author: Wood, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. STANLEY S. ZIMMELMAN, DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided February 3, 1972.

      Mr. William G. Levine, Assistant Deputy Public Defender, for the motion.

      Mr. Martin Margolit, Assistant Prosecutor, contra (Mr. A. Donald Bigley, prosecutor).
   Wood, J. C. C.

(temporarily assigned). Defendant was indicted for violation of N. J. 8. A. 2A:107-1, which forbids the marking or improper use or display of the flag of the United States. The indictment charged that on July 4, 1970, in the Borough of Audubon, Camden County, defendant

“did deface the American Flag by putting the sign of peace in black ink on the face of two American Flags and displaying them on the side of an ice cream truck.”

Defendant waived trial by jury. He was tried before this court on November 19, 1971 and found guilty as charged. He now moves pursuant to B. 3 :10-3 to set aside the judgment on the ground that N. J. 8. A. 2A:107-1, the statute under which the indictment is found, is unconstitutional in that it contravenes the First Amendment of the United States Constitution.

The facts are not in dispute. On July 4, 1970 defendant was employed as the operator of an ice cream truck of the type designed for the itinerant sale of ice cream and other confections in suburban streets during warm-weather months. He stenciled the design commonly known and referred to as the “peace symbol” on both sides of two small American flags and affixed these flags to the right and left rear-view mirrors of his truck. He then proceeded to operate the truck in the course of his business, with the flags so displayed, upon the streets of the Borough of Audubon.

Predictably, telephone calls of protest in considerable numbers were speedily received at the borough police headquarters. Defendant was promptly located and arrested and the flags confiscated. This indictment followed.

Defendant made no attempt to evade or resist arrest. He freely admitted and acknowledged his actions. He explained, both to the police and at the trial, that his intent was to emphasize his conviction that one of the ideals which the flag symbolizes is the pursuit of peace and to awaken people, particularly on Independence Day, to the need for a reaffirmation of that ideal. He denied any intent to “defile the flag” or to violate the law.

N. J. 8. A. 2A:107-1 provides as follows:

Any person who, for exhibition or display, places, appends, annexes or affixes, or causes to be placed, appended, annexed or affixed, to or upon any flag, standard, color or ensign of the United States, or state flag of this state, any inscription, design, device, symbol, name, advertisement, words, characters, marks, notice or token of any nature whatever, or who displays or exhibits or causes to be displayed or exhibited any such flag, standard, color or ensign upon which shall in any manner be placed, attached, annexed or affixed any such inscription, design, device, symbol, name, advertisement, words, characters, marks, notice or token, is guilty of a misdemeanor.

By N. J. 8. A. 2A:107-3 the term "flag” is defined to include:

The words ‘flag, standard, color or ensign,’ as used in this chapter, include any picture or representation, of whatever substance or size, evidently purporting to be a flag, standard, color or ensign of the United States, or state flag of this state, or a picture or representation of either, upon which shall be shown the colors, the stars and stripes, in any number of either, or by which the person seeing the same may without deliberation believe the same to represent the flag, standard, color or ensign of the United States or state flag of this state.

Defendant attacks the constitutionality of N. J. 8. A. 2A:107-1, as amplified by the definition contained in N. J. 8. A. 2A:107-3, on two principal grounds: (1) it abridges or curtails and thus violates the First Amendment guarantee of freedom of speech, and (2) it is "void for vagueness.”

Defendant’s first and principal contention is that the statute violates the First Amendment. Specifically, he argues that it is "overbroad” and “sweeps traditional First Amendment activity within its ambit.”

The statute was enacted in 1904. L. 1904, c. 16. It has remained on the statute books without amendment since that time. There has been, so far as I can determine, no previous reported attack on its constitutionality.

The flag of the United States is a proper subject of legislative protection by the states. In Halter v. Nebraska, 205 U. 8. 34, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the Supreme Court, speaking through the first Mr. Justice Harlan, upheld the constitutionality of a Nebraska statute virtually identical with the one here in question. The court underscored the significance and symbolism of the flag in the following eloquent terms:

* * * are 0f opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation’s power, — the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression. As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

The court pointed out that, at the time of that decision, more than half the states of the IJnion had enacted similar legislation to protect the flag, and added:

That fact is one of such significance as to require us to pause before reaching the conclusion that a majority of the States have in their legislation, violated the Constitution of the United States.

Nevertheless, defendant argues, the placing of extraneous symbols on the flag is a form of “speech” and absolutely protected by the First Amendment regardless of any apparently contravening policy. This court cannot agree that the placing of symbols or words or other devices on the flag, assuming it to be some form of speech or of communication, is activity absolutely protected by the Constitution. That certain national or state interests may be protected even if such protection involves some slight curtailment of unbridled “freedom of speech” was stated by the Supreme Court in United States v. O’Brien, 391 U. S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The court, in upholding the conviction of defendant fox publicly burning his draft registration card, held that the governmental interest in the functional utility of the registration card in the machinery of the draft is of such importance that it overrode any incidental and slight curtailment of freedom of speech occasioned by laws making its destruction a crime. The court said:

We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

In Street v. New York, 394 U. S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969), the Supreme Court reversed the conviction of a defendant under § 1425, subd. 16, par. (d) of the New York Penal Law which made it a misdemeanor "publicly [to] deface, defile, or defy, trample upon or cast contempt upon either by words or act” any flag of the United States. Defendant, outraged by the news of the wounding of a civil rights leader, publicly set fire to a flag owned by him, declaring as he did so that "we don’t need no damn flag.” The court held that the speech, even though hostile or derogatory to the flag, was constitutionally protected. However, it expressly did not hold that the burning or destruction of the flag by itself was so protected; rather, it held that in that case the words and acts were inseparable and since it could not be determined from the record whether defendant’s speech or his acts were the basis of the conviction, the conviction must fall. The court emphasized that it was defendant’s speech, not his acts which were protected. It declined to determine whether a conviction for the offensive acts alone, dissociated from the words, would pass eonstitutional muster. Chief Justice Warren and three other Justices dissented. Mr. Justice Black in his dissenting opinion said:

It passes my belief that anything in the Federal Constitution bars a State from malting the deliberate burning of the American Flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against.

The flag, as stated by Mr. Justice Tortas in his dissent in Street v. New York, ’supra, is a special kind of personalty. Traditionally and properly it has been accorded respect and protection as the symbol of onr free republic and all that it stands for.

Statutes prescribe how the flag may be displayed; how it may lawfully be disposed of; when and for what purposes it may and may not be used. See e. g., 4 U. S. C. A. §3; 36 U. S. C. A. § 172-177. A flag may be property in a sense but it is property burdened with peculiar obligations and restrictions. Certainly, as stated in Halter v. Nebraska, supra, these special conditions are not per se arbitrary or beyond governmental power under the Constitution. Cf. Mr. Justice Tortas dissenting in Street v. New York, supra.

This court concludes that the protection of the integrity of the flag is an eminently valid governmental interest which may justify incidental limitations on Tirst Amendment freedoms. Surely that limitation is no more than slight or incidental in this case. The statute does no more than prohibit the defacing of the flag with extraneous markings of whatever nature. It is equally forbidden to place on the flag a representation of the seal of a patriotic organization such as the American Legion; or an offensive symbol such as the swastika; or a commercial advertisement; or a symbol of controversial significance such as the one here used by defendant.

