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

text:
    JANE PANKIEWICZ, PETITIONER-RESPONDENT, v. NEW JERSEY BELL TELEPHONE CO., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 8,1968
    Decided November 14, 1968.
    Gaulkin, S. J. A. D. dissented.
    Before Judges G-aulicin, Collester and Labrecque.

      Mr. Andrew Lawrie argued the cause for appellant (Messrs. Lawrie and Jennings, attorneys).

      Mr. Robert A. Shaw argued the cause for respondent [Messrs. O’Brien, Devlin & Shaw, attorneys).
   Per Curiam.

In this proceeding for workmen’s com-

pensation death benefits, which resulted from the death of petitioner’s husband by heart attack, both the judge of compensation and the County Court judge in a 'de novo review, found that decedent’s death was causally related to his work effort. We conclude that the findings of the County Court could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965).

Affirmed.

Gaulkin, S. J. A. D.

(dissenting) : In Schiffres v. Kittatinny Lodge, Inc., 39 N. J. 139, 152 (1963) the Supreme Court said:

“Let us suggest the problem which concerns a court composed of laymen, not physicians. Pacts must be found in the record (as distinguished from mere conclusory statements) which will demonstrate to the inquiring and reasoning judicial mind that the relation of cause and effect existed * * *. And that conclusion can be accepted only if the facts proved and inferences from them are sufficiently credible and convincing as to outweigh incompatible facts or inferences.”

This standard has not been changed by Close v. Kordulak Bros., 44 N. J. 589 (1965). The only effect of Close v. Kordulalc Bros, is that the Appellate Division no longer makes these findings itself but determines whether the findings made by the County Court “ ‘could reasonably have been reached on sufficient credible evidence present in the record’ considering ‘the proofs as a whole’ with due regard to the opportunity of the one who heard the witnesses to judge of their credibility * * Close, p. 599. In my opinion, here the findings of the County Court are not based on facts but upon mere conclusory statements which cannot support an award.

The opportunity of the Judge of Compensation to hear the witnesses is of no importance in the case at bar. The testimony of the lay witnesses was substantially undisputed and the veracity of the medical witnesses is not challenged. The ease resolved itself into a battle of experts —• Dr. Bow-land D. Goodman for petitioner and Dr. Jerome Kaufman for respondent, neither of whom had known decedent during his lifetime.

It seems to me that Dr. Goodman’s opinion that decedent’s work contributed to his death was a mere conclusion, not supported by the “facts proved and inferences from them * * The sum of his testimony appears to me to be that (1) decedent died during working hours of a coronary occlusion (2) the work he had been doing that morning could not have caused his death that day unless he had had an underlying serious coronary artery disease — what he called “an impending myocardial infarction”; therefore (3) he must have had the impending myocardial infarction; (4) since he had the “impending myocardial infarction,” the work he did that morning was sufficient to cause his death that day. It seems to me that such circular reasoning should not be accepted as the basis for an award. If it must be, I cannot see how an award can be denied to any manual worker who dies during working hours.

There was no autopsy. Defendant was never treated for a heart condition nor told he had one. He appeared to be in good health until December 26, 1963, two months before he died. On December 26, 1963, while attending a funeral, he was sick to his stomach, pale and drawn. Petitioner’s own brief describes his health thereafter as follows: “During the month of January of 1964, the decedent’s widow, or other members of his family did not notice anything significant one way or the other regarding decedent’s health. On February 7, 1964, the decedent’s widow noticed further changes in the decedent’s health. On this date, he appeared pale, and had a drawn look. Decedent did not go to work, but stayed home in bed on that date. His stomach was upset, and he was taking pills that he received from Bell Telephone Company, which pills were labeled ‘Digestive Compound Tablets for relief of stomach upset, heartburn or mild diarrhea’. Subsequent to February 7, 1964, the decedent returned to work. On or about February 18, 1964, he came home from work about 9:30 A. m. The decedent’s widow, on that day, noticed that he was ^breathing funny’. He did not feel good. He looked as if he needed a shave, but upon closer examination by decedent’s widow, he just appeared gray, and did not need a shave. On this day, the decedent attempted to take a ride in the car, and went to a shopping center, but because of how he felt, did not go in, but returned home. The decedent’s son, Daniel Pankiewicz, testified that during the month of February, decedent appeared tired all of the time and that this increased in frequence. On the date of his death, the decedent was first noticed by his son, Joseph Pankiewicz, at about 7:00 or 7:30 in the morning. The decedent appeared pale.”

