author: Collester, J. A. D.

text:
    FRANK BROWN, PLAINTIFF-RESPONDENT, v. FLORENCE MORTIMER AND SHERRY SCHULTZ VAN DORNICK, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1967
    Decided April 18, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Robert W. Criscuolo argued the cause for appellant Sherry Schultz Van Dornick (Mr. Bobert J. Partlow, on the brief; Messrs. Parker, McCay & Criscuolo, attorneys).

      Mr. George Y. Schoch argued the cause for appellant Florence Mortimer.

      Mr. Sidney P. McCord, Jr., argued the cause for respondent (Messrs. McCord, Farrell, Eynon and Munyon, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal from a judgment entered following a jury verdict awarding plaintiff Prank Brown damages of $10,000 against defendant Sherry Van Dornick for personal injuries sustained in this automobile negligence action and a finding of no cause for action on the counterclaim of defendants Sherry Van Dornick and Florence Mortimer. Defendants’ motion for a new trial was denied by the trial court.

The litigation resulted from an automobile collision which occurred at about 5:20 p.m. on Sunday, May 3, 1964, at an intersection of traffic lanes in the parking lot of King’s Department Store in Edgewater Park Township. The pertinent facts are as follows.

Plaintiff testified that having completed his shopping in the store, he drove his Volkswagen bus, in which his wife and child were passengers, along a traffic lane in the parking lot which ran parallel with Koute 130. He intended to go to a road which led from the store to Cooper Street. He said that as he approached an intersecting traffic lane in the lot which extended from the store towards Route 130 he made observations to his left and saw no car approaching. He looked to his right and saw a car some distance away coming from Route 130. He testified that he then drove slowly into the intersection where his automobile was struck on the left side, near the driver’s seat, by a motor vehicle driven by defendant Sherry Van Dornick (then Sherry Schultz). As a result of the accident plaintiff sustained injuries.

Chief Henry Van Brunt of the Edgewater Park Police Department testified that Lieutenant Wagner, who had investigated the accident, was unable to testify because he was serving with the armed forces in Vietnam. (It is undisputed that Lieutenant Wagner arrived at the scene of the accident shortly after it occurred and before the injured persons were hospitalized.) Chief Van Brunt testified that the lieutenant prepared a police report which had been filed in his office. Defendants objected to Van Brunt’s testifying because his name had not been given in answers to interrogatories as a person who had relevant knowledge of the accident. The court ruled that the witness could testify as the custodian of the report.

The chief thereupon identified the report which contained a diagram showing the location of the cars and skidmarks at the scene of the accident. It showed skidmarks leading up to the rear of defendants’ car 14' to 17' in length and ending in scuff marks to the left in the intersecting lane 3' to 4' in length. The chief further testified that it was the usual procedure for an investigating officer to secure the information necessary to prepare a report on a standard form issued by the Division of Motor Vehicles, including a diagram of the scene of the accident, and that such procedure is followed whether the accident occurred on either the public highway or private property.

The trial court, over defendants’ objections held that the police report was admissible in evidence under section 35 of the Business Eecords As Evidence Act, N. J. S. 2A :82-34 et seq. In view of the ruling defendants withdrew an earlier objection they had made to the testimony of John Shedosky, a police photographer, and the admission of photographs he had taken, which objection had been sustained by the trial court.

Shedosky testified that at Lieutenant Wagner’s direction he met the lieutenant at the parking lot at about 6 :30 p.m. following the accident. He said he took photographs of the skidmarks and scuff marks and assisted Wagner in measuring them. He also took photographs of the damaged automobiles which had been towed to a service station.

Defendants’ version of the accident contradicted that given by plaintiff. Mrs. Van Dornick testified that she was operating an automobile owned by her mother, Florence Mortimer, in which her two children and Mrs. Mortimer were passengers. She said that having completed shopping in the store she drove the car in a parking lot traffic lane headed towards Eoute 130 at a speed of about 5 m.p.h. When she reached the intersecting lane she stopped her car. She looked to her left and right and saw no cars approaching; She testified she then drove four feet into the intersecting lane and again stopped when she saw plaintiff’s ear approaching on her right side. She said that after her car was stopped it was struck by plaintiff’s motor vehicle. Mrs. Mortimer’s testimony substantially corroborated that given by her daughter. She said she observed skidmarks on the lane where her car was pushed sideways but saw no other marks.

The photographs taken by Shedosky showed damage to the left side near the front of plaintiff’s Volkswagen and to the grill, hood and right front fender of defendants’ car.

Defendants raise three points: (1) the court erred in admitting the police report in evidence; (2) the court erred in permitting witnesses to testify who were not named as prospective witnesses in plaintiff’s answers to interrogatories, and (3) the verdict was contrary to the weight of the evidence.

I

We deal first with defendants’ second point — that the court erred in permitting Chief Van Brunt and Officer Shedosky (the police photographer) to testify although their names were not listed in an answer to an interrogatory requesting the names of all persons who had relevant knowledge of the accident.

It is well settled that parties to litigation may through discovery proceedings elicit from their adversaries the names of witnesses proposed to be used at the trial, R. R. 4:16-2 and 4:23-9, and that failure to provide the same may result in sanctions imposed by the court excluding their testimony. R. R. 4:27-2(b)(2); Burke v. Central Railroad Co. of N. J., 42 N. J. Super. 387, 394-95 (App. Div. 1956). The‘application of sanctions is consigned to the sound discretion of the court; subject only to the rule that the sanction visited upon the party must be just and reasonable. Our cases recognize three factors which, if disclosed by the circumstanees of the particular case, strongly urge the trial court, in the exercise of his discretion, to suspend the imposition of sanctions, namely, (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence. Branch v. Emery Transportation Co., 53 N. J. Super. 367, 375-76 (App. Div. 1958).

As to the first factor mentioned in Branch, defendants concede that there was no intention on the part of plaintiff to mislead them. We are satisfied that defendants were neither surprised nor prejudiced when Chief Van Brunt was called upon to testify as the custodian of the police report. They knew of the existence of the report and had previously been advised that Lieutenant Wagner, who had prepared it, would be called as a witness. Since the lieutenant was with the armed services in Vietnam and unavailable we conclude there was no mistaken exercise of discretion by the court in permitting Van Brunt to testify as the custodian of the record. Moreover, Chief Van Brunt’s testimony concerning established police procedures for the preparation and filing of an accident report was clearly not barred by plaintiff’s failure to list him as a witness who had relevant knowledge of the accident.

Defendants’ similar argument with regard to the testimony of Officer Shedosky and the admission of photographs taken by him is without merit since at trial they withdrew their previously sustained objections to such evidence.

II

We consider next defendants’ contention that the police report should not have been admitted in evidence under the provision of the Uniform Business Records As Evidence Act, N. J. S. 2A :82-34 et seq. Section 35 of the statute provides:

“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

We note parenthetically that the statute, which was in effect when the case was tried, was superseded on September 11, 1967 when the Rules of Evidence adopted under the Evidence Act of 1960 became effective. (See N. J. S. 2A :84A-40 and the footnote to Rule 63(13) of the Buies of Evidence.) However, there is no substantial difference between the underlying policy of Rule 63(13) concerning the admission of business records and section 35 of the statute which the rule replaced.

The basic theory of the statute was set forth in Mahoney v. Minsky, 39 N. J. 208 (1963) where the court stated:

“[R]ecords which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence. The last clause of the statute that the books should be accepted ‘if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,’ confers considerable discretion upon the trial judge. * * * Once that discretion has been exercised the holding will not be disturbed if supported by substantial even though conflicting evidence or inferences therefrom.” (at p. 218)

The precise question of whether a police report of a motor vehicle accident is admissible in evidence as a business record exception to the hearsay rule apparently has not been previously answered in any reported decision in our State. However, such reports have been held admissible in other jurisdictions. Stegall v. Wilson, 416 S. W. 2d 658 (Mo. Ct. App. 1967); Chemical Leaman Tank Lines, Inc. v. Stevens, 251 N. Y. S. 2d 240 (App. Div. 1964); Blakney v. Panhandle & Santa Fe Railway Co., 381 S. W. 2d 143 (Tex. Ct. Civ. App. 1964).

Moreover, it seems clear that such reports, with certain qualifications, see e. g., Fagan v. City of Newark, supra (78 N. J. Super., at p. 319), are admissible under the new Rules of Evidence. Gf. the comments in the Report of the Supreme Court Committee on Evidence (1963), op. cit., at pp. 180-181.

Defendants do not argue that the operation of a police department is not a “business” within the definition of N. J. S. 2A :82-34. Cf. Janiec v. State, 87 N. J. Super. 76 (App. Div. 1965); Fagan v. City of Newark, supra, at p. 308, and State v. Laster, 69 N. J. Super. 504 (App Div. 1961). Nor do they argue that a police report of a motor vehicle accident cannot be received as evidence if it complies with the standards required for admission under Section 35. They contend, however, that the report was inadmissible in this case because (1) the accident occurred on private property and therefore the police investigation and preparation of the accident report were not made in the regular course of business of the police department; (2) the diagram included in the report was based on an opinion which the officer was not competent to give; (3) the diagram was not trustworthy because it contradicted other evidence adduced at the trial, and (4) there was insufficient proof of the identification, method and time of preparation of the report to satisfy the statutory standards for its admission and the trial court failed to refer to the same when it ruled the report was admissible.