To prohibit the use of the flag in this manner is not in any real sense to deny the constitutional guarantee of free speech any more than it is such a denial to limit the number and size of billboard advertisements along interstate highways. Qf. 33 U. S. C. A. § 131. Defendant might well have flown different banners emblazoned with the symbol. He might have displayed it in any one of many other ways. The prevalance of the symbol in every kind of context is too well known to require comment. Its use is, of course, constitutionally protected. But to prohibit the use of the flag of the United States for its display cannot be said to be constitutionally improper.

Defendant argues, nevertheless, that N. J. 8. A. 3A :107-1 is unconstitutional because it is overbroad, sweeping traditional First Amendment activity within its ambit. “Over-breadth” has, on occasion, been the constitutional petard with which the courts have hoisted some statutes as infringing on constitutionally protected activity. Thus, in Cox v. Louisiana, 379 U. 8. 536, 85 8. Ct. 453, 13 L. Ed. 3d 471 (1965), the Supreme Court, dealing with a breach of the peace statute, struck it down because

The Louisiana statute as interpreted by the Louisiana Court is * * * likely to allow [prosecution and] conviction for innocent speech. * * * Therefore * * * the conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly.

In Long Island Vietnam Moratorium Committee v. Cahn, 437 F. 2d 344 (1970), the Court of Appeals for the Second Circuit declared overbroad and thus unconstitutional a New York statute which, like the Nebraska statute in Halter, supra, was almost identical with the New Jersey statute. In that case plaintiff sought an injunction against threatened prosecution for the dissemination of certain lapel buttons containing the so-called “peace symbol” superimposed upon a juxtaposition of stars and stripes which might have been taken as representing a portion of the flag. A three-judge federal district court held the New York statute constitutional but ruled that it did not apply to the plaintiffs’ buttons, the wearing and dissemination of which could not be prosecuted thereunder. Long Island Vietnam, Moratorium Committee v. Calm, 322 F. Supp. 559 (E. D. N. Y. 1970). The Court of Appeals struck down the statute in its entirety, holding that it potentially could apply to plaintiffs and that they were entitled to injunctive relief. The overbreadth, the court found, lay in the broadly inclusive definition of the term "flag” contained in the statute. N. J. 8. A. 2A:107-3 sets forth a similar broad definition.

Long Island is, on its facts, clearly distinguishable from the case at bar. What was at issue there was a threatened prosecution for dissemination of a lapel button with, at most, an impressionistic design capable of being taken to represent the flag. Here what is prosecuted is the affixing of an extraneous design on the flag itself. Moreover, while the opinions of the Courts of Appeals of the United States are entitled to respect, this court, dealing with a New Jersey statute, is not bound by a ruling of the Court of Appeals for the Second Circuit dealing with a New York statute.

Defendant refers to State v. Spence, 5 Wash. App. 752, court in the State of Washington declared unconstitutional a flag use statute of that state and reversed a conviction of defendant who taped a peace symbol to a flag and displayed it from a window. One judge dissented, being of the opinion that the statute came well within the test set forth in United States v. O’Brien, supra. I fully concur with the reasoning in that dissent.

I conclude that, at least so far as this defendant is concerned, N. J. S. A. 2AA07 — 1 is not unconstitutional by reason of overbreadth. Whether the definition set forth in N. J. 8. A. 2A :107 — 3 might be held overbroad as applied to certain activities need not bo decided. It is the flag itself which the statute seeks to protect from physical alteration. The flag is unique and is sui generis. Its identification does not depend on the various representations enumerated in N. J. 8. A. 2A:107-3. N. J. 8. A. 2A:107-1 itself is not unconstitutional. Nor is the statute vague or uncertain. Nothing could be clearer than that physical alteration of the flag of the United States in any manner whatever is prohibited. The argument that the statute is void for vagueness is without merit.

For the reasons stated this court holds that N. J. 8. A. 2A:107-1 is not unconstitutional either generally or as applied to this defendant.

The motion to set aside the judgment of conviction is denied.


source: Caselaw Access Project

author: Breslin, J. C. C.

license: Public Domain

text:
    GENE M. BIALKOWSKI, PLAINTIFF, v. BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND GEORGE CALZA, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 7, 1972.

      Messrs. Olein, Pressler £ Shapiro, attorneys for plaintiff..

      Mr. Michael L. Scherby, attorney for defendants.
   Breslin, J. C. C.

(temporarily assigned). This matter originally came before the court on an order to show cause why plaintiff was not entitled to relief sought in his verified complaint in lieu of prerogative writs against defendants Borough of Ridgefield' and George Calza. The parties have stipulated that, the court now consider and decide the issue presented as counter-motions for summary judgment.

The facts disclose that plaintiff holds a certificate of exemption issued January 1964 declaring that he had joined the Ridgefield Eire Department in June 1956. Eor the four consecutive years from 1968 to 1971 defendant borough passed resolutions appointing plaintiff as building inspector. At the annual organization meeting of the mayor and council a resolution appointing defendant Calza as building inspector for the year 1973 was adopted.

Plaintiff claims that he is entitled to tenure during good behavior in the office of building inspector as an exempt fireman, pursuant to N. J. 8. A. 40A:14^64. Defendants attack this claim as barred by the provision of N. J. S. A. 40:87 — 15 that a borough building inspector shall hold office for one year. This controversy arises because N. J. 8. A. 40A:14^64, effective as of July 1, 1971, fails to specifically limit its application to offices with terms not fixed by law.

Prior to July 1, 1971 the entire statutory set-up pertinent to the tenure of exempt firemen was found in N. J. 8. A. 40 :47-60 through 65. Section 63 referred to abolishment of positions. Sections 61 and 65 pertained to dismissal hearing procedure. Section 60 covered any form of governmental employment where the term of office was not fixed by law and prohibited removal for political reasons. Section 63 covered only offices and positions not created by the State Constitution and made no mention of term of office or political reasons for removal. Finally, section 64 was also limited to offices and positions not created by the Constitution, failing again to mention either term of office or political removals, and further required firemen to serve three consecutive years in office before attaining tenure.

Clearly, the above statutory scheme is ambiguous, inconsistent and contradictory. Plaintiff contends that these difficulties have been resolved by the enactment of 40A :14-60 through 65. Sections 63 and 65 now refer to abolishment of positions. Section 61 provides that all exempt firemen be entitled to the same rights and privileges, and section 62 pertains to inter-municipal employment. The two sections relevant to the case at hand are sections 60 and 64, both of which have identical provisions for hearing procedures. Section 60 covers any form of governmental employment where the term of office is indeterminate and prohibits removal for political reasons. Section 64 is limited to offices not created by the Constitution, requires three consecutive years of service and fails to make any mention of term of office or removal for political reasons.

Plaintiff contends that section 64 is an exception to section 60. As a result, under the operation of the new statutory arrangement exempt firemen have tenure during good behavior in certain offices even where the term of office is fixed by law. This position is contrary to that taken by the courts when dealing with the predecessors of the present statutes.

The controlling case on the interpretation of the preceding statutory scheme in Greenfield v. Passaic Valley Sewerage Comm’rs, 126 N. J. L. 171 (Sup. Ct. 1941), in which plaintiff, an exempt fireman, was appointed to a statutory five-year term as a member of the Passaic Valley Sewerage Commissioners. When his term ended plaintiff claimed tenure during good behavior under what later became known as N. J. S. A. 40:41-63. The court concluded that the statute was not intended to give, and did not give, tenure to occupants of offices which are for a period of time definitely fixed by the legislature. There were four reasons set forth by the court that lead to this conclusion. It is the opinion of this court that these reasons are still applicable to N. J. S. A. 40A :14-64.