Dr. Goodman testified that he concluded from the foregoing that decedent had “impending myocardial infarction” because of the above described “symptoms of sickness to the stomach, appearing gray, shortness of breath * * But on cross-examination he testified:

“Q Those facts [as to his December 26 symptoms] in and of themselves are not sufficient for you to determine any diagnosis, are they?

A That is correct.

Q Those symptoms doctor are symptoms of many ailments, aren’t they?

A Yes, they are.

Q For instance, this man could have had what is commonly known as a stomach virus, isn’t that so?

A Yes, he could have.

Q He could have what is commonly known as a cold, couldn’t he?

A Yes.

Q The same is true of the symptoms that were given to you as his condition of December 27, 1963, isn’t that true?

A Yes.

Q The same is true of the symptoms that you were advised he had on February 7th, 1964?

A No, sir.

Q What is there about those symptoms of February 7, 1964, that make you say they’re different?

A I was told on February 7, 1964, that he for the first time manifested shortness of breath and that is a symptom that is particularly cardiac in origin and not associated with the simple upset stomach, common cold and et cetera.

Q They could also be symptoms of respiratory or pulmonary disorders, could it not?

A Yes. In those occasions it would be accompanied by wheezing or something that would suggest a respiratory infection.

Q You weren’t told anjrthing other than those symptoms given to you in hypothetical question; is that so?

A That is correct.

Q You cannot make a diagnosis of what this man had on February 7th, merely on those symptoms; is that right?

A I don’t believe I made a diagnosis. The cause [course?] of illness made me believe that this first began and manifested itself as coronary artery disease as early as December 26, 1963. Certainly sometime in February 1964—this of course is a medical theory based most probably on the course of events in this case.

Q However, you will agree, will you not, that not having seen the man at those times, it’s speculation on your part as to whether that is evidence of coronary disease?

A What the term speculation means to me is, guessing, I don’t feel that I am guessing. The description of the coy/rse of events that occurred to this individual I believe mas given in the most probable medical course.

Q If these facts were furnished you in all and I was to ask your opinion of what the man’s disease was at that time, you would refuse to give an answer; would you not?

A With or mithout the subsequent coronary?

Q If you were asked on February 7th what this man had, you would refuse to give an answer?

* * * * * * * *

A Of course, based on the symptoms of the person’s grayness and the shortness of breath on exertion, I could not come up with a diagnosis.” (Emphasis added)

On direct examination, Dr. Goodman had given a description of the mechanics by which, in his opinion, decedent’s work effort “aggravated and accelerated” his condition and brought about his death. He said:

“There is no doubt in my mind that the work effort or strain described to me was of sufficient degree to produce the physiologic event namely, the increased pulse, increased pressure and heart rate to produce the physiological process described. When these events occur in the individual, there are certain symptoms, such as severe chest pain, shortness of breath, feelings of general illness, which we call malaise, fallen blood pressure or shock and congestive failure.”

However, on cross-examination he admitted that the hypothetical question on which he based his opinion contained no reference to any manifestation of such symptoms on the day decedent died. As a matter of fact, there was no evidence that decedent did exhibit any such symptoms. On the contrary, the co-worker who was with him at all times observed nothing wrong with decedent before the moment of his collapse, and decedent made no complaint. Furthermore, about a half hour after he finished the work which allegedly brought on the coronary occlusion, and while (according to Dr. Goodman) he was in the throes of the attack brought on by that work, decedent jogged to his truck to get his lunch and jogged hack to join his co-worker! If the work had the effect which Dr. Goodman said decedent must have felt but concealed — “severe chest pain, shortness of breath, feelings of general illness * * *” —• it is inconceivable to me that decedent would have jogged to his truck, gotten his lunch, and jogged back. (He died shortly thereafter.) One would expect him to have walked slowly or, indeed, to have passed up his lunch altogether.

The work that decedent did the morning he died was not unusual for him, nor so heavy that it would have injured a worker of even modest health and strength — in short, the average man. As I said, if Dr. Goodman’s circular reasoning be accepted, the death of every manual worker who dies during working hours for no apparent reason will have to be compensated. I have no objection to having the deaths of all employees, however caused, compensated, but that is a matter for direct action by the Legislature. So long as that is not yet the law, Murch v. Larkey Co., 48 N. J. 388 (1967), we should enforce the law as it is.