Defendants’ argument that the report was inadmissible because the accident occurred on private property is without merit. While privately owned, the parking lot was clearly a gwasi-public place and subject to applicable provisions of the Motor Vehicle Act. Cf. State v. Sisti, 62 N. J. Super. 84 (App. Div. 1960); State v. Gillespie, 100 N. J. Super. 71 (App. Div. 1968). Under N. J. S. A. 39 :4 — 9, a police officer, who in the regular course of duty investigates a motor vehicle accident required to be reported under the provisions of N. J. S. A. 39 :4-1 et seq., must make a written report of the accident for the use of the Division of Motor Vehicles. Eorms of accident reports calling for detailed information are supplied to police departments by the Division. Significantly, N. J. S. A. 39:4-9 does not restrict the necessity of preparing and filing such reports to accidents which occur upon the public highways and no sound reason exists to conclude that they are unnecessary when the accident occurs in a parking lot used by the public. Moreover, the chief of police testified that it is standard police procedure to investigate and prepare reports of accidents which occur on both public and private property. It is clear that the police investigation and the preparation of the accident report in this case were made in the regular course of business of the police department.

Before permitting the report to be received in evidence the trial court properly excised therefrom a statement expressing the officer’s opinion of the manner of operation of the vehicles by both drivers prior to the collision, and as to their negligence, on the ground that this was a conclusion which was not the duty of the officer to make. However, defendants claim that the diagram contained in the report should not have been admitted because it was based on the opinion of the officer as to the position of the cars either before or after the collision occurred. We do not agree. The officer arrived at the scene about three minutes after the accident happened and before the cars were moved. He unquestionably observed the skidmarks behind defendants’ car, otherwise he would not have thereafter arranged for the photographer to meet him at the parking lot to photograph them. The skidmarks shown, on the diagram were not “opinion” evidence but were based on the officer’s personal observations. The diagram was not drawn to scale and no measurements were indicated theron except the length of the skidmarks, a fact which the officer apparently deemed sufficiently important to record. As to the position of the cars shown on the diagram it is obvious that they were not placed there by the officer and would not be likely to be understood by the jury to purport to show the exact position of the cars either before or after the collision — but merely to indicate the direction in which they had been proceeding. The parties do not deny that they were driving in the directions so indicated. In our view this was not inadmissible “opinion” evidence but a factual representation which the officer was competent to make based on his observations at the scene.

We ascribe no merit to defendants’ argument that the diagram was not trustworthy because it did not coincide with other evidence produced at the trial. Conflicting testimony is not unusual at a trial — in fact, it is rare indeed when there is no contradictory testimony. That the diagram varied from the testimony of witnesses is not a bar to its admission in evidence. The ultimate decision as to its trustworthiness or credibility is a matter for determination by the jury. Mahoney v. Minsky, supra, at pp. 218-19.

Under the provisions of section 35 of the statute evidence of the identity and the method and time of preparation of the record must satisfy the trial court that its admission is justified. Here the trial court made an implicit finding that the statutory standard had been complied with. We are satisfied that there was substantial evidence in the record to support that finding. If the statutory requirements were not punctiliously observed we conclude there was no prejudice calling for a reversal.

We thus conclude that there was no mistaken exercise of discretion on the part of the trial court in permitting the police report to be received in evidence.

Ill

Finally, we find no basis for defendants’ claim that the verdict was contrary to the weight of the evidence. There was sufficient evidence to support the jury’s implied findings that Mrs. Van Dornick was guilty of negligence which proximately caused the accident and that plaintiff was not guilty of contributory negligence. The trial court, in denying defendants’ motion for a new trial, necessarily concluded that the verdict was not the result of mistake, partiality, prejudice or passion. R. R. 1:5-3(a). The scope of our appellate review is limited. We cannot disturb the order of the trial court unless it clearly and unequivocally appears that there was a manifest denial of justice under the law. Kulbacki v. Sobchinsky, 38 N. J. 435, 452 (1962). In the light of the evidence presented in this case we can make no such finding.

Affirmed.

       See Report of Supreme Court Committee on Evidence (1963), Comment on Rule 63(13), p. 177. For a partial history of the development of modern business records evidence legislation with particular reference to reports of accidents, see Fagan v. City of Newark, 78 N. J. Super. 294, 309-313 (App. Div. 1963).


source: Caselaw Access Project

author: Conford, S. J. A. D. Labrecque, J. A. D. Collester, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELIZABETH ALLEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1968
    Decided April 18, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Samuel C. Inglese (assigned counsel), argued the cause for appellant.

      Mr. William D. Danberry, Assistant Prosecutor, argued the cause for respondent (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendant appeals from a conviction of the crime of obtaining property under false pretenses. The indictment in substance presented that defendant, intending to cheat and defraud Sears Roebuck & Company (“Sears” hereinafter), falsely represented herself to Sears to be “one Jane Blackwell, the wife of one Joseph Blackwell,” and that by means of that false pretense she obtained from Sears a certain portable television set with the said fraudulent intent.

The statute here allegedly violated was N. J. S. 2A :111-1. For present purposes it should be emphasized that it requires that the false statements shall have been made with intent to cheat or defraud the person from whom the property, etc., is obtained and also that the false statement shall have been the “means” by which the property is obtained, i. e., that the defrauded person shall have relied upon the false pretenses in parting with the property. For the essentiality of the element of reliance see State v. Kaufman, 31 N. J. Super. 225, 229 (App Div. 1954), modified on other grounds, 18 N. J. 75 (1955); State v. Lamoreaux, 13 N. J. Super. 99, 103 (App. Div. 1951); State v. Hubschman, 133 N. J. L. 520, 522, 523 (Sup. Ct. 1946); State v. Thatcher, 35 N. J. L. 445 (Sup. Ct. 1872). The jury must be shown “that the unlawful purpose would not have been effected without the influence of the false pretense,” although this if shown will be sufficient notwithstanding the existence of other influences cooperating to induce the injured party to part with his property. Id., at pp. 448-449.

Defendant contends there was error in denying the motion for acquittal at the end of the State’s case for failure of proof of essential elements of the crime charged. On review of the denial of such a motion the sufficiency of the State’s case cannot be aided by what is adduced on defendant’s case, State v. Fiorello, 36 N. J. 80, 86-87 (1961), although the State is entitled on such a motion to the benefit of all of its favorable testimony and the favorable inferences which a jury might reasonably draw therefrom. Id., at p. 87.

The State’s proof was as follows. On May 22, 1964 defendant Elizabeth Allen accompanied by a man, visited an outlet of Sears in Perth Amboy. She purchased a portable television set ($139.95), using a Sears credit card (charge plate) imprinted with the name Joseph Blackwell. Defendant signed that name on the sales slip. She was not asked by the salesman, one Hamerling, to identify herself, and she did not volunteer the information, but she gave Blackwell’s address on request. She was allowed to take the set after the salesman phoned the credit department and obtained approval. The store ordinarily relied upon possession of the card, an authorized signature and verification from the- credit department of the address given by the card holder. Hamerling also testified the store “normally issued two cards for husband and wife’s use. It can be issued in one name with two authorized signatures.”

Defendant returned to the Perth Amboy store the next day, May 23, 1964, to exchange the television set purchased the day before for a different (and more expensive, $149.65) model. She said the first set’s reception was unsatisfactory. She was accompanied this time by two men.

George R. Smith testified for the State that it was he, a salesman and department manager of Sears, who processed and handled the exchange transaction. He said:

“Well, first of all, she identified herself to me as Mrs. Blackwell and she gave me the receipt which she had validated the day before and after verifying the fact that the set was the proper number and the price was correct, I proceeded to make out a refund check. In other words, I refunded the money on the original sale and then she picked an alternate set for which I rewrote another sales slip.”

However, it is clear that the transaction did not actually involve any cash refund. The defendant simply got a second set in place of the first, and there was a net increase of $9.70 in the debit on the Joseph Blackwell charge account.

Smith testified that defendant signed for the exchange; she wrote “Joseph Blackwell” on the new sales slip after presenting the Blackwell credit card which was used to make a charge plate imprint on the new sales slip. Smith echoed Hamerling’s testimony to the effect that it was permissible and common for the wife of a charge account holder to sign for a credit transaction — either by signing her husband’s name (the named charge account holder) or her own name. The signature as imprinted on the plate is preferred.

Charles Moser, the Sears credit fraud investigation manager, was the State’s last witness. He testified that early in 1964 a charge account application bearing the name “Joseph Blackwell” was received, and two credit cards were promptly issued in that name (each card with the same name — one card to be used by the applicant’s wife) and sent to the applicant’s address. “Store policy” is that only the named individual and his wife may use the card.

A credit investigation of Joseph Blackwell, 151 Monroe Avenue, Rahway, was commenced by Moser in June 1964, as nothing had ever been paid on the account in question although several articles had apparently been purchased thereon. In the course of his investigation Moser visited the Rahway address in August 1964 and was greeted at the door by defendant, who, he claimed, first identified herself as “Mrs. Smith or Mrs. Jones, * * * whichever one you like.” She then said:

“I’m the sister of Jane Blackwell and she told me you were coming. * * * She told me to look at the sales slips and if they were her signature to tell you that she would pay the bills because she is in the hospital having a baby.”