The first reason was based on the observation that the statute called for a hearing in order to remove an officer, but provided no machinery for this procedure. The court recognized that offices with unfixed terms are usually under a superior officer or body that is qualified to accept complaints and to seek to remove for cause.

Secondly, the court looked to other legislation, such as the statute granting tenure to war veterans which specified terms not fixed by law, and statutes with similar language, which were interpreted not to repeal legislation that affixed a definite period of holding to an office.

The third reason was that the term “removal” in the statute has no relation to the termination of a fixed term.

Finally, the court took notice that the statute was silent as to elective offices as well as offices with fixed terms. If the latter is to be included by virtue of legislative silence, then also must the former. The court found the consequences of such statutory construction unacceptable.

The above ease was favorably cited in Allgaier v. Woodbridge Tp., 5 N. J. Super. 31, 37 (App. Div. 1949), where the court denied tenure for good behavior to a building inspector who was an exempt fireman. The plaintiff had held the office continually for about 13 years under only one appointment.

The instant situation differs from the above and is more comparable to Smith v. Matawan, 136 N. J. L. 585 (Sup. Ct. 1941), aff’d 139 N. J. L. 100 (E. & A. 1943), in which plaintiff had been reappointed each year for 13 consecutive years. The court held that since he had accepted an appointment for the term mentioned on each annual occasion, plaintiff could not claim the status of an exempt fireman. This holding was followed in Lohsen v. Borough of Keansburg, 6 N. J. Super. 485, 493, 495 (Law Div. 1949).

In light of the foregoing decisions it is evident that plaintiff herein could not claim tenure during good behavior under N. J. S. A. 40:47-63. The language and context of N. J. S. A. 40A:14-64 do not reveal such a radical departure from the spirit of N. J. S. A. 40:47-63 that plaintiff can now claim a different status. This court presumes that when the Legislature enacted the new statutory scheme it was thoroughly conversant with its own previous legislation and the judicial construction of same, Barringer v. Miele, 6 N. J. 139, 144 (1951), particularly since it continued the use of the same language, Egan v. Erie R. Co., 29 N. J. 243, 250 (1959). Consequently, the previous judicial construction is deemed to be in accord with the present legislative intent. In re Keogh-Dwyer, 45 N. J. 117, 120 (1965).

Plaintiff argues that the restrictive interpretation in Greenfield v. Passaic Valley Sewerage Comm’rs, 126 N. J. L. 171 (Sup. Ct. 1941), can be abandoned without doing violence to the reasoning of that case if N. J. S. A. 40A: 14-64 is read to apply only to offices of an inherent nature that is compatible with tenure occupancy. The Legislature has already made tenure exceptions for a borough tax collector (N. J. S. A. 40:46-6.22x1), a tax assessor (N. J. S. A. 40:46-6.13a) and a municipal clerk (V. J. S. A. 40:46-7). Such exceptions should be left to the express determination of the Legislature. Plaintiff’s interpretation casts upon the courts the task of delving into the inherent nature of each office every time a claim for exempt fireman tenure is raised.

It is the role of the judiciary to construe legislation not solely for the purpose of resolving a particular controversy but also to demonstrate the operation and effect of certain statutory language so that the citizenry can better comply with the law and the Legislature can better construct the law. In 1941 the court gave specific meaning to the language into the statutory scheme of N. J. S. A. 40 :47-63. In 1971 the Legislature incorporated this same language into the statutory scheme of N. J. S. A. 40A: 14-60 et seq. The Legislature gave the court no indication that the meaning of the language had been changed and provided no guidelines to either the court or the citizenry that would permit and direct some deviation from the 1941 judicial determination of the operation and effect of such language.

It is the holding of this court that N. J. S. A. 40A:lL-64 was not intended to give and does not afford tenure during good behavior to exempt firemen in office where the term of office is fixed by law. Plaintiff, therefore, is not entitled to be reinstated as building inspector or to receive any emoluments of that office for the year 1972. His motion for summary judgment is therefore denied and the counter-motion of defendants granted.


author: Walsh, J. D. C.

text:
    ACOUSTICS, INC., PLAINTIFF, v. THE HANOVER INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 21, 1971.

      Mr. Ralph A. Yacavino for plaintiff.

      Mr. Anthony J. LaRusso for defendant (Messrs. Lindabury, McCormick & Estabrook, attorneys).
   Walsh, J. D. C.

(temporarily assigned). The facts leading to the present controversy reveal that on November 4, 1968 Arnold Walter Nursing Home (Walter) entered into a contract with Eussdick Construction Corporation (Eussdick) for the construction of a nursing home. Under the terms of the contract Eussdick agreed to furnish an PHA payment bond in the amount of $537,532.00, which also was executed on November 4, 1968. Under the terms of the bond Eussdick appeared as principal, defendant as surety, Walter as owner-obligee and Eidgewood Savings Bank as lenderobligee. Among the specifications accompanying the contract were provisions calling for the installation of acoustical ceilings in certain areas of the nursing home. On or about October 27, 1969 plaintiff and Eussdiek entered into a contract whereby plaintiff agreed to install the acoustical ceilings at the nursing home for the sum of $9,595. They subsequently entered into three change orders providing for an additional $1,321. in extras.

Plaintiff was one of the last subcontractors to perform work at the nursing home since it was necessary to have the structure substantially completed before the acoustical ceilings were installed. Plaintiff completed the work and was paid on account $4,000, leaving an undisputed balance of $6,911.00. Eussdiek acknowledged its indebtedness to plaintiff in writing, and defendant sent a telegram on October 9, 1970 verifying its bond subject to the obligee’s priority, the limit of liability of the bond and the two-year limitation for suits. The telegram also affirmed defendant’s willingness to pay any valid claim for labor and material furnished by a subcontractor. On or about November 5, 1970 Eussdiek and Walter filed petitions under chapter 11 of the Bankruptcy Act. Plaintiff now seeks the balance of its money from defendant surety.

The applicable law governing plaintiff’s claim is summarized in Graybar Electric Co. v. Continental Cas. Co., 50 N. J. Super. 289 (App. Div. 1958), where the court stated:

The great weight of authority sustains the right of a person furnishing labor and materials on a private building to recover under a contractor’s bond in which the owner is obligee and which is conditioned upon the payment by the contractor of all claims for labor and materials, [at 298]

Where the bond and contract refer to each other the two documents are considered to be integrated writings and must be considered together. The contract expressed the obligation of Eussdiek to pay for all material and equipment required for the job, and required him to furnish Walter with a payment bond known as a “contract bond-dual-obligee” which provided in part:

NOW, THEB.EFOKE, the condition of this obligation is such that, if Principal shall well and truly ijerform all the undertakings, covenants, terms, conditions and agreements of said Contract on its part, and fully indemnify and save harmless Obligees from all cost and damage which they may suffer by reason of failure so to do, and fully reimburse and repay Obligees all outlay and expense which Obligees may incur in making good any such default, and further, that if Principal shall pay all persons who have contracts directly with Principal for labor or materials furnished pursuant to the Xsrovisions of said Contract, failing which such persons shall have a direct right of action against Principal and Surety under this obligation, subject to Obligees’ priority, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

This language is similar to a provision contained in the standard form of the American Institute of Architects bond referred to in the case of Johnson Electric Co. v. Columbia Casualty Co., 101 Fla. 186, 133 So. 850, 77 A. L. R. 1 (Fla. Sup. Ct. 1931). At the time of the Johnson decision that provision had been construed in several jurisdictions as being sufficient to protect subcontractors not direct parties to the bond or the contract secured.