The telephone company says that it has about 25,000 manual workers; that, since many people die of heart attacks even while at rest, by the law of averages many of its workers will die at work; and it asks whether all of these deaths must hereafter be paid for by it. The company points out that, although the courts have held some such deaths not compensable, the cases have provided no useable formula by which an employer can determine which deaths it should pay for without litigation. The company asks us to compose a more workable rule than now exists, one by which it will be able at least to determine which heart deaths are probably not compensable. If there were such a rule, says the company, it would pay the others without the endless and unsatisfactory litigation to which it must now resort.

It is probably true that no such rule exists at present, but if one is to be formulated to govern future cases I think the Supreme Court must do it. However, here I think we should say that circular reasoning such as Dr. Goodman’s does not prove compensability.

I would reverse.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE C. RILEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 3,1968
    Decided June 17, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Joseph N. Dempsey argued the cause for appellant.

      Mr. Thomas L. Yaccarino, Assistant Prosecutor, argued the cause for respondent {Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   Per Curiam.

Following a jury trial defendant was convicted on four counts of a six-count indictment. More specifically, he was found guilty of having twice raped one Cynthia Lee Larimer, N. J. S. 2A: 138-1, unlawful use of a dangerous weapon against that person, N. J. S. 2A :151-56, and unlawful use of a dangerous weapon against Barry D. Zall. He appeals.

Initially, defendant argues that an incriminatory statement made by him should not have been admitted for lack of proof of voluntariness. This contention derives from defendant’s thesis that he was not given the four-fold warnings required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), before Ms statement was taken. Hence, argues defendant, it was not voluntary.

When the issue of voluntariness was raised at the trial the court properly conducted a hearing out of the presence of the jury. The testimony then offered by the State, and not contradicted, clearly established that the Miranda warnings were plainly given and that defendant understandingly waived the rights which he is accorded under Miranda. The trial court so held.

Defendant’s second point is that his arrest and the search of his automobile were illegal because they resulted from a wiretap. In the course of investigating a series of rapes in Monmouth County, Detective Scott of the Eed Bank Police Department tapped the telephone of one of the rape victims Miss Tomiano who, following the rape, had received telephone calls from the rapist. The tap was made with the victim’s knowledge and consent. By monitoring this girl’s calls, when the rapist telephoned on March 30, 1965, Detective Scott, with the assistance of a telephone company employee, was able to ascertain the location of the phone station from which the call was being made. Detective Scott also recognized the voice of the caller as that of the defendant, a person long familiar to him. Scott immediately called State Policeman King, who was stationed at the Eatontown telephone trunk station, and informed him of the location of the phone station from which the call was being made. (On a previous call from the rapist the police were able to ascertain that it came from the Eatowntown area.) King and Lt. Fowler of the Eatontown Police Department immediately went to the phone station in question and found defendant in the phone booth still talking over the telephone. No part of the telephone conversation between defendant and Miss Tomiano was offered in evidence.

Eowler advised Eiley that he was being taken into custody and Eiley is quoted as saying that he “didn’t have to answer any questions.” Defendant was taken to an area to the rear of the store where he identified an automobile as being his. The officers examined the car. They saw a ski mask laying on the floor on the passenger side. Erom the other side a double barrel shotgun was observed sticking out from under the front seat at a point somewhere in the center of the vehicle. The car was placed under guard while a search warrant was secured from the Eatontown Magistrate. Execution of this warrant yielded the following properties: (1) a hooded sweatshirt; (2) shotgun shells; (3) gloves; (4) two ski masks; (5) a woman’s slip; (6) two coverall type jackets; (7) a double barrel shotgun sawed off.

The case is readily distinguishable from Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) on which defendant relies. In Katz the receiver did not authorize the installation of the electronic listening device. Here, such authorization by the receiver was given. We find no error.

Defendant’s remaining points have been fully considered but are without substance and require no discussion.

Affirmed.


author: Pee Gueiaii.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS HORNE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 17,1969—Decided
    March 31, 1969.