Defendant, said Moser, confirmed that the signatures on the sales slips were her “sister’s.” Moser went to the hospital to see if there was a Mrs. Blackwell in the maternity ward but did not testify as to what he found. He later said he never found a Mrs. Joseph Blackwell anywhere. He also testified he went to a place that he “thought to be the place of business of one Joseph Blackwell.” He was not allowed to say what he learned there because hearsay. He did testify he never saw any Joseph Blackwell. He did not indicate whether the Rahway address was a single or two-family dwelling. Aside from the foregoing, the revealed extent of his investigation was only as to an inquiry of the telephone company and the “credit bureau or the real estate bureau or something.” Moreover, his investigation began in June 1964. There was nothing indicated concerning any investigation, or the results thereof, as to the Blackwells’ location as of May, when the television set was purchased, or earlier, when the account was opened.

The foregoing are the proofs on the basis of which the correctness of the trial court’s denial of the motion to acquit at the end of the State’s ease must be adjudged. As we have concluded that such proofs were deficient to establish a prima facie case of guilt of the specific crime charged, within the formula of State v. Fiorello, supra, the defendant’s testimony is irrelevant to our conclusion, and we summarize it for informative purposes only.

Defendant testified in her own behalf that she had signed the two sales slips, but that she had done so for her stepbrother, Joseph Blackwell, who, present at the store with her on both occasions, had temporarily left the sales area when the time for signing arrived — on May 22, 1964 to visit the auto parts department, and on May 23, 1964 to go to the toilet. The purchase and exchange were made, she said, by Blackwell, and she signed the name “Joseph Blackwell” for him in his temporary absence, at the behest of the impatient salesmen. Defendant insisted she told the salesmen that the purchaser, Joseph Blackwell, was her brother.

Defendant testified that at the time of the 1964 purchase she and her husband lived in a two-family house at 151 Monroe Street in Rahway; Blackwell, his wife and child, lived on one floor, and she and her husband lived on the other. She and her husband now live on Grant Avenue in Jersey City and Blackwell and his family have removed to Alabama. Defendant does not know their address and has not heard from them since August 1964.

Defendant admitted Moser called at the house and said he asked for the Blackwells and that she told him they were not home, identifying herself as Elizabeth Allen. When he asked her about the accounts she said she could not help him and could not identify the signatures, and told him he would have to return when they were there. He did not ask where either of them was that day nor did she tell him.

I

In considering whether a prima facie case was presented at the end of the State’s evidence we must be mindful that the statute in question is not designed for or to be used as a means of collecting commercial accounts, see State v. Lamoreaux, supra (13 N. J. Super., at p. 102). Second, we must not permit ourselves to be tolerant of obvious deficiencies in a criminal prosecution because of any visceral reaction that defendant’s conduct was reprehensible in some vague respect not identifiable by fair inferences from the proofs with the precise requirements laid down by the law for conviction of the specific crime laid in the indictment. See State v. Campisi, 23 N. J. 513, 518-520 (1957); State v. Croland, 54 N. J. Super. 594, 602-603 (App. Div. 1959), affirmed 31 N. J. 380 (1960); State v. Dancyger, 51 N. J. Super. 150, 160 (App. Div. 1958), reversed, other ground, 29 N. J. 76 (1959). Specifically, Mrs. Allen was not charged with or tried because of any fraudulent pretense in opening or maintaining the credit account or participating therein, or using the credit card per se, or concealing the whereabouts of the Blackwells in August 1964 or previously. The false pretense charged was solely her statement, the second time she came to the store, that she was “Jane Blackwell” the “wife of Joseph Blackwell,” i. e., Mrs. Joseph Blackwell; and that by means thereof she obtained a television set from the company with fraudulent intent.

We address ourselves first to the adequacy of the proof to establish the necessary element of reliance; see the authorities cited above. The State had to show that defendant’s alleged statement, when she went to exchange the first television set for the second — that she was Mrs. Joseph Blackwell — was the or a material factor upon which Sears relied in releasing the set to her. State v. Thatcher, supra. The witness who effected the exchange on behalf of Sears did not say or imply in any way that he would' not have allowed the second set out of the store unless the defendant first identified herself as Mrs. Blackwell. He did not ask her who she was. While there was testimony that it was company policy that only the named holder or his spouse could use the card, it was not fairly inferable that the store’s fixed practice is never to let an item go out on charge unless the holder of the card states specifically that he or she is the person named thereon or the spouse of that person. Thus no reasonable legitimate inference is possible from the State’s evidence that Mr. Smith would have withheld the new set (worth only about $10 more than the set Mrs. Allen already had obtained free of any charged false pretense and returned in the exchange) unless defendant first expressly affirmed that she was Mrs. Blackwell. The testimony was not that the salesman asked her who she was; merely that she identified herself in that manner on her own initiative at the outset of the transaction; and it is plain that the salesman’s sole reliance in effecting the exchange was defendant’s production of the set, the credit card and the sales slip of the prior day’s transaction. Having validated the latter, Mr. Smith put the exchange through.

It is highly significant in this regard that the salesman who effected the initial sale received no identification by defendant of herself as “Jane Blackwell, wife of Joseph Blackwell,” or as Mrs. Blackwell, nor did he ask for any. He relied solely on her possession of the card, her furnishing the Monroe Street address, her signing of the Blackwell name, and his inquiry of the credit department.

Upon inquiry on the point by the court at oral argument, the State with commendable candor indicated that it could point to no evidence in the case to justify the inference that the salesman would not have let the set go the second day absent defendant’s volunteered representation of herself as Mrs. Blackwell.

For all the reasons stated, we are constrained to hold that it could not, with reason, be found beyond a reasonable doubt that there was any reliance by the company in the “but for” sense in parting with any merchandise on the gratuitous introduction of herself the second day by Mrs. Allen as Mrs. Blackwell. This called for granting the motion of acquittal at the end of the State’s case.

II

In this portion of the opinion the writer speaks only for himself.

I am convinced that reversal should rest on the additional ground that at the end of the State’s proofs there was no reasonable basis for a fair inference of fraudulent intent by defendant in making the false pretense of her identity. The set was being taken on a credit charge account of Joseph Blackwell. There was no proof by the State that, as of the time of purchase of the television set, or previously, this was not a regular and subsisting account of one Joseph Blackwell, nor, a fortiori, that defendant did not so believe at the time. Defendant was entitled to the presumption of innocence all during the trial as to all necessary elements of the offense, including fraudulent intent. So far as anything to the contrary appeared in the State’s case, she could well have been lent the credit card by Blackwell (whether or not consonantly with the store’s “policy”) to buy the set, with no expectation or intention on her part that the charge-card holder would not pay the account when it came due. That hypothesis of innocence of fraudulent intent cannot be taken to be refuted by her variant defensive testimony that it was actually Blackwell who was buying the set as this is not legally available to buttress the State’s case on the initial motion for acquittal. In any case, if that testimony is true, it clearly refutes any guilt. If it is false, it still does not supply the missing indicia of intent that the company not be paid on the account.

ETor is the hypothesis of innocence as to intent fairly refutable by defendant’s conduct in August 1964, three months after the allegedly fraudulent transaction here in question. Her dissembling at that time may well have been merely the product of a then desire to help her brother avoid responsibility or perhaps because of her fear of involvement in' civil liability for the set, knowing then that it had not been paid for. Those circumstances are not at all inferential of an intent on her part on the day in May 1964 when she got the set that the company should not be paid for it on the charge account in due course; certainly not to such degree as would entitle a jury reasonably to so find beyond a reasonable doubt. Indeed, our cases appear to indicate, insofar as the sufficiency of circumstantial evidence to establish guilt of this crime is concerned, that the State’s evidence must generate inferences of the necessary elements of the crime “grounded in strong probability” in order to survive a motion for acquittal. State v. Trypuc, 53 N. J. Super. 6, 12 (App. Div. 1958); State v. Lamoreaux, 13 N. J. Super. 99, 103 (App. Div. 1951) (per Brennan, J. A. D.).

There should have been a directed acquittal on this ground, independently of that discussed previously herein.

Ill

We are not in accord with defendant’s pro se argument that she was prejudiced in respect of identification in court by the State’s witnesses because she and her husband were the only Negroes in court during the trial. She does not deny that she was the person with whom all three of the Sears’ employee-witnesses dealt as recounted in their testimony.

Judgment reversed.

Labrecque, J. A. D.

(concurring). I would reverse, but solely upon the ground that the proofs were inadequate to establish that defendant’s false representation was operative in inducing Sears to part with the television set on the day of the offense. I join in Judge Conford’s opinion on this point. Evidence is totally lacking from which the jury could have found that such representation was relied upon by Sears and induced it to permit defendant to take the set from the store. Smith, the saleman and department manager who handled the transaction, is silent on the subject. When defendant “purchased” the first television set the day before, she had been permitted to take it from the store without any questioning as to her identity, notwithstanding that she had signed the name “Joseph Blackwell,” a name which she obviously did not bear.

I would hold that Moser’s testimony as to defendant’s subsequent conduct was adequate to support a finding of fraudulent intent on her part.

Collester, J. A. D.