A review of the law indicates that plaintiff in the present situation occupies the status of a third-party beneficiary. Restatement, Security, § 165, reads:

Where a surety for a contractor on a construction contract agrees in terms with the owner that the contractor will pay for labor and materials, or guarantees to the owner the promise of the contractor to pay for labor and materials, those furnishing labor or materials have a right against the surety as third party beneficiaries of the surety’s contract, unless the surety’s contract in terms disclaims liability to such persons.

The primary concern of the court in ascertaining the rights of the third-party beneficiary is to ascertain the intention of the parties to the agreements out of which the alleged rights emanate. In order to examine the intent of the parties the court must look at the integrated documents and accord their language a reasonable meaning where possible, since a construction which gives the documents meaning it preferable to one which leaves a portion of the agreements ambiguous. See Cooper v. Kensil, 31 N. J. Super. 87 (Ch. Div. 1954), aff’d 33 N. J. Super. 410 (App. Div. 1954).

A thorough examination of the integrated documents indicates that one of the specific intentions of the parties was to provide for payment of third-party beneficiaries supplying labor and materials to the construction job in the event Russdick failed to meet its obligations.

Turning now to the question of damages, we are faced with a more difficult problem. It is true that the parties have agreed that plaintiff has a valid claim against Russdick for $6,911. However, defendant surety contends that its obligation on the bond was conditioned by the obligeeowner paying the principal contractor all sums due and owing on the construction contract. Since the owner failed to do this, defendant claims that its obligation under the bond is discharged. This defense is based on provision 1 of the bond, which states that

The Surety shall not be liable under this Bond to the Obligees, or either of them, unless the said Obligees, or either of them, shall make payments to the Principal strictly in accordance with the terms of said Contract as to payments, and shall perform all the other obligations to be performed under said Oontraet at the time and in the manner therein set forth.

A careful reading of the provision indicates that it only pertains to the liability of the surety to the obligees. Since plaintiff is not an obligee, this provision does not in any way affect plaintiff’s claim against defendant. This conclusion is also supported by defendant’s telegram of October 9, 1970, which makes no mention of plaintiff’s claim being subject to provision 1 of the bond.

Defendant next argues that provision 4 of the bond required defendant’s written consent to any changes in the construction where the cost thereof, when added to prior changes or alterations, caused the aggregate changes and alterations to exceed 10% of the original contract price. Since the aggregate changes and alterations exceeded the contract price in excess of 100%, defendant contends that it is no longer bound by the terms of the bond, and therefore is not required to pay plaintiff.

In support of this defendant alleges that a change in the construction plans from a dry sprinkler system to a wet sprinkler system caused substantial and material changes in the installation of the acoustical ceilings which were not called for by the original contract and specifications and, therefore, plaintiff’s claim is not covered by the bond.

In researching this issue the court notes that in Development Corp. of America, Inc. v. United Bonding Ins. Co., 413 F. 2d 823 (5 Cir. 1969), the court applied the rule adopted in Florida as follows:

a departure from a construction contract will not automatically relieve and exonerate a surety. If, however, there is a departure that results in injury to the surety, the surety will be relieved and discharged to the extent of its injury, [at 826]

A similar rationale was applied in Zuni Construction Co., Inc. v. Great American Ins. Co., 86 Nev. 364, 468 P. 2d 980 (Nev. Sup. Ct. 1970) which cited as authority Restatement, Security, § 128(b), and stated:

that when the contract change results in an easily measured damage to the compensated surety so that the penalty of a total discharge of the surety would be disproportionate to the blame attaching to the creditor for the modification, the surety is discharged only to the extent of its loss, [at 982]

I feel that a similar principle of law should be adopted in the present situation since it results in substantial justice to both parties. Plaintiff should be entitled to recover for the labor and materials it furnshed under the terms of the original contract and specifications. However, defendant should not be obliged to pay for extras that exceeded the 10% limitation contained in provision 4 of the bond, unless it consented to same in writing.

Plaintiff claims that the work it contracted to perform under its proposal of October 24, 1969 is the same as required under the original contract and specifications. My examination of the two documents fails to disclose any obvious similarity. This, coupled with defendant’s claim that the change from a dry to a wet sprinkler system resulted in a substantial change from the acoustical work called for in the original contract and specifications, raises a question of fact as to the amount of damages that plaintiff should be entitled to recover.

Therefore, partial summary judgment shall be entered on behalf of plaintiff on the issue of defendant’s liability. Plaintiff shall not be entitled to summary judgment as to the issue of damages since a question of fact exists regarding what portion of the work was performed by plaintiff pursuant to the original contract and specifications and what portion constituted extras not covered by the bond.


author: Per Curiam.

text:
    LOUIS LUSKY, ET AL., PLAINTIFFS-APPELLANTS, v. CAPASSO BROTHERS, A PARTNERSHIP, AND FRANK CAPASSO AND GERALD F. CAPASSO, PARTNERS, DOING BUSINESS AS CAPASSO BROTHERS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 1, 1972
    Decided February 23, 1972.

      Before Judges Lewis, Halpern and Lora.

      Mr. Donald Horowitz argued the cause for appellants (Messrs. Cummins, Cummins, Dunn, Horowitz, Ro'Sner and Pashman, attorneys).

      Mr. Alfred De Cotiis argued the cause for respondents (Messrs. Van Riper, Belmont and Villanueva, attorneys; Mr. Adrian I. Karp, on the brief).
   Per Curiam.

Plaintiffs, 60 in number, appeal from an order denying their motion to maintain their action as a class action. While said order is interlocutory in nature, if leave to appeal had been sought, such leave would in all probability have been granted, and we would have elected to consider the merits of the appeal and decided it simultaneously with the motion for leave to appeal. R. 2:11-2. Hence leave to appeal in accordance with plaintiffs’ alternative request is granted nunc pro tunc and we are disposing of the matter on the merits. Adams v. Adams, 53 N. J. Super. 424, 429 (App. Div. 1959), Certif. den. 30 N. J. 151 (1959); R. 2:2-4.

On February 13, 1968 defendants and the Village of Ridgewood entered into a license agreement which granted to defendant-partnership a three-year exclusive privilege of removing garbage within the village. Pursuant to the aforementioned license agreement defendants entered into individual agreements with the named plaintiffs and virtually all of the 7,000 homeowners, residents, property owners and operators of business establishments in the village for various garbage removal services.

The complaint sounds both in contract and tort alleging breach of the license and individual agreements with plaintiffs and other members of the proposed class, and wrongful conduct in coercing and attempting to coerce full payment for services not rendered, as well as for the wrongful discontinuance of garbage collection services.