      Before Judges Coneokd, Kilkenny and Leonakd.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney; Mrs. Susan T. Sinins, Assistant Deputy Public Defender, of counsel and on the brief).

      Hr. David Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Pee Gueiaii.

The disposition of the several contentions of defendant on this appeal from denial of post-conviction relief in relation to a 1964 conviction of assault with intent to rape and consequent commitment under the Sex Offender Act is as follows.

11] 1. As to the oral admissions, the voluntariness of these was not challenged by defendant at the trial either by objection addressed to that point or by testimony, although he did testify the written confession was procured by coercion.

2. As to the written confession, we find the trial judge by clear implication found the confession voluntary before submitting the issue anew to the jury. Cf. State v. LaPierre, 39 N. J. 156, 163 (1963). The trial judge was experienced and undoubtedly was aware of the New Jersey requirement of an initial finding of voluntariness by the judge — he undoubtedly abstained from statement of the finding on the record because the jury was present, having heard the proofs, as the New Jersey practice then permitted, and still does unless defendant objects. See State v. Broxton, 49 N. J. 373, 386 (1967). Defendant’s counsel made no point of an absence of such a statement, undoubtedly being satisfied the judge had so ruled implicitly. The case cannot be remanded for an express finding, as was done in State v. LaPierre, supra, because the trial judge has since retired. The fact that the hearing took place in the presence of the jury does not impair any constitutional right of the defendant, no objection having been raised at the trial. Pinto v. Pierce, 389 U. S. 31, 88 S. Ct. 192, 19 L. Ed. 2d 31 (1967).

3. The contention that the evidence did not in fact justify a finding that the confession was voluntary is without merit. In any event, the point is available only on appeal, not by post-conviction procedure. R. R. 3:10A-3.

4. The argument that the Sex Offender Act denies due process because of absence of a trial-type hearing on the diagnostic report was held without merit in our recent decision in State v. Blanford, 105 N. J. Super. 56 (App. Div. 1969).

5. The contention that defendant was denied a fair hearing in the post-conviction court because denied an adjournment to obtain witnesses is without merit. The further contention that a named witness testified at trial against him without being sworn or subjected to cross-examination is without foundation in fact.

6. Defendant contends that the report of the diagnostic center was defective in that it does not show a determination from clinical findings that the offender’s conduct was “characterized by a pattern of repetitive, compulsive behavior,” as required by N. J. S. 2A :164-5. See State v. Berrios, 91 N. J. Super. 444 (App. Div. 1966). We find substance in this complaint. While at one point the report states that “the history of unprovoked attacks suggest the possibility of repetition of such behavior,” and at another, “I consider him capable of continuing similar types of assaults,” the psychological section of the report states : “There is no indication of repetitive or compulsive sexual trends.” In terms of the statutory criterion, the report must be considered ambiguous, to say the least. The mere conclusion in the report that the defendant comes under the act will not suffice. That conclusion is not a substitute for the finding of the statutory criterion stated.

We conclude that the diagnostic center should be required now to state definitely and unqualifiedly, and on the basis of the clinical findings originally reported, whether, as of the date of the 1964 examination, defendant’s “conduct was characterized by a pattern of repetitive, compulsive behavior.” If the conclusion is in the affirmative the commitment will stand; if in the negative the defendant will be remanded for resentence in the ordinary course, attended by counsel. In our view, the clinical findings first made would be consistent with either an affirmative or negative conclusion. Defendant has already had (at sentencing) a court hearing on the adequacy of the findings to justify institutional commitment. See State v. Wingler, 25 N. J. 161, 179 (1957). All we find lacking is a definitive conclusion in respect of the statutory criterion.

Subject to the remand for the limited purpose stated, the judgment is affirmed.


author: Malecii, J. S. C.

text:
    JOHN J. BREEN, PLAINTIFF, v. NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued March 28, 1969
    Decided April 2, 1969.

      Mr. John A. Schepisi, for plaintiff {Messrs. Breslin and Monaghan, attorneys).

      Mr. John B. LaVecchia, for defendant {Messrs. Pindar, McFlroy, Connell and Foley, attorneys).
   Malecii, J. S. C.

This case is before the court upon motion by the defendant for summary judgment on the ground that plaintiff’s claim is barred by the statute of limitations {N. J. 8. 2A :14—1).