(dissenting). I am unable to agree with my brothers that there was no proof that Sears, Roebuck & Company relied upon defendant’s false representations when she acquired the television set and that there was no evidence that defendant intended to cheat and defraud the company.

The evidence showed that when a credit card was issued by the company for use by a husband and wife it would normally bear only one name, usually that of the husband. The wife could use the card by giving her address and signing either her own name or her husband’s name on the sales slip. Hamerling, Smith and Moser, who were employed by the company, all testified that no one could use the card except the cardholder or his wife.

The test to be applied in determining the sufficiency of the proof on a motion to acquit is whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. This test governs not only the trial judge’s consideration of the motion, but also appellate review of his ruling.

Here defendant falsely represented that she was the wife of Joseph Blackwell, the credit card holder, and signed his name to the sales slip. Since only the card holder or his wife could use the credit card to obtain merchandise the jury could properly find that the company relied upon the defendant’s false representation when it permitted her to take the television set.

I am also satisfied that the State presented sufficient evidence of the defendant’s fraudulent intent. The intent to cheat or defraud at the time property is obtained by means of false representations involves proof of the condition or state of mind of the accused. Such proof ordinarily can only be established by the words, acts and conduct of the accused. It is relevant to show the conduct and declarations of the accused subsequent to the commission of the crime when such conduct indicates a consciousness of guilt, or is inconsistent with innocence, or tends to establish the intent with which the act was committed. 1 Wharton’s Criminal Evidence (12th ed. 1955), § 201, pp. 404-405.

In the instant case there was evidence that when Charles Moser, a company investigator, went to defendant’s home to inquire about the nonpayment of the Blackwell account the defendant concealed the fact that she was the person who had used the credit card, had signed Blackwell’s name to the sales slip, and had obtained the television set. She informed Moser that she was Jane Blackwell’s sister and that her sister had told her a Sears’ representative would call at the house about the account. She said Jane Blackwell had asked her to look at the sales slips and if they bore her sister’s signature her sister would then pay the bill.When shown the slips by Moser she falsely identified the signature as her sister’s.

On the basis of such evidence the jury could properly conclude that defendant intended to cheat and defraud the company when she obtained the television set as a result of her false representations.

In my opinion the trial court did not err in denying the motion for acquittal and submitting the issues for determination by the jury.

I would affirm.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY SMITH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1967
    Decided April 19, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr, Harry A. Goldenberg argued the cause for appellant (Mr. H. Albert Hyett, on the brief).

      Mr. Solomon Forman, Assistant Prosecutor, argued the cause for respondent (Mr. Ernest H. Curtis, Assistant Prosecutor, on the brief; Mr. Robert N. McAllister, Jr., County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant appeals from his conviction by a jury finding him guilty of the crimes of atrocious assault and battery (N. J. S. 2A :90-1) and assault with a dangerous weapon (N. J. S. 2A:90-3).

The incident which brought about defendant’s arrest and subsequent conviction arose from an altercation between defendant and one Eddie Still. Cleveland Books, the victim, was the only witness called by the State who could describe what had transpired. Books testified that on the morning of December 19, 1965 he had breakfast in an Atlantic City restaurant with his father, brother and Eddie Still. While they were in the restaurant Still became involved in an argument with the defendant and slapped his face. Still and defendant then went outside and engaged in “body punching.” When they returned to the restaurant the argument continued until defendant finally left. When Rooks subsequently went outside of the restaurant he saw Still hiding behind a parked car and defendant standing nearby holding a rifle which was pointed towards the ground. He heard defendant ask Still why he had slapped him in the face. Rooks, who was behind defendant grabbed him and tried to take the rifle away. During the scuffle for possession the rifle was discharged and Rooks sustained a bullet wound in his shoulder. Rooks testified that he had had no prior trouble with defendant and had not been threatened by him.

Defendant does not contend that the verdict of the jury was contrary to the weight of the evidence. He urges two grounds for reversal, namely, (1) the court erred in refusing to charge the jury that his failure to testify did not create any presumption of guilt, and (2) the court committed plain error by indirectly referring in its charge to defendant’s failure to testify.

I

The request to charge submitted by defendant which the court refused to charge on the ground that it was improper was as follows:

“The defendant has a constitutional right not to testify if he so desires and the fact that he -has not taken the witness stand [and] has exercised his constitutional right to refuse to testify as a witness in this case does not create any presumption against him. That is, the failure of the defendant Stanley Smith to take the stand and testify on his own behalf creates no presumption of guilt against him and you are not to draw any inference whatsoever that the accused is guilty merely by reason of the fact that he has failed to testify as a witness in his own behalf.”

Defendant alleges that the court’s refusal to so instruct the jury constituted prejudicial error requiring a reversal of the convictions. He contends that since the United States Supreme Court held in Griffin v. State of California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), that the guaranty against self-incrimination of the Fifth Amendment, made applicable to state prosecutions under the Fourteenth Amendment, forbids comment by the prosecution or instructions by the court that a defendant’s failure to testify is evidence of guilt, he was entitled to an affirmative charge that the jury should indulge in no adverse presumption or inference from his failure to testify in his own behalf. He alleges that unless the jury was so instructed it would, of necessity, infer guilt from his failure to take the stand.

The precise question of whether a defendant in a state prosecution is entitled to have the jury so instructed when he requests it has not previously been dealt with by the .United States Supreme Court or determined by any of the appellate courts of our State.

In Griffin the court expressly reserved decision on the question of whether the accused could require that the jury be instructed that his silence must be disregarded. 380 U. S. at p. 616, fn. 6, 85 S. Ct. 1229. Since that decision courts in Ohio and Nevada have held that Griffin does not require that comparable cautionary instructions be given when requested. See State v. Senzarino, Ohio Com. Pl., 224 N. E. 2d 389, 390 Ohio Ap. 2d 383 (C. P. 1967) and McNeeley v. State, 81 Nev. 663, 409 P. 2d 135 (Sup. Ct. 1965). Iowa has indicated a contrary view. State v. Osborne, 258 Iowa 390, 139 N. W. 2d 177, 179 (Sup. Ct. 1965).

In our State the Supreme Court has held in State v. Aviles, 49 N. J. 192 (1967), that when defendant did not request such a charge it was not plain error for the trial court not to give it, sua sponte. However, dictum in State v. DeStasio, 49 N. J. 247, 252 (1967), inferentially suggests that when a request for a cautionary instruction is made it should be given to the jury.

In Bruno v. United States, 308 U. S. 287, 60 S. Ct. 198, 84 L. Ed. 257 (1939), the court held that a defendant in a federal prosecution had an indefeasible right to have the jury instructed that his failure to testify did not create any presumption against him. The court’s decision was grounded upon a federal statute enacted in 1878, 28 U. S. C. A. § 632 (now 18 U. S. C. A. § 3481) which freed an accused in a federal court from his common law disability as a witness and also provided that the failure of an accused to exercise his right to testify “shall not create any presumption against him.”

While the Bruno decision was based on the statutory mandate that no adverse presumption could be drawn from a defendant’s failure to testify, it seems clear that the statute created no new right on behalf of an accused (other than his right to testify) and that it was merely declarative of an accused’s privilege against self-incrimination guaranteed under the Eifth Amendment. It seems to us that the rationale of the Bruno decision is equally pertinent to state criminal prosecutions now that the Eifth Amendment guaranty against self-incrimination has been held applicable thereto.

Moreover, the underlying principle of Griffin v. California, supra, as we see it, is that no adverse inferences should be drawn by a jury when a defendant exercises his constitutional right not to testify. The value of the constitutional privilege to remain silent would be largely destroyed if a defendant could be penalized for relying upon it. Accordingly, the logical extension of this principle is that when a defendant requests that the jury be instructed that his failure to testify creates no presumption of guilt he is entitled to that instruction.

While it may be argued that a defendant who fails to take the stand benefits by not having the attention of the jury directed to that fact by such instruction, it may with equal logic be argued that the jury is not likely to overlook defendant’s failure to testify even if the court is silent on the subject, and may very well draw adverse inferences if not instructed to the contrary. We therefore think that, however difficult it may be for a defendant to exercise enlightened self-interest in the matter, he should be allowed to make his own choice as to whether or not the instruction should be given. Bruno v. United States, supra, 308 U. S. at p. 294, 60 S. Ct. 198.

We thus hold that the trial court’s refusal to charge the jury substantially to the effect of defendant’s request was prejudicial error requiring reversal.

II

Because this case must be retried we deem it appropriate to consider the other point claimed by defendant to be reversible error as it might recur on the retrial. Defendant contends that his Eifth Amendment privilege against self-incrimination was violated when the court charged the jury as follows:

“Now you have noticed the different witnesses who have appeared. You have noted and observed their attitude that they took on the witness stand and you noted the readiness with which they responded to the questions put to them. You will ask yourself how they impressed you and what particular motives did they have to testify as they did. You noted the attitude of all these people.
You may consider that there is no person in the entire world more interested in the outcome of this case than the defendant and you may take that into consideration in arriving at your verdict.” (Emphasis ours)

Defendant claims that the court’s reference to the testimony given by the State’s witnesses followed by the reference to defendant’s interest in the outcome of the case was tantamount to an adverse comment on his failure to testify in his own defense. While no objection was made by defendant’s trial attorney to that part-of the charge, defendant argues that it constituted plain error because it affected his substantial rights. R. R. 1:5-1 (a).