The requirements for maintaining a class action are set forth in R. 4:32-1, the source of which is the 1966 amendment of the corresponding federal rule. Eirst, since approximately 7,000 potential members of the class may be involved, there is little dispute that the class is so numerous that joinder of all members is impracticable. This criterion will be met even if there are variances in the extent of the breaches or if, as defendants contend, there are many of the 7,000 agreements which were not breached.-

Second, in view of the fact that plaintiffs’ claims are grounded essentially in the contractual relationships which arose from the aforementioned license and individual agreements, there are questions of law and fact common to the class even though some variances exist in the virtually identical agreements which, among other things, designate a. specific place on a particular property from which the garbage will be removed, the rate charged varying accordingly, e. g., for removal from the rear yard, from the interior of the premises, etc. Hone of the plaintiffs or other members of the class “negotiated” individually with defendants for garbage collection services, but they merely engaged and contracted with them pursuant to the license agreement and under the terms thereof. The basic legal issue is the same for each member of the class, that is, whether defendants are entitled to demand, collect or retain payments for services they allegedly did not perform.

Third, it is evident that the claims of the representative parties are typical of the claims of the class; and, fourth, that the representative parties will fairly and adequately protect the interests of the class.

In addition to the prerequisites of B. 4:32-1 (a) discussed above, a class action is maintainable only if one of the additional requirements of B. 4:32-l(b) is met. Since only subsection (b) (3) is applicable to this case, the court must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. It is apparent from the number of potential litigants that a single class action would be a superior form of litigation to the multiple small claims action to which the members of the proposed class would be relegated.

Additionally, a class action would not tend to discourage an adjudication as to the members’ rights by fractionalizing their claims to a point which would make individual litigation impracticable. See Eisen v. Carlisle & Jacquelin, 391 F. 2d 555, 560 (2 Cir. 1968). Although the computation of damages among the members of the class would differ, this factor alone is not sufficient in itself to justify dismissal of a class action. Id. at 566. Nor is such dismissal warranted because there may be or are a number of individual agreements that were not breached by defendants.

Einally, the underlying contractual claims of the members being the foundation of this action, questions of law or fact relating thereto predominate over any other claims advanced by individual segments of the proposed class or the tort claims of the sub-class or classes in the second, third and fourth counts of the complaint. Then, too, if any class members seek compensation for items of special damage or damages in tort, they will, of course, be required to prove such damages, such procedure being contemplated by R. 4:32~2(d).

The class action rule should be liberally construed, and such an action should be permitted unless there is a clear showing that it is inappropriate or improper. See Comment to R. 4:32: Eisen v. Carlisle & Jacquelin, supra. In re Antibiotic Antitrust Actions, 333 F. Supp. 267 (S. D. N. Y. 1971); American Trading Production Corp. v. Fischbach & Moore, Inc., 47 F. R. D. 155 (N. D. E. D. 111. 1969); Bugler v. Romain, 58 N. J. 522 (1971) ; Crescent Park Tenants Ass'n. v. Realty Equity Corp., 58 N. J. 98 (1971). No such showing has been made herein.

The order below denying maintenance of this action as a class action is reversed, and the matter is remanded for further proceedings as a class action in accordance with the Rules.


author: Pee Curiam.

text:
    LILLIAN HUGHES, COMPLAINANT-RESPONDENT, v. CYPRESS GARDEN APARTMENTS, INC., A NEW JERSEY CORPORATION; SAMUEL SCHWARZ; HARRY WILF; JOSEPH WILF, AND MRS. FRANCES DEVICO, RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted February 8, 1972
    Decided February 29, 1972.

      Before Judges Lewis, Halpeeh and Loea.

      Messrs. Pollack and Marlcson, attorneys for appellants {Mr. Aldan O. Marlcson, of counsel and on the brief).

      Mr. George P. Kugler, Jr., Attorney General of New Jersey, attorney for respondent {Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Roger L. Hillman, Deputy Attorney General, on the brief).
   Pee Curiam.

Lillian Hughes filed a complaint on June 4, 1969 with the New Jersey Division of Civil Bights, charging that, on March 22, 1969, one Devico, agent of respondent Cypress Garden Apartments, Inc. (Cypress) denied her, because of race, the same opportunity to rent an available apartment as was given to other people. She alleged a violation of the New Jersey Law Against Discrimination.

The Director of the Division, pursuant to N. J. S. A. 10:5-14, filed a notice of a determination on June 16, 19C9, that probable cause existed for crediting the allegations of the complaint and scheduled a conciliation conference for July 1, 1969. The notice stated:

If this Conciliation Conference does not result in a satisfactory agreement for settling the issues involved in the complaint, a Public Hearing will be scheduled to be held no later than 20 days after the date of the Conciliation Conference * * *.

Approximately 11 months later (May 28, 1970) Cypress received notice that it was required to answer the charges of complainant at a hearing set for June 29, 1970. At that hearing it moved to dismiss the complaint because a hearing had not been scheduled within 20 days following the conciliation conference and it was therefore prejudiced by the delay and inaction of the Division. The hearing examiner reserved decision on the motion, proceeded to take evidence, and approximately ten months thereafter (April 13, 1971) filed recommended findings of fact and conclusions of law. He found that complainant had proved discrimination on the part of Cypress. Objections to the examiner’s report were filed and, on May 26, 1971, the Director of the Division determined that the Division’s rules of- practice and procedure are directory and not mandatory and that the evidence supported a finding of discrimination based on race in violation of the law.. Cypress appealed.

We note that when the hearing examiner asked counsel for respondents whether he had requested a hearing at any time he responded:

We under that the matter was disposed of following the Conciliation Conference. At that time the agent came out and inspected the books and records of the company, and he indicated they were satisfied at the time that there was no further need for action, and I personally closed my file at that point.

Nothing in the record suggests that this assumption by counsel, that the matter was satisfactority settled at the conciliation conference, was unreasonable. See Park Ridge v. Salimone, 21 N. J. 28, 49-50 (1956).

N. J. A. C. 13 :4r-32 provides, in pertinent part, that. “hearings shall be scheduled no later than 20 days after the date of the Conciliation Conference.” That rule should be read in pari materia with N. J. A. C. 13:4-2, 30 and 37. In the circumstances it is unnecessary for purposes of this opinion to decide whether the 20-day period in N. J. A. C. 13:4-32 is directory or mandatory.

The record supports the uneontradicted claim of Cypress that it was seriously prejudiced by the inordinate delay of the Division in notifying respondents that a hearing would be held.

A resolution of critical fact issues in this type of proceeding should not have to rest on conflicting testimony where memories are rendered hazy and murky by the passage of time and events.

Reversed.

      We note, however, that even, the strictest possible construction of the pertinent rules would not result in a rigid requirement that every hearing be held within 20 days of an unsuccessful conciliation conference. The riiles provide that the Director, after having scheduled a hearing, may adjourn it and, after having notified all interested parties of the adjournment, may reschedule a new hearing at any time. The rules also provide that the Director may, after notifying all parties and in the interest of justice, relax the application of the rules. The significance of the Director’s exercise of these powers is that the party who will or may someday be called to answer charges at a hearing is notified promptly of that fact. In this way necessary administrative flexibility is preserved without sacrifice of anyone’s right to due process of law.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DANIEL ROBERT THOMAS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1972
    Decided March 1, 1972.

      Before Judges Sullivan, Leonaed and Caeton.

      Mr. Morton L. Anelcstein, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Alex Eber, Deputy Public Defender, of counsel; Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Terry Philip Green, Assistant Proseeutor, argued the cause for respondent (Mr. John S. Kuhlthau, Middlesex County Prosecutor, attorney).
   Per Curiam.

