwin and the Monmouth Park Jockey Club.