As we have previously indicated, it is now well settled that a comment by the trial court or a prosecutor concerning a defendant’s failure to testify violates his Fifth Amendment privilege against self-incrimination. Griffin v. California, supra; State v. Lanzo, 44 N. J. 560 (1965). Most of the cases which have reversed convictions because of such adverse comments have involved direct and express instructions that defendant’s failure to testify raises an inference either of guilt or of inability to controvert incriminating evidence offered by the State. See State v. Aviles, supra, 45 N. J. 152 (1965); State v. Davis, 45 N. J. 195, 197 (1965); State v. Wade, 89 N. J. Super. 139, 142 (App. Div. 1965). However, we have also held that such comment constitutes reversible error when it indirectly alludes to a defendant’s election not to testify. State v. McElroy, 96 N. J. Super. 582 (App. Div. 1967). See also State v. Sinclair, 49 N. J. 525, 548-49 (1967); State v. Persiano, 91 N. J. Super. 299, 301-02 (App. Div. 1966); Desmond v. United States, 345 F. 2d 225, 226-227 (1 Cir. 1965); State v. Acosta, 101 Ariz. 127, 416 P. 2d 560 (Sup. Ct. 1966); Martinez v. People, 425 P. 2d 299, 302 (Colo. Sup. Ct. 1967).

When a defendant takes the stand in a criminal prosecution the credibility of his testimony becomes an issue in the ease and the court may properly charge the jury that in determining that issue it can consider defendant’s interest in the outcome of the trial.

However, here defendant did not testify or call any witnesses in his behalf. The only witnesses who testified were produced by the State. The court’s reference to the readiness of the State’s witnesses to testify was followed immediately by the instruction that the jury could consider the fact that there was no person more interested in the outcome of the case than defendant. In our opinion there was a strong likelihood that such instruction directed the attention of the jury, in a manner adverse to defendant, to his failure to testify in his own behalf. This clearly violated defendant’s Fifth Amendment rights, within the cases cited above. Cf. Davis v. United States, 357 F. 2d 438 (5 Cir. 1966).

The State argues that if the court’s comment was improper it was harmless error. In Chapman v. State of California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the court held that (1) federal law rather than state law is applicable in determining whether the right of an accused to remain silent under his Eifth Amendment privilege constitutes harmless error, and (2) before an error involving the denial of a federal constitutional right can be held harmless in a state criminal ease the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the accused’s conviction.

Applying the foregoing standard to the facts in this ease we have no doubt that the error cannot be deemed harmless. Erom our review of the record we are led to believe that defendant’s guilt of the crimes charged was a close factual question. The court’s comment might well have been the determinative factor which impelled the jury to find the defendant guilty. We cannot say that we are satisfied beyond a reasonable doubt that it did not contribute to his conviction. Chapman v. California, supra, 386 U. S., at p. 24, 87 S. Ct. 824. Moreover, we further regard the error as amounting to “plain error” under R. R. 1:5-1 (a), because, while not brought to the attention of the trial court, it affected the substantial rights of the defendant.

The judgments of conviction are reversed and the case is remanded for a new trial.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALFREDO PEREZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1968
    Decided April 23, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Miss Cynthia M. Jacob, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney; Mr. Richard Newman, Deputy Public Defender, of counsel).

      Mr. Solomon Forman, Assistant Prosecutor, argued the cause for respondent (Mr. Robert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, of counsel and on the brief).
   Pee Curiam.

This is an appeal by defendant Alfredo Perez from a conviction of first degree murder. He was sentenced to life imprisonment upon the jury’s recommendation. Defendant contends (1) the verdict was against the weight of the evidence, (2) his motion for acquittal at the close of the State’s evidence should have been granted, (3) he was denied the effective assistance of counsel, and (4) the trial court committed plain error in its charge to the jury.

We have studied the record and find nothing of substance in any of those arguments.

There is ample evidence from which a jury could determine that defendant, while a patron at a tavern, had fired three shots from a .32 caliber revolver, one of which struck the victim, Jose Delgado, in the back causing his death, and that the essential elements of premeditation, deliberation and willfulness were present. Note, State v. Coleman, 46 N. J. 16, 44-45 (1965), certiorari denied 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966); State v. Anderson, 35 N. J. 472, 499 (1961).

The trial court properly denied defendant’s motion, at the end of the State’s case, to dismiss the charge of murder in the first degree for alleged lack of evidence of premeditation and deliberation. As stated in State v. Peterson, 10 N. J. 155, 163 (1952), “The weapon used, time consumed and circumstances of the killing may support an inference of deliberation and premeditation.” See also State v. Beard, 16 N. J. 50, 61 (1954); State v. O’Connor, 42 N. J. 502, 509-510 (1964), certiorari denied 379 U. S. 916, 85 S. Ct. 268, 13 L. Ed. 2d 187 (1964).

It is argued that defendant, a Puerto Eican, was denied the effective assistance of counsel because the trial judge refused to appoint, in addition to the interpreter provided to translate the testimony of Spanish-speaking witnesses, a.second translator to facilitate communications between defendant and his trial counsel. We note that the trial judge observed that the only time the court-appointed interpreter would not be with the defendant “is if we had to use her for another witness who may be testifying * * * then of course she would have to not only interpret for the witness, but will have to interpret for the defendant.” In Cervantes v. Cox, 350 F. 2d 855 (10 Cir. 1965), the court stated, “There is no constitutional right, as such, requiring the assistance of a court-appointed interpreter to supplement the right to counsel.” A language barrier between counsel and client “is merely one circumstance probing the questions of whether the accused has been adequately represented by counsel.” Ibid. Accord, Orosco v. Cox, 359 F. 2d 764, 765 (10 Cir. 1966). Here defendant fails to point to a single instance where a desired communication with his attorney was rendered ineffectual as the result of the court’s ruling, or to any circumstance indicating that his understanding of the proceedings was impaired to his detriment. There is nothing before us to indicate that defendant’s trial was not fair and impartial or that he was in any way prejudiced.

When considered in its entirety, the trial court’s charge to the jury was reasonably clear and accurate. Any confusion with respect to the challenged portion of the instructions was eliminated when the trial court, after sidebar conference, supplemented its charge by defining “premeditated,” “deliberate” and “willful” killing in the language of State v. DiPaolo, 34 N. J. 279, 294-295 (1961), certiorari denied 368 U. S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). We perceive no error, much less plain error.

Affirmed.


text:
    FRANK BRISCOE COMPANY, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. SUBURBAN TRUST COMPANY, A BANKING CORPORATION, DEFENDANT-RESPONDENT, AND E. FRED SULZER AND ELEANOR SULZER, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1968
    Decided April 24, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Sam Weiss argued the cause for appellant (Messrs. Levy, McCloskey & Schlesinger, attorneys).

      Mr. Sanford Silverman argued the cause for respondent.
   The opinion of the court was delivered

Pee Curiam.

Plaintiff Prank Briscoe Company, Inc. (Briscoe) sued Suburban Trust Company (bank) and E. Pred Sulzer and Eleanor Sulzer, the principals of E. Pred Sulzer & So. (Sulzer), for damages, claiming that the bank had wrongfully and fraudulently set off an obligation of Sulzer against certain funds in that company’s general deposit account, allegedly held in trust for Briscoe. The action was voluntarily dismissed as to E. Pred Sulzer, who died before trial, and Mrs. Sulzer, who was in a mental institution. The Law Division judge, sitting without a jury, found no evidence of fraud or collusion by the bank, or of any alleged trust relationship between Briscoe and Sulzer known to the bank and binding upon it. He thereupon entered judgment in favor of the bank. This appeal followed.

Plaintiff concedes that a bank may normally set off against a general deposit a debt due from the depositor, even after the filing of a bankruptcy petition. American Lumberman’s Mut. Cas. Co. v. Bradley Constr. Co., 127 N. J. Eq. 500, 504 (Ch. 1940), affirmed 129 N. J. Eq. 278 (E. &. A. 1941).

The record clearly supports the trial judge’s determination that there was no fraud or collusion on the part of the bank.

Assuming that the $136,402.28 check which plaintiff gave Sulzer represented a trust fund in the latter’s hands, plaintiff failed to prove that the bank was aware of any such arrangement. There is no evidence whatever that the bank knew or should have known that the check was not the sole property of Sulzer or that it was part of a trust fund. The trial judge’s finding of fact that the bank was without notice of the trust arrangement, if indeed there was one, is fully supported by the uncontradicted testimony of its president. Accordingly, that finding will not be disturbed on appeal. See State v. Johnson, 42 N. J. 146, 161-2 (1964).

Plaintiff contends that the bank, as holder of collateral to secure the obligation of the Sulzer company, was required to seek satisfaction of its loan from the security rather than by exercising any right of set-off. While the authorities appear to be divided on this question, it is clear that parties to a security agreement may establish the right of set-off by contract. See 10 Am. Jur. 2d, Banks, § 672, p. 645 (1963); Annotation, 96 A. L. R. 1240 (1935). The security agreement between Sulzer and the bank expressly provided that

“Upon any failure in business or making of an insolvent assignment by the undersigned then and in either event all liabilities of the undersigned to said company [bank] shall at the option of said company, come immediately due and payable notwithstanding any credit or time allowed to the undersigned by any instrument evidencing any of the said liabilities.
Upon default, as aforesaid, sajd company may also apply toward the payment of said liabilities all balances of any deposit account of the undersigned with said company then existing.”