Defendant sold three packets of heroin to a 21-year-old drug user. After making the sale he warned the purchaser that the stuff was good, “not to do too much.” Thereafter, the user administered almost two packets of the drug to himself and died as a result. The autopsy report was to the effect that the death was the result of an overdose.

Defendant was indicted on charges of unlawful possession of heroin, unlawful sale thereof, and manslaughter. He was convicted of all three charges and sentenced to three indeterminate terms at the New Jersey Reformatory, to be served concurrently. His basic contention on appeal is that he cannot be held criminally responsible for the user’s death which defendant asserts was caused by the user’s intervening and voluntary act of administering an overdose of the drug to himself.

There are few precedents in this area,. In California sellers or furnishers of drugs have been convicted of felony murder where the user died from an overdose of the drug. In such cases it has been held that the acts of the decedent in administering the drug to himself did not constitute an independent intervening cause. However, in New York a trial court has ruled that a seller of drugs may not be held criminally liable for the user’s death under New York homicide statutes. People v. Pinckney, 65 Misc. 2d 265, 317 N. Y. S. 2d 416 (Cty. Ct. 1971). Some discussion of the problem is contained in an Annotation “Homicide: Criminal Liability for Death Resulting from Unlawfully Furnishing Intoxicating Liquor or Drugs to Another,” 32 A. L. B. 3d 589 (1970).

We conclude that the State’s proofs were sufficient to establish a prima facie case of manslaughter. Not only did the State establish the fact of defendant’s unlawful sale of heroin, but it also produced evidence that heroin is classified as an inherently dangerous substance capable of causing death. The toxologist who appeared for the State testified that heroin is one of the more poisonous derivatives of morphine. “It takes very little to give a reaction to a person and it doesn’t take an awful lot more to bring about their death.” The medical examiner who performed the autopsy on the body of the user and who fixed the cause of death as an accidental overdose of heroin, testified that in his experience death due to heroin overdose was not uncommon and was becoming more common each year. Defendant was himself a heroin user.

We are satisfied that there can be imputed to defendant either knowledge or reckless disregard of the consequence of his act, and that the jury could have reasonably found from the proofs that beyond a reasonable doubt the regular, natural and likely consequence of the sale of heroin was the user’s death. .

The act of the user in administering the drug to himself we consider at most to be a concurrent rather than- an independent intervening cause. Moreover, defendant was a user as well as a seller of heroin. He must have been aware of an addict’s unreasoned craving for the drug. We conclude that the homicide issue was properly submitted to the jury.

Defendant also argues that if his conviction of manslaughter is upheld, he cannot also be convicted of the sale of heroin since the sale was a constituent element of the manslaughter.

This contention has merit. The unlawful sale of heroin, while a crime in itself, was an essential element of the manslaughter and must therefore be considered an included offense. See Tentative Draft New Jersey Penal Code, § 2C:l-7 and Commentary. Defendant may not be convicted of more than one of these offenses. Cf. State v. Mowser, 92 N. J. L. 474 (E. & A. 1919); State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833). Accordingly, the conviction of unlawful sale of heroin including sentence is hereby vacated. The balance of the judgment of conviction is affirmed.


text:
    GUSTAVO CARDONA, PLAINTIFF-APPELLANT, v. EDEN REALTY COMPANY, INC., A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Submitted February 8, 1972
    Decided February 23, 1972.

      Before Judges Lewis, Halpeen and Lora.

      Mr. Allen Zavodnich, attorney for appellant (Mr. Leonard A. Wollcstein, on the brief).

      Mr. Sydney I. Turin, attorney for respondent.
   Per Curiam.

Plaintiff Gustavo Cardona, a tenant in a tenement house owned by defendant Eden Realty Company, Inc., was injured as a result of a fall allegedly caused by a loose metal nosing on a stair of the common stairway located in said building. His suit for damages asserts negligent maintenance of the stairway and maintenance of a nuisance. The court granted defendant’s motion for summary judgment upon the basis that the lease signed by the parties exculpated defendant from responsibility.

The rental agreement, which was typed in both English and Spanish, provided for a month-to-month tenancy at the rate of $52 a month. It required the tenant to furnish his own painting, stove, heat, heating equipment, hot water, refrigerator, shades, screens, storm windows, toilet seat, door locks, and all fixtures needed in the occupation of the premises.

The lease contained an exculpatory clause which recited that in consideration of the reduced rental provided for, the tenant covenanted not to sue the landlord and the landlord would not be liable to the tenant for any damage, loss or injury to property or person by reason of any existing or future defect in the premises, including acts, omissions, negligence or nuisance of other persons or tenants or of the landlord or his agent, and including that arising from falling plaster, leaking roofs — or faulty or inadequately lighted or repaired sidewalks, stairs, halls, alleys, yards or cellars.

In addition to this purported exculpation of defendant from its acts of negligence, the lease also contained a novel provision in which the landlord recited that it had no public liability insurance and if the tenant desired to eliminate the exculpatory clause, written notice thereof should be given the landlord, in which event the rent would be increased $2 a month. The agreement went on to say that following termination of the exculpatory clause by the tenant, the landlord’s liability “shall be that provided by the general laws of the State. The landlord shall not become an insurer by virtue of such termination.”

The lower court concluded that this so-called option provision, coupled with the consideration received by the tenant for the exculpatory clause in the form of a reduced rental, removed defendant from the line of cases, and more particularly Kuzmiak v. Brookchester, 22 N. J. Super. 575 (App. Div. 1955), holding that it is against public policy for a landlord to exculpate himself from his own acts of negligence when dealing with residential properties since the parties are in an unequal bargaining position. It found that this distinguishing feature vitiated the unequal bargaining position philosophy of Kuzmiale.

We are uninformed as to the circumstances under which the lease was signed, except that the record indicates the tenant was not represented by counsel and that the landlord’s manager was an attorney. However, the lease in its entirety reveals that the landlord vras in an eminently superior bargaining position. The lease included provisions which clearly support this conclusion: no interest was to be paid on security deposits; the tenant (as well as the landlord) waived trial by jury in any action brought by either against the other on any matters arising out of or in any way connected with the tenant’s use or occupancy of the premises or the common stairways, halls, sidewalks, etc.; the tenant waived any exemptions the law gave him on a distress for nonpayment of rent, and the lease attempted to release defendant from the responsibility of ■ maintaining the building in good repair, contrary to N. J. 8. A. 55 :13A-1 et seq.

While it is conceivable that even in some noncommercial transactions a landlord and tenant might properly negotiate a lease to rent property “as is” and in consideration of a reduced rental the tenant assume all liability for repairs and insurance coverage, it is clear that in this multiple-tenant tenement house lease, the provisions thereof were oppressively for the benefit of the landlord and against public policy.

The tenant’s option as to the landlord’s liability did not convert their obviously unequal bargaining positions into equal positions, and the exculpatory agreement, despite the method made available to remove it, is against public policy and should not be enforced. See Mayfair Fabrics v. Henley, 48 N. J. 483 (1967). The lease represents a legalistic effort to circumvent the positive public policy of this State, and the clauses in issue must be held to be invalid.

The summary judgment in favor of defendant dismissing the complaint is reversed and the matter remanded for trial on the merits.


author: Fritz, J. A. D.

text:
    FRANK W. HARRIS, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY; WARREN PINTO, SUPERINTENDENT OF THE NEW JERSEY STATE PRISON AT RAHWAY, NEW JERSEY; THOMAS OLDEN AND JOHN RAFFERTY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted November 1, 1971
    Decided March 1, 1972.