John J. Breen, an attorney at law of New Jersey, was injured in an automobile accident which occurred on February 21, 1957, in New Jersey. The injuries were caused by the negligence of one Milton Stern in operating his motor vehicle. An automobile Policy No. 57 15107 CZ of New Jersey Manufacturers Indemnity Insurance Company, a standard family automobile policy, insuring Milton Stern was in force and effect on February 21, 1957. The insurance policy was not under seal. Immediately after the happening of the accident Milton Stern gave oral notice of the accident to the defendant insurance company. On August 15, 1957, John J. Breen advised Milton Stern that his injuries were more serious than he had realized. On August 19, 1957, Milton Stern submitted a written report to the defendant insurance company of the accident.

On February 21, 1958, one year after the date of the accident and before suit was instituted, John J. Breen was examined by Dr. Edward Dana on behalf of the defendant insurance company. On March 28, 1958, the defendant insurance company forwarded a letter to its assured, Milton Stern, advising him that it intended to disclaim coverage under its policy because of late notice given by Stern to it. Thereafter on February 13, 1959, John J. Breen instituted suit against Milton Stern in the Superior Court of New Jersey for his injuries caused by the accident on February 21, 1957.

On December 6, 1960, a jury verdict was entered in favor of John J. Breen, plaintiff, against the defendant, Milton Stern, in the sum of $9,000.00 together with costs of suit, for the injuries resulting from the accident. This judgment has never been paid.

On November 15, 1968, John J. Breen, the plaintiff herein, instituted this suit against the defendant insurance company to recover payment upon the judgment dated December 6, 1960. It is to be noted that the instant suit by plaintiff against the defendant insurance company was instituted more than seven years and 11 months after plaintiff had obtained his judgment against the defendant’s insured, Milton Stern.

The only issue to be determined by the court is the applicability of the statute of limitations in a suit by a third party or beneficiary judgment creditor against the tortfeasor’s insurance company. Both parties concede that this precise issue is novel in New Jersey. The parties’ briefs do not disclose any case relevant to the issue involved.

Plaintiff’s first contention is that the applicable statute of limitations is N. J. S. 2A :14-5, which provides for a limitation period of 20 years; plaintiff contending that the insurer undertakes to satisfy any judgment rendered against its insured. Plaintiff argues that in common understanding, such undertaking by the insurance company must be interpreted to protect the insured during the life of the judgment, which is 20 years.

Plaintiff’s second contention is that if the contract period of limitations (6 years) is considered applicable, the cause of action accrued upon breach of the contract on October 1, 1968, when the defendant refused to pay the judgment. (No proofs were offered with reference to the October 1, 1968 refusal of payment.) Plaintiff contends that the accrual of a contract cause of action occurs at the time of breach, and in an analogous situation of the claim of a guarantor, the statute of limitations does not begin to run until there is a failure to pay by the principal debtor. Silverman v. Christian, 123 N. J. Eq. 506 (Ch. 1938). In this connection plaintiff argues that it was entirely proper for him to exhaust every possibility of satisfaction of the judgment against the insured, Milton Stern, before proceeding to demand payment of the judgment from the defendant insurance company. Therefore, plaintiff concludes, the cause of action against the insurance company did not accrue until it refused payment of the judgment on October 1, 1968.

Plaintiff’s third contention is that no rights under the insurance policy accrued to the injured party (plaintiff-Breen) until execution on the judgment against the insured is returned unsatisfied, and that only after the execution is returned unsatisfied can the person injured bring suit against the insurer, citing Suydam v. Public Indemnity Co., 10 N. J. Misc. 868, 872, 161 A. 499 (Sup. Ct. 1932). Plaintiff further relies upon N. J. S. A. 17:28-2, which provides that no policy of insurance shall be issued by an insurer, unless it contains a provision that the insolvencjr or bankruptcy of the insured shall not release the insurer, and further stating that in case execution against the insured is returned unsatisfied, then an action against the insurer may be maintained by the injured person against the insurance company. Such provisions, among others, are deemed to be included in the insurance policy by statute. Therefore, plaintiff concludes that the cause of action does not accrue and did not accrue until the return of an execution unsatisfied. At oral argument plaintiff requested a continuance of the matter to offer proof of the return of an execution unsatisfied sometime in 1968. The court deemed such proof unnecessary, inasmuch as defendant does not contend that more than six years has elapsed following return of an execution unsatisfied.