Thus, by the very terms of this agreement, the bank had the right to assert a set-off.

The judgment is affirmed.


author: Labrecque, J. A. D.

text:
    ALPHONSE NESTA, PLAINTIFF-APPELLANT, v. ARNOLD MEYER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided April 22, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. John F. Russo argued the cause for appellant.

      Mr. Vincent D. Enright, Jr. argued the cause for respondent (Messrs. Harth & Enright, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiff Alphonse Nesta appeals from a judgment for defendant following an adverse jury verdict, and from denial of his motion for a new trial.

Plaintiff sued for personal injuries arising out of an automobile collision which occurred at the intersection of Route 35 and First Street, Ortley Beach, Ocean County. At the point of the accident Route 35 is a divided highway consisting of two northbound and two southbound lanes (the northbound section is one block to the east of the southbound section). Plaintiff had been following defendant as they were proceeding in a southerly direction in the right-hand lane. He pulled out to pass defendant when he was about 200 feet (one block) from First Street. While plaintiff was in the passing lane defendant attempted a left-hand turn into First Street from the right-hand lane. In doing so he collided with plaintiff with resultant personal injuries to the latter.

The speed limit was 35 miles per hour and there was a sign 75 feet from the point of impact directing traffic to keep right execpt while passing. Plaintiff testified that defendant had been proceeding slowly; he pulled out intending to pass defendant but then changed his mind; he himself was traveling only about 25 miles an hour and the two cars had been moving alongside one another for about 50 feet before the crash. Defendant’s version was that he had observed plaintiff approaching from the rear when he was about a block from the intersection. In preparing to make a left-hand turn he had put on his left turn signal “a block back at least” and when about 150 feet from the intersection had applied his brakes. He had reduced his speed to at about five miles an hour when he turned left from the right lane. Plaintiff denied seeing the left turn signal at any time.

• The- accident was investigated by Officer Chafatelli of the local police who related that he found 15 feet of skid marks made by plaintiff’s automobile prior to the point of impact and 35 to 45 feet of skid marks (which were somewhat lighter in color) beyond it. He was unable to state the length of the break between the two sets of skid marks but testified that they were all in the left (passing) lane. Defendant testified that about half an hour after the accident he and another person returned to the scene with a 100-foot tape and found that the skid marks measured 145 feet in length. There was no attempt to reconcile the difference between the two measurements although the break described by Chafatelli may have accounted for part of it.

The jury returned a verdict of no cause for action by a 10 to 2 vote. The trial judge denied plaintifE’s motion for a new trial and the present appeal followed.

Plaintiff’s first point is two-pronged: that it was error to exclude “expert” testimony by Chafatelli as to plaintiff’s speed, based upon the skid marks made by plaintiff’s car, and error to allow testimony as to the presence of such skid marks in the absence of expert testimony as to their significance. We find neither contention to be meritorious.

In determining whether the conduct of the respective drivers comported with reasonable care under the circumstances presented at the time of the accident in question, it was proper to submit to the jury evidence as to the skid marks left by their vehicles. These were relevant not only as to speed but as to the location and direction of the vehicles and the reactions of the drivers to the situation which presented itself. Cf. Tischler v. Steinholtz, 99 N. J. L. 149 (E. & A. 1923); DiNizio v. Burzynski, 81 N. J. Super. 267, 272 (App. Div. 1963). Where speed is in issue, the distance required to bring a vehicle to a stop, the skid marks left in connection therewith and the final position of the car, are significant elements. Cf. State v. Kellow, 136 N. J. L. 1, 5 (Sup. Ct. 1947), affirmed 136 N. J. L. 633 (E. & A. 1948). Expert testimony is not a prerequisite to the admission of such testimony.

Plaintiff argues that Officer Chafatelli was qualified as an expert to determine speed based upon skid marks and that it was error to decline to permit him to testify as to plaintiff’s speed from the skid marks. We disagree. In general, expert testimony is admissible where the witness offered has peculiar knowledge or experience not common to the world which renders his opinion founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Rempfer v. Deerfield Packing Corp., 4 N. J. 135, 141-42 (1950). In DiNizio v. Burzynski, supra, 81 N. J. Super. pp. 272-274, cited by plain tiff, we held that, where the speed of the vehicle was in issue, opinion evidence from a qualified expert, in reply to a hypothetical question which included the facts in the case concerning the course, length and nature of skid marks left by the vehicle, was properly admitted. In that case the expert witness was a traffic engineer, Director of the Department of Safety and Traffic of the New Jersey Automobile Club and had a long history of training and teaching in the fields of driver education, traffic safety and accident prevention.

Here the police officer was not an engineer and had had no special training in assessing the speed of vehicles from skid marks or other indicia at the scene. It is a matter of common knowledge that skid marks may be affected not only by the speed at which a vehicle is being driven, but by the condition of the surface of the highway, the type of tread and degree of wear of the tires, the weight of the vehicle, the condition of the brakes and the manner in which they are applied. Within the discretion allocated to trial courts in matters of this type, we find no mistaken exercise of discretion in the exclusion of the proffered testimony.

Further, assuming that the testimony was improperly excluded, we are satisfied that plaintiff suffered no prejudice. R. R. 1:5-3 (b); cf. DiNizio v. Burzynski, supra, at pp. 274-275. While the offer of proof did not go so far as to state what the officer’s estimate of plaintiffs speed would have been had he been permitted to testify, it is entirely reasonable to conclude that had he been permitted to do so his opinion would not have been helpful to plaintiff. He testified in response to a question as to the knowledge he had acquired when attending the Police Academy that “for instance, if there was [sic] 50-60 feet of skidmarks, the car was [going] well over 85 miles an hour.”

Plaintiff next contends that the trial judge erred “in not illustrating and defining to the jury the effect of speed with regard to proximate cause and in refusing to charge plaintiff’s request [s] concerning the same.”

Since there was no objection to the charge, R. R. 4:52-l, such a contention on plaintiff’s part would ordinarily be cognizable only as plain error. R. R. l:5-3(c). Plaintiff urges, however, that since his contention under this point was raised in timely requests to charge, he was not required to again object to the failure to charge them. We disagree. It was held to the contrary in In re Parking Authority of City of Hackensack, 30 N. J. Super. 534, 543 (App. Div. 1954). Further, at the conclusion of the charge counsel for plaintiff was addressed directly by the court as to whether he was objecting to the charge as given and stated in reply, “I have no objections.” Later, after the jury had been recharged in response to a juror’s question bearing on whether speed of itself would constitute contributory negligence, the court again inquired of counsel, “do you have anything to add?” to which counsel for plaintiff replied, “I think your Honor covered it.” See Keiffer v. Food Products Trucking Co., 73 N. J. Super. 285, 305 (App. Div. 1962), certification denied 37 N. J. 524 (1962). Thus his two affirmative representations to the court that he was satisfied with the charge as given amounted to much more than mere omission to object. See Lippman v. Ostrum, 22 N. J. 14, 26 (1956).

The fact that a party has submitted a timely request to charge, does not ordinarily dispense with the obligation imposed by R. R. 4:52-1 to object to the trial judge’s omission to so charge. When counsel conceives that a portion' of the charge as given is inadequate or inconclusive— especially upon specific inquiry by the judge upon a subject close to or identical with matters involved in the request to charge — it becomes his duty to alert the court in clear language to the claimed inadequacy or error, stating his grounds therefore. Here counsel, on inquiry, did exactly the opposite. We are satisfied and hold that the point raised may be considered only as plain error and we proceed to its consideration on that basis.

Specifically, plaintiff argues that the trial judge should have charged two of his requests bearing on contributory negligence (they are not contained in the appendix) the pertinent portions of which are alleged to have been as follows:

“There has also been testimony introduced in this matter regarding the question of speed of the plaintiff’s vehicle. I charge you in evaluating this question of contributory negligence that contributory negligence is conduct on the part of the plaintiff that involved an unreasonable risk of harm to him and contributes as a legal cause to his injury. But, in order to bar recovery, the unreasonableness of the plaintiff’s conduct must have been in its tendency to expose him to the particular risk from which his injury resulted. Thus, a person injured by one means is not denied recovery for his failure to guard himself against potential harm from another entirely unrelated means.
# sH # * * # # *
* * * that if you find that Alphonso Nesta was negligent but that such negligence simply presents the condition under which the injuries were received but was not a contributory cause thereof, then such negligence would not be considered a proximate cause of the plaintiff’s own injuries. Thus, in order to bar recovery by the plaintiff for the injuries sustained the defendant must prove by a preponderance of the evidence that the plaintiff was negligent and must further prove by a preponderance of the evidence that the plaintiff’s negligence proximately, that is directly, contributed to the happening of the accident and the resulting injuries.”