      Before Judges Coheord, Matthews and Fritz.

      Messrs. Edelstein & Edelstein, attorneys for appellant (Mr. Benjamin Edelstein, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondents (Mr. Stephen SMllman, Assistant Attorney General, of counsel; Mr. Daly D. E. Temchine, Deputy Attorney General on the brief).
   The opinion of the conrt was delivered by

Fritz, J. A. D.

Plaintiff was a prisoner confined in maximum security detention at Rahway State Prison when he was assaulted in his cell by a fellow prisoner and badly injured. He sues the State of Now Jersey and the individual defendants on the theory that they were negligent in their respective duties to prevent others from injuring him and in their failure to exercise the required care in “the hiring and! supervision of proper and competent help” proximately resulting, he claims, in these injuries. Defendant Pinto is the-superintendent, Olden the deputy keeper, and Rafferty the wing keeper of the prison wing involved. Summary judgment in favor of defendants was entered on motion before trial, and plaintiff appeals.

All parties were deposed and certain other documentary evidence was available to the trial judge at the time of the motion. Giving plaintiff the benefit of the doubt with respect to the facts and allowing him all reasonable inferences, as we must for the purposes of a motion for summary judgment, we find the facts to be as follows.

On the morning of April 6, 1967 plaintiff returned to his,-cell from mess. Another prisoner, who had previously solicited plaintiff's participation in sexual activities and was; refused, had gained access to plaintiff's cell, was lying in-wait, and with tile use of a reamer apparently appropriated!, from the machine shop where the assailant worked, inflicted' serious injuries upon plaintiff. While plaintiff and assailant were domiciled in the same wing, plaintiff's cell was on the-fourth tier and the assailant’s cell was on the second tier. Visiting between tiers is forbidden. An inmate may go to a location different from one at which he belongs only upon the issuance of a pass for a legitimate reason. In this respect, the following instructions are abstracted from the Manual of Operations and Procedures promulgated by the Division of Correction and Parole of the Department of Institutions and Agencies for the New Jersey State Prison at Rahway.

Counts are a continuous process in a maximum security institution, and officers are expected to be aware of who and what groups are in their cells, and where they should he if out of their cells. This awareness should be with him at all times.
:fs * ¡'ft * *
Inmates are not to be permitted to visit from cell to cell, tier to tier, or wing to wing. If an inmate has a problem that makes it necessary for him to see or talk to another inmate, locking in a different location, and if, in the officer’s opinion, his request warrants • immediate attention, the officer will advise the Center Keeper. If the Center Keeper approves, both inmates will be brought together in the Center.

The rules are also illuminative with regard to the weapon which was used:

A record will be kept of all tools in the shop and the NAME and NUMBER of the inmates using a certain tool will be listed. The inmate will be held responsible for the tool issued to him until he returns same at the end of the working period — or whenever it is necessary for him to leave the shop. If a tool discrepancy is discovered, shop instructor or officer shall immediately contact the Shop Marshall. Tools will be issued ONLY to inmates who are approved to use such tools.
;j< # * s;s *
Upon completion of the morning and afternoon work periods, after all tools have been checked in and found to be correct, the instructor or officer will answer the bell from the Center with one ring, signifying the return of the inmates to the housing units.

In addition to regulation by procedures set up to prevent the presence of inmates in cells or tiers in which they do not belong, deposition testimony of the individual defendants acknowledged a responsibility for the safety, care and custody of the inmates. Superintendent Pinto testified, for instance, that “escorts” shepherding the prisoners from place to place .within the prison walls should be aware of where the prisoners’ cells are, at least as far as the housing unit’s escorts are concerned. The superintendent expressed the hope that the keeper at the resident location would know the inmates, but added that he could not be certain of this “because we have new officers from time to time who naturally would not know the inmates, unfortunately.” It would appear that Rafferty, responsible for the wing involved at the time of this incident, was a relief man and not there on permanent assignment. He knew plaintiff by sight. He did not know the assailant. He did not see the assailant go into plaintiff’s cell.

Deputy keeper Olden testified to an assumption that “all of the inmates in a maximum security institution were somewhat emotionally disturbed or somewhat had a pension [sic; penchant] for, let’s say, psychopathic activity.” We observe in passing that the presence of homosexuality in the prisons of this country, more often than not with concomitant violence, is brought to our attention too often to be either ignored or disparaged.

There is no evidence suggesting that the assailant was particularly known to be of a violent nature, nor is there any evidence that defendants knew or had reason to know of the prior relationship, adverted to above, between plaintiff and the assailant.

At the outset we affirm the judgment in favor of the State of New Jersey on the ground of sovereign immunity. Abrogation of that doctrine in Willis v. Dept, of Conservation and Economic Development, 55 N. J. 534 (1970), was held to be not retroactive absent legislative fiat, and was conditioned by a moratory period to enable the Legislature to act. See N. J. S. A. 52:4A — 1 as amended by L. 1971, c. 187.

Plaintiff argues that allowance of the Willis claim in a determination that rejects others similarly situated deprives him of the constitutionally safeguarded equal protection of the laws. The short answer to this contention is to be found in Willis where, at 55 N. J. 541, the court refuses retroactive application and rejects “'other claims in being,” but permits Willis to proceed “* * * for the practical reason that case law is not likely to keep up with the needs of society if the litigant who successfully champions a cause is left only -with that distinction.” Incentive “to challenge existing practices or prior holdings which, in the public interest, ought to be reviewed,” reasonably justifies disparity of treatment. Goldberg v. Traver, 52 N. J. 344, 347 (1968); cf. N. J. Chapter, Am. I. of P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 601 (1967), app. dism. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967).

The individual defendants concede that they are not so insulated against tort claims and that they can be held liable for the negligent performance of their duties. Prior to Willis, supra, at least, this latter statement might not have been so clear as a general proposition of law relating to public servants, in light of such authority as Czyzewski v. Schwartz, 110 N. J. Super. 255 (App. Div. 1970). We accept defendants’ concession on the basis that here, as in Kisielewski v. State, 68 N. J. Super. 258 (App. Div. 1961), cert, den. 36 N. J. 144 (1961), the charges of negligence are in any event in such broad terms as to frustrate a defense predicated upon the discretionary-ministerial dichotomy examined in Gzyzewshi, at least as a basis for summary judgment. As is pointed out in Jackson v. Muhlenberg Hospital, 53 N. J. 138 (1969), a maximum of caution is required in the grant of summary judgment where a ruling would reach far beyond the particular case.

While an absence of conclusions by the trial judge, beyond the statement that “There is no negligence of any kind shown insofar as they [the individual defendants] are concerned * * deprives us of knowing the basis for his holding, it would appear from his adoption of defendants’ brief (with which we were not furnished) as “my opinion” that he was persuaded by the principal argument of defendants here to the effect that a jailer is not liable in the absence of a showing that he had reason to anticipate the particular violence which in fact occurred and failed to prevent it. Although defendants formulate the argument in terms of foreseeability — a criterion acceptable to us ■— they really urge the imposition of an actual notice doctrine.