Defendant insurance company contends that a claim by a judgment creditor, a successful plaintiff in a personal injury suit, against the insurance carrier for the judgment debtor, is barred by the six year statute of limitations governing contracts not under seal. Defendant contends that the present suit involves a claim for breach of an insurance policy; that plaintiff here is claiming in the right of defendant’s insured, Milton Stern. Defendant concludes that actions based upon breach of contract must be brought within six years after the cause of action thereon accrues. N. J. S. 2A:14-1. Since the cause of action on the present insurance policy accrued on the date plaintiff recovered judgment against Milton Stern on December 6, 1960, plaintiff therefore contends that this suit should have been instituted on the insurance policy within six years from December 6, 1960. This action having been commenced on November 15, 1968, defendant contends it is barred by the provisions of N. J. S. 2A :14-1.

Defendant further contends that N. J. S. A. 17:28-2, relied upon by plaintiff, is not pertinent to the issue involved; that the statute sets forth minimal requirements of insurance policies issued in New Jersey. Defendant argues that it has fully complied with this statutory provision, and not satisfied with such minimal coverage has afforded additional rights under the policy. In fact, defendant asserts the terms of the policy require payment by defendant upon recovery of a judgment against the insured. The policy of insurance in this connection provides as follows:

“7. Action Against Company—Coverages A and B:

No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.
Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization any right to join the company as a co-defendant in any action against the insured to determine the insured’s liability.
Bankruptcy or insolvency of the insured or of the insured’s estate shall not relieve the company of any of its obligations hereunder.”

Defendant relies upon the case of Kindervater v. Motorist Casualty Insurance Co., 117 N. J. L. 131 (E. & A. 1936), as dispositive of plaintiff’s contention that N. J. S. A. 17: 28-2 applies. In that case the carrier questioned the sufficiency of the unsatisfied writ of execution proffered by the judgment. The court held such proof to be unnecessary since the policy involved in that suit dispensed with the necessity of furnishing proof that the insured was insolvent.

The court is in accord with defendant’s contention. N. J. S. A. 17:28-2 is not pertinent to the issue involved herein.

At this posture of the case the court must assume the truth of the allegations of the complaint. New Market Poultry Farms, Inc. v. Fellows et al., 51 N. J. 419 (1968). Absent the defense of the statute of limitations, the defendant must concede that its policy of insurance is geared to coverage of its insured upon which an injured party may obtain recovery of a judgment against the insured from the insurer. To this extent the court finds that plaintiff has a meritorious claim against the defendant insurance company.

N. J. 8. 2A:14^1 provides:

“Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A :14-2 and 2A :14r-B of this title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall bo commenced within 6 years next after the cause of any such action shall have accrued.”

Defendant contends that an action against it on the insurance policy issued to Stern is an action on the contract and is therefore barred by the six-year statute of limitations.

N. J. 8. 2A:14-5 provides:

“A judgment in any court of record in this state may be revived by proper proceedings or an action at law may be commenced thereon within 20 years next after the date thereof, but not thereafter. An action may be commenced on a judgment obtained in any other state or country within 20 years next after the date thereof or within the period in which a like action might be brought thereon in that state or country, whichever period is shorter, but not thereafter.”

The plaintiff’s contention is that the insurer undertakes to satisfy judgments recovered against the insured and such promise must be interpreted to protect the insured during the life of the judgment, which is 20 years.

Breen, as between himself and the Insurance Company issuing this policy is the third person. It is a well-established rule in Hew Jersey that the rights of a judgment creditor of an insured under a policy of indemnity insurance on an automobile are purely derivative, and the judgment creditor stands in the shoes of the insured and sues the insurer in the right of the insured. Buzzone v. Hartford Accident and Indemnity Co., 23 N. J. 447, 454 (1957); Dransfield v. Citizens Cas. Co. of N. Y., 5 N. J. 190, 194 (1950); Sneed v. Concord Insurance Co., 98 N. J. Super. 306, 320 (App. Div. 1967); Whittle v. Associated Indemnity Corp., 130 N. J. L. 576 (E. & A. 1943); Kindervater v. Motorists Casualty Ins. Co., 120 N. J. L. 373 (E. & A. 1938). Therefore, at the time this suit was commenced, the rights of Breen were dependent upon the rights which Stern had against the Insurance Company by reason of the issuance of the aforesaid liability insurance policy. Breen can assert only such rights as the insured could assert since he stands in the shoes of the insured as regards defenses of this character.