It would have been appropriate had the jury been charged as requested. The fact that a plaintiff has failed to exercise reasonable care for his own safety does not bar his recovery unless his harm has resulted from one of the hazards which makes his conduct negligent. Restatement, Torts § 468, p. 516 (2d ed. 1965). As is stated in the comment which follows the above section:

“When the harm to the plaintiff does not result from the only-hazard which his conduct has created, or from one of the group of hazards which go to make up the total risk to which his conduct has exposed him, but results in some other manner, his contributory negligence does not bar his recovery. Thus one whose negligent conduct in crossing a street without looking out for vehicles has subjected him to the risk of being run down by a ear is not barred from recovery where, as a result of that conduct, he is unforeseeably injured by an explosion of dynamite carried in a truck which collides with an automobile.”

By clear analogy, where an automobile is struck by a tree which falls across the highway, the driver is not to be held guilty of contributory negligence because his presence there at the time the tree fell was occasioned by the fact that prior thereto he had exceeded the speed limit. Prosser, Torts §64, pp. 431-432 (3d ed. 1964). In such case the fall of the tree would be an unexpected and fortuitous occurrence which had no relation to the necessity that the driver proceed at a reasonable speed. Cf. Stoelting v. Hauck, 32 N. J. 87, 101 (1960).

In considering whether the omission to charge as requested calls for reversal under the plain error rule we note that this alleged deficiency has not been briefed by plaintiff as plain error nor has plain error been included as an issue in the Statement of Questions Involved in his brief as required by R. R. 1:7-1 (c). Brodzinski v. Pulek, 75 N. J. Super. 40, 44 (App. Div. 1962), certification denied, Brodzinski v. Pulek, 38 N. J. 304 (1962). Ordinarily, no point will be considered which is not set forth or necessarily suggested in the Statement of Questions Involved. Aiello v. Myzie, 88 N. J. Super. 187, 193 (App. Div. 1965), certification denied 45 N. J. 594 (1965). However, we have considered the issue and find it to be without merit.

We have noted above that, notwithstanding the failure of the court to charge as requested, plaintiff’s counsel, at the conclusion of the charge as delivered, and again at the conclusion of the supplementary charge on proximate cause given in response to a juror’s question, affirmatively expressed satisfaction with the charge. lie did so even though he knew at the time that it did not contain the essence of the formal requests whose omission he now argues was error. We incline to the view that the sound administration of justice does not permit a litigant to avoid the effects of such conduct under cover of the plain error rule.

Relief under the plain error rule is to be sparingly granted. Ford v. Reichert, 23 N. J. 429, 435 (1957). The purpose of the rule requiring objection to the charge is to alert the trial judge to the asserted error and thus afford him an opportunity of correcting it before the jury retires to deliberate. Gluckauf v. Pine Lake Beach Club, Inc., 78 N. J. Super. 8, 18 (App. Div. 1963). Frequently, for reasons of trial strategy or otherwise, experienced counsel elects to overlook an omission or inadvertence on the part of the trial judge. In such case an inference of passive indifference, if not acquiescence, may be drawn. Cf. Priest v. Poleshuck, 15 N. J. 557, 564 (1954); Vails v. Paramus Bathing Beach, Inc., 46 N. J. Super. 353, 357 (App. Div. 1957). But counsel may not be permitted to overlook alleged error in the charge as given to gamble on a favorable verdict and, upon the coming in of an adverse one, seek a “second bite of the apple” on the basis of plain error. Of. Lippman v. Ostrum, supra, 22 N. J., at p. 26. Here we are satisfied and hold that counsel’s affirmative expressions of satisfaction with the charge as given so strongly bespoke acquiescence as to lead us to the conclusion that denial of the relief sought on the basis of plain error would not be inconsistent with substantial justice. R. R. 1:5-3(c).

Plaintiff next urges that it was error to permit defense counsel to question him with regard to skid marks at the scene other than those made by the respective vehicles. During plaintiff’s cross-examination he was asked whether he found other skid marks and replied in the affirmative. He was then cross-examined without objection until he was asked to describe their length. Plaintiff then objected but the question was allowed for the purpose of affecting his credibility by demonstrating that his testimony at the trial varied from that given in his prior- deposition. The trial judge is vested with considerable discretion in determining the extent to which cross-examination may be permitted. We do not find that it was mistakenly exercised here and, in any event, plaintiff could have suffered no prejudice thereby, R. R. 1:5-3 (6), since the trial judge made it clear that the marks were unconnected with the accident.

Plaintiff next complains that it was error “to permit the defendant to testify with regard to the out-of-court statement of a witness and * * * to refuse to allow the plaintiff to introduce a statement concerning the same.” We find this point to be without merit.

The trial judge did not “permit” defendant to so testify. In his direct examination defendant had testified that he and a friend named Baker had returned to the scene of the accident one-half hour after its occurrence, and had found that the skid marks left by plaintiff’s car measured 145 feet in length. Baker was not produced, defendant testifying that upon endeavoring to reach him he found that he had gone to Boston. During the course of- his cross-examination the following took place:

“Q. You don’t know this yourself?
A. What is that?
Q. That Mr. Baker went to see his children in Boston?
A. Oh, he’s there, he’s gone.
Q. Well, somebody told you that?
A. Yes.
Q. Have you made any attempts to go to his house and subpoena him to come here to Court in this'trial, or anyone' on'your behalf?
A. I was ov.er his. home on Thursday morning,, the day of -the trial, when we were to appear here, and explained to him that he probably would be needed in Court and he told me then that someone had come to his house with a statement to sign, stating that the skidmarks were 145 feet, that he was at the scene of the accident after it happened, and they asked him to sign this affidavit, or whatever it was, and he was told that he wouldn’t have to bother to appear.”

Most of the final answer was clearly not responsive and could have been, but was not made the subject of a motion to strike by counsel for the plaintiff. Instead, he elected to let the answer stand and sought to utilize it as a basis for the introduction of an alleged statement (referred to as having been signed by Baker) which he produced and asked Meyer to examine to see if there was any reference in it to 145 feet of skid marks (the inference was that there was not). In the absence of any identification of the statement or proof that it was the one referred to by Baker as related in defendant’s hearsay testimony, this procedure was clearly irregular and the trial judge properly sustained defendant’s objection to the question. During the colloquy which preceded the ruling counsel for plaintiff repeated the witness’ statement in the presence of the jury. Following the ruling there was no motion to strike. There was no error.

We further hold that the judgment was not invalidated by receipt of the jury’s verdict and the polling of the jury in the absence of plaintiff’s counsel. This point is not supported by any factual reference to the appendix. Plaintiff states in his brief that both his and defendant’s counsel had left telephone numbers with “the court” where they could be located when the jury was ready to render its verdict, but counsel for plaintiff was “not notified” and the verdict was received when only counsel for defendant was present. In the absence of an allegation that no attempt was made to locate counsel for plaintiff, we assume that such an attempt was made but counsel could not be immediately located.

Plaintiff has cited no case which holds that the verdict in a civil case may not be received by the court and the jury polled in the absence of counsel, and we know of none. The general rule is to the contrary where there is no statute or rule which requires counsel’s presence. 89 C. J. S. Trial § 489, p. 149 (1955); Henderson v. Zubik, 390 Pa. 521, 136 A. 2d 124, 127 (Sup. Ct. 1957). See also Gould v. Magee, 3 N. J. L. 66 (475) (Sup. Ct. 1809). Of course, normal practice contemplates that both counsel he in the courtroom when the jury returns its verdict and counsel should take care to be present without putting the court to trouble or delay in locating him. It is conceded that the verdict was received and the jury polled in open court in the presence of the trial judge, see R. R. 4:40-4, and that plaintiff’s counsel entered the courtroom just as the jury was leaving. His objection to such procedure, if any, should have been made to the court at that time.

The refusal of the trial judge to permit plaintiff to introduce evidence that defendant had been issued a summons for careless driving was likewise proper. While conceding that ordinarily it would be improper to allow evidence that a party involved in an accident had been issued a traffic summons, plaintiff contends that the evidence was admissible here for the purpose of showing “interest” on the part of defendant. Not so. State v. Cerligione, 133 N. J. L. 424 (Sup. Ct. 1945), affirmed 134 N. J. L. 617 (E. & A. 1946), and State v. Salimone, 19 N. J. Super. 600 (App. Div. 1952), certification denied 10 N. J. 316 (1952), cited by plaintiff in support of this contention, are inapposite. The evidence was properly excluded. Hintz v. Roberts, 98 N. J. L. 768, 771 (E. & A. 1923); Hoffman v. Goldfield, 129 N. J. L. 359, 362 (Sup. Ct. 1943).

Plaintiff contends that the trial judge’s denial of his motion for a new trial was error. He urges that defendant’s negligence was clearly established and that any finding that plaintiff was guilty of contributory negligence was so contrary to the weight of the evidence as to justify the conclusion that it was the product of mistake, passion, partiality or prejudice. The thrust of his argument is that the only possible conclusion from the proofs was that he was free from contributory negligence since he had been guilty of no negligence and, even if he had, the accident would have occurred regardless of it.

The trial judge, following the mandate of R. R. 4:61-1 and applying the rule laid down in Kulbacki v. Sobchinsky, 38 N. J. 435, 444 (1962), declined to disturb the verdict. Having observed the witnesses, he was in a better position than we to judge of their credibility. Hartpence v. Grouleff, 15 N. J. 545, 549 (1954). We may disturb his adverse ruling on the motion only if it amounted to a “manifest denial of justice under the law.” Our review of the record before us convinces us that it did not.