Although authority exists which appears to suggest this proposition, e. g., Muniz v. United States, 280 F. Supp. 542 (S. D. N. Y. 1968) (for a collection of the cases and various views see Annotation, “Liability of Prison Authorities for Injury to Prisoner Directly Caused by Assault by Other Prisoner,” 41 A. L. R. 3d 1021), we think that such an abridgement of ordinary negligence principles, requiring foreseeability of the precise altercation or at least a propensity in the particular assailant, is too confining. We do not disagree with the statement from Muniz v. United States, supra, 280 F. Supp. at 54?, that “The common law imposes upon a sheriff (or warden) the duty to exercise reasonable care and diligence to protect the prisoner from danger, known to or which might reasonably be apprehended by him.” Our disagreement with Muniz arises from our conviction that in the present climate of prison unrest and inherent sociological problems, including the now recognized psychological difficulties produced by the unavailability of ordinary sexual activity, the potential for violence ought to be anticipated as a not unusual thing without the requirement of the demonstration of any particular propensity in any particular prisoner. The record in this case illustrates the soundness of this philosophy in the testimony of the deputy keeper, who volunteered an assumption (by which, as he said, “we must work”) that all inmates in a maximum security institution were somewhat emotionally disturbed or had a penchant for psychopathic activity.

We do not mean to be understood to say that extraordinary foresight or exceptional preventive means must be employed to escape liability. Much less do we suggest strict liability. We do hold that it is unnecessary for a plaintiff, situated as is plaintiff here, to demonstrate a known propensity for violence in another prisoner in order to recover. The duty of care thus imposed upon the jailer is simply the duty of care ordinarily formulated in negligence questions: a duty to employ the care of a reasonable and prudent person in the protection of prisoners against reasonably foreseeable risks generally. Such risks may well include the possibility of an eruption of the inherent potential for violence said by the deputy keeper in this case, implicitly at least, to be present in every prison in the maximum security situation. We repeat for purposes of emphasis that our recognition of prison problems is not intended nor should it be deemed to impose any greater duty upon prison keepers than that of reasonableness as that word is defined in conventional negligence law.

Ordinarily a determination of the issues thereby presented will be one for a jury. In the instant case, where the rules and regulations of the prison provided for procedures to prevent the appropriation of incipient weapons from the tool shop and where the superintendent testified to the desirability that the “man at the location” know the inmates within his domain, we have no doubt that fact questions were presented requiring jury determination, despite the lack of disagreement as to the events themselves.

As against an anticipated suggestion that such a rule might “open the flood gates,” we observe that if the incidence of prisoner injury is so great factually as to undergird that fear, this is another reason for a tightening up of the standard of care required by those who supervise our prisons.

Defendant’s contention, appearing on the coattails of their principal argument, that plaintiff should be barred, in any event, by his own contributory negligence, by virtue of his failing to inform the prison authorities of difficulties he was having with his assailant or even seeking assistance within the inmate population, is of no avail here. Such asserted contributory negligence obviously presents questions of fact which are also for a jury’s determination.

Accordingly, we must reverse the court below and remand for a plenary trial as to the individual defendants. Although probably unnecessary, we note that defendants may, of course, contest at trial any factual conclusion which for the purposes of this appeal from the grant of summary judgment on motion we were obliged to assume to be true.

Reversed and remanded.

      the fact finding- task has been imposed upon us by the failure of the trial judge lo make any findings of fact. See R. 1:7-4, made applicable by R. 4:46-2.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MICHAEL J. STAVOLA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 23, 1972
    Decided March 8, 1972.

      Before Judges Lewis, Halpern and Lora.

      Mr. Edward Boy Bosen, Assistant Prosecutor, argued the cause for appellant (Mr. Vincent P. Keuper, Monmouth County Prosecutor, Attorney).

      Mr. Justin P. Walder argued the cause for respondent (Messrs. Schaipira, Steiner and Walder, Attorneys; Mr. Jeffrey Barton Cahn, on the brief).
   Per Curiam.

The State appeals from an order dismissing the two-count indictment against defendant charging him with (1) assaulting a police officer while in uniform and (2) hindering and interfering with a policeman.

The case arises out of an altercation between defendant and a police officer who had stopped a motor vehicle of a third party for a routine check. Defendant was arrested and held on bail for grand jury action. Subsequently defendant filed a complaint against the police officer charging him with assault and battery. He was represented by counsel in the municipal court and throughout the entire proceedings.

About a year after the occurrence involved, defendant, withont being subpoenaed, appeared before the grand jury to give his version of the incident. No waiver of immunity was requested nor was one signed by defendant. It is clear that his appearance before the grand jury was not only a voluntary one but was arranged for at the request of his then counsel.

After the grand jury had heard the testimony of the State’s witnesses, defendant came into the grand jury room and the following questions were answered by him:

Q Sir. Stavola, you have a lawyer; haven’t you?
A Yes, sir.
Q Did he explain to you that you do not have to testify before the Grand Jury ?
A That I don’t?
Q Yes, did he tell you that?
A Yes.
Q That you can not bo compelled to testify. If you want to, all well and good, but you have the Constitutional right not to testify. Are you willing to waive your right, and tell your story?
A Yes, sir.
Q What happened on the night of October 27th, 1969; are you willing to tell the Grand Jury what happened concerning the altercation you had?
A Yes, sir.

Defendant then gave his version of the encounter with the police officer and his testimony was concluded with the following question by the prosecutor to the grand jurors:

Anything else that you want to ask Mr. Stavola?
(No response.)
The Witness: I would be glad to answer any more questions. Mr. Keuper: Apparently there are no other questions. (Witness excused.)

Thereafter a motion was filed to dismiss the indictment on the grounds that defendant’s constitutional rights before the grand jury had been violated. The court below, in dismissing the indictment, held defendant was the “target” of the grand jury investigation and, as such, should have been given full Miranda warnings; that the questions and answers set forth above did not adequately inform defendant of his constitutional rights.

Defendant counters the State’s appeal with the contention that there can be no doubt he was a “target” before the grand jury and hence his constitutional rights, pursuant to the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, paragraph I of the New Jersey Constitution and the provisions of N. J. S. A. 2A:84A~17, were violated and as a result thereof the indictment was properly dismissed. He argues further that at no time was he warned or apprised as to the subject matter of the grand jury’s investigation, his right to have counsel available to consult with at any time, that any statement he gave could be used against him, that he had the right to remain silent without suffering any penalty, and that he was not aware he had any of said rights before the grand jury.

Several New Jersey cases have explored the evolving panoply of rights to be accorded a target before the grand jury. See e. g., State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967); State v. Browning, 19 N. J. 424, 427 (1955) ; State v. Fary, 19 N. J. 431 (1957); State v. DeCola, 33 N. J. 335, 342 (1960), and State v. Sibilia, 88 N. J. Super. 546, 548-549 (Cty. Ct. 1965).

However, as stated above, the record supports our conclusion that defendant’s counsel arranged with the prosecutor for defendant’s voluntary appearance before the grand jury. His appearance, under the circumstances, constituted an effective waiver even though no signed waiver was obtained from him.

We are satisfied that when a prospective defendant is represented by counsel who requests permission for his client to appear before the grand jury, Miranda does not apply even though counsel was not present nor readily available to be consulted during such interrogation. The philosophy of Miranda is to protect one from custodial interrogation without being first fully advised of his constitutional rights. We cannot conceive that Miranda is applicable to a case with a factual complex such as is here involved. Cf. State v. Williams, 59 N. J. 493 (1971).

It is our conclusion that defendant effectively waived his rights when he requested to voluntarily appear before the grand jury to relate his side of the story.

The order dismissing the indictment is reversed.