Plaintiff was required to operate his vehicle at such speed and under such control as would a reasonably prudent person, having in mind the traffic conditions ahead. He had been following defendant and when 200 feet from the intersection attempted to pass. His speed in this endeavor could have been found to be related to the failure on his part to observe the turn indicator on defendant’s vehicle. Further, the hazards peculiar to speed involve diminished control of the vehicle. 2 Harper & James, the Law of Torts, § 20.5, p. 1148 (1956). Here, the faster he accelerated as he approached the intersection in the act of attempting to pass, the less able he would have been to control his vehicle in the event of any movement of defendant’s car to the left, and the more likely the chance of a collision between them. The issue of whether or not his speed (in terms of being too fast for conditions) amounted to contributory negligence was peculiarly for the jury’s determination. It could either have found that his speed proximately contributed to the occurrence of the accident, having in mind the aggregate of the hazards he should reasonably have foreseen might result therefrom, or that the movement of defendant’s car was such an unexpected event that plaintiffs speed played no part in bringing about the ensuing collision, i. e., the collision would have occurred regardless of the speed at which he was traveling. Cf. Menger v. Laur, 55 N. J. L. 205, 215 (Sup[. Ct. 1893). See also Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240 (S. Ct. 1899).

Plaintiff’s argument presumes that the jury was bound by his testimony that as he was proceeding slowly opposite defendant’s car the latter turned left directly into him. But the jury could have determined from the evidence that the relative position of the ears was not as he had testified and that he was traveling much faster than he had admitted. He told Officer Chafatelli at the scene that defendant made a turn into his “path,” which would indicate that the cars were not abreast when defendant made his move. Confirmation of this is found in Chafatelli’s testimony that the initial skid marks made by plaintiff’s car began 15 feet before the point of impact. If allowance is made for reaction time, the jury could have found that plaintiff was aware of defendant’s move some time before his wheels began to leave skid marks. He admitted telling Mrs. Meyer immediately after the accident that if he had seen their signal he would have stopped. The jury could have concluded from the proofs that if he had been paying better attention to the signals of the car ahead and driving more slowly, plaintiff would not have sustained the injuries claimed.

We find the remaining points raised to be without merit.

Affirmed.


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

text:
    HOWARD J. THECKSTON AND CAROLINE THECKSTON, PLAINTIFFS-RESPONDENTS, v. TRIANGLE PUBLICATIONS INC., A CORPORATION OF DELAWARE, AND DENNIS M. HIGGINS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1968
    Decided April 25, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Louis G. Hill, member of the Pennsylvania Bar, argued the cause for appellants (Messrs. Powell & Davis, attorneys; Messrs. Dilworth, Paxson, Kalish, Kohn & Levy, members of the Pennsylvania Bar, attorneys).

      Mr. Harry Green argued the cause for respondent Howard J. Theekston.

      Mr. John S. Fields argued the cause for respondent Caroline Theekston (Mr. Sidney W. Bookbinder, attorney).
   Sullivan, S. J. A. D.

Plaintiffs Howard J. and Caroline Theekston brought this libel suit against Triangle Publications Inc., publisher of the Philadelphia Inquirer, and Dennis M. Higgins, a reporter on the staff of the newspaper. After a 36-day trial, the jury returned a verdict for $60,000 compensatory damages in favor of Howard J. Theekston. Mrs. Theekston was awarded $20,000 additional damages for loss of consortium arising out of the libel.

Mr. Theekston is the clerk of the Camden County District Court. The charge of libel is based on a series of newspaper articles and an editorial appearing in defendants’ newspaper concerning two incidents which, took place in the District Court Clerk’s office.

The first involved a Puerto Rican woman who had appeared at the District Court Clerk’s office in connection with a dispossess suit and who had been arrested as disorderly on Theckston’s complaint, forcibly removed from the clerk’s office and jailed. On the following morning the woman pleaded guilty to a disorderly person charge and was sentenced to pay a fine of $25 and costs or serve 15 days in jail. Not being able to raise the money immediately, she was remanded to jail where she remained four days until her son paid the fine and costs.

The second involved a memorandum issued two days after the first incident to personnel in the District Court Cleric’s office. In it Theekston stated that it had been brought to his attention that some employees had publicly criticized his actions. The memorandum warned employees that Theck-ston would brook no interference with his administration of the affairs of the clerk’s office and that if there should be a recurrence, he would take immediate action to dispense with the- services of the person responsible.

As a result of the foregoing the newspaper wrote a series of articles and an editorial highly critical of Theckston’s handling of the first incident and his issuance of the intra-office memorandum.

Theckston’s contention is that these publications contained inaccuracies and were slanted against him so as to produce a distorted picture of what really happened. He alleges that his version of the first incident was not fully presented by the newspaper, and the report of the so-called interview with him was written in tongue-in-cheek style. He also charges that newspaper characterizations of his conduct and actions were so extreme and unfair as to exceed the admittedly wide latitude allowed a newspaper in reporting on the official conduct of a public official.

Defendants contend that plaintiffs failed to make ont a jury issue of liability within the meaning of New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), or that at least the jury verdict as to both liability and damages was contrary to the weight of the evidence.

We have examined the whole record to ascertain whether plaintiffs have presented a jury issue of liability within the framework of the rule laid down in New York Times Co. v. Sullivan. We conclude that defendants’ motion for a dismissal of the complaint made at the close of the evidence should have been granted.

New York Times Co. v. Sullivan, held that there is a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The court noted that a rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited to amount — leads to a comparable self-censorship in violation of the Eirst and Eourteenth Amendments. The proper rule to be applied under the constitutional guarantees, said the court, was one which prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. One seeking to prove actual malice, added the court, must do so with the convincing clarity which the constitutional standard demands. (Plaintiffs have not challenged the trial court’s ruling that Theckston was a public official and subject to the rule enunciated in New York Times Co. v. Sullivan.

Applying the foregoing rules to the record before us, we conclude that a prima facie case of liability was not proved. If is to be noted that New York Times Co. v. Sulli van dealt with a case involving a publication which contained material factual falsehoods. Even then the broad rule of immunity set forth above was held to apply.

Here the factual misstatements are incidental and do not go to the heart of the alleged libel. The thrust of plaintiffs’ complaint is that the newspaper accounts were slanted and presented an unfair picture of what really happened. Actually, we do not have so much a case of factual falsity as one of impartial reporting and fair editorial comment.

The trial judge characterized the newspaper’s investigation of the story prior to publication as at best desultory and haphazard. He concluded that this, together with the failure of the newspaper to inquire as to possible motive of the employee in the District Court Clerk’s office who first alerted the newspaper to the incident, as well as the “fact that the plaintiff was given no bona fide opportunity to tell his version of the story”, satisfied the requirement of proof of actual malice.

As heretofore noted, the test is actual malice — that is, knowledge that the publication was false — or reckless disregard of whether it was false or not. The measure of proof is convincing clarity. Mere negligence in failing to discover misstatements is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. New York Times Co. v. Sullivan, supra. It is on this score that we conclude that plaintiffs failed to establish a prima facie case of liability. Baldine v. Sharon Herald Co., 391 F. 2d 103 (3rd Cir. 1968).

Defendant newspaper had received a lead on a story concerning the alleged abuse of his office by plaintiff. Defendant Higgins was assigned to the story. He made a routine investigation of the incident and interviewed a number of persons, including Theckston. As a result, the publications, highly critical of Theckston’s actions, appeared. (As heretofore noted, the publications included a report of a telephone interview with Theckston in which he gave his version of why he had the woman arrested.) Granted that the publications lacked the quality of impartial news reporting, we fail to see how it adds up to a showing by convincing clarity of actual malice. Speech concerning public affairs is the essence of self-government so that, where public officials are concerned, it is only the calculated falsehood which will afford redress. Garrison v. State of Louisiana, 379 U. S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964).

In New York Times Co. v. Sullivan, supra, the Supreme Court referred to its prior holdings that criticism of a judge or his decision, even though the utterance contain “half truths” and “misinformation,” does not justify the punishment as criminal contempt; the court adding that if judges are to be treated as men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials.

Beckley Newspapers Corp. v. Hanks, 389 U. S. 81, 88 S. Ct. 197, 19 L. Ed. 2d 248 (1967), is a recent decision involving a court clerk who had recovered a libel judgment against a newspaper for a series of articles written on fluoridation of the local water supply. One article had accused the clerk of ordering over the telephone that he did not want his name to appear in the newspaper again and added, “He backed up this order with an inexplicit threat — one merely intended to frighten those who are easily intimidated.” The article also stated that “The only conclusion to which we can come is that either Hanks or Mrs. Hurt (President of the County Board of Health) have been in league towards the fanatic end, believing all the wild-eyed ravings against fluoridation despite decades of experience to disprove them, or that perhaps his blustering threats were able to intimidate the lady.” In a per curiam opinion, the Supreme Court unanimously reversed the libel judgment, holding that the evidence presented to show actual malice lacked the convincing clarity demanded by the constitutional standard and was insufficient to present a jury question.

The judgment herein is reversed and the matter remanded for entry of a judgment in favor of defendants. No costs on this appeal.