“As a general rule statutes of limitation applicable to contracts govern actions on insurance * * 53 C. J. S. Limitations of Actions § 44, p. 997. The situation most common is where the insured is injured by an uninsured motorist and attempts to recover under the uninsured motorist provision of his policy. Those cases have held that the contract statute of limitations applied rather than the statute of limitations applicable to torts. DeLuca v. Motor Vehicle Acc. Indemnity Corp., 17 N. Y. 2d 76, 268 N. Y. S. 2d 289, 291, 215 N. E. 2d 482 (1966); Schleif v. Hardware Dealer’s Mutual Fire Ins. Co., 218 Tenn. 489, 404 S. W. 2d 490, 491 (1966); Hartford Acc. & Indemnity Co. v. Mason, 210 So. 2d 474, 475 (Fla. App. 1968); 14 Fla. L. Rev. 455, 471 (1962); 24 Ohio L. Jour. 589, 591 (1963); 48 Calif. L. Rev. 516, 531 (1960).

A case with material facts identical to the case at bar was decided by the Supreme Court of Tennessee. In a suit by a judgment creditor against an automobile liability insurer, the court held that an action, brought against an automobile liability insurer after execution on a judgment against the insured was returned nulla bona, was an action brought by a third party on a contract and was barred where it was brought more than six years after a rendition of judgment against the insured. It further held that the ten-year statute of limitations applicable to judgments could not be applied. Melloan v. Southern Fire and Casualty Co. et al, 206 Tenn. 689, 337 S. W. 2d 452 (1960). Accordingly, since this is an action on an insurance policy by a judgment creditor who stands in the shoes of the insured, the six-year statute of limitations N. J. S. 2A :14-1, which bars actions on contracts, is applicable to this case. The plaintiff’s cause of action accrued on December 6, 1960 when judgment was entered against Milton Stern. Because plaintiff has waited almost eight years to file the present suit, he is barred by the six-year statute of limitations. N. J. S. 2A :14-1. Defendant’s motion for summary judgment is therefore granted.


author: BbeOjStio, J. C. 0.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN YARUSSO, DEFENDANT.
    Hudson County Court Law Division—Criminal
    Argued March 10, 1969
    Decided April 2, 1969.

      Mr. Anthony Be Fino, Assistant Prosecutor, argued the cause for the State {Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney).

      Mr. James J. Gurry, Jr., Assistant Public Defender, argued the cause for defendant {Mr. Stanley Van Ness, ■Public Defender, attorney).
   BbeOjStio, J. C. 0.

This matter comes before the Court on defendant’s motion to dismiss the indictment. Defendant was indicted for possessing a rifle contrary to the provisions of N. J. S. 2A :151-41. It is undisputed that at the time of defendant’s arrest, the instrument did not have either firing pin or bolt. By interpolating the provisions of N. J. S. 2A :151-1 (a) and (c) which define, respectively, “firearm” and “rifle”, defendant argues that he did not possess a rifle at the time of his arrest within the meaning of N. J. S. 2A :151-41 because the weapon lacked a firing pin and bolt. Defendant refers to the general rule that penal statutes are to be strictly construed in favor of the defendant. State v. Meinken, 10 N. J. 348 (1952). He then argues that the weapon must be a rifle within the meaning of the statute at the time of his arrest and that it is immaterial that a firing pin or bolt could be obtained by him at a later time.

Defendant’s argument has merit. Although research reveals no reported case in this State discussing the issue raised by defendant, there is a conflict in two decisions of the federal courts construing similar provisions of the National Firearms Act, 26 U. S. C. § 5801 et seq. In both cases, the question before the courts was whether a shotgun without a firing pin was a shotgun within the meaning of the Act. In United States v. Thompson, 202 F. Supp. 503 (N. D. Cal. 1962), the court, strictly construing the statute, held that the instrument was not a shotgun; while in United States v. Cosey, 244 F. Supp. 100 (E. D. La. 1965), the court, noting that a firing pin could be fashioned from an ordinary wire nail, held that the instrument was a shotgun. It should be noted in the present case that the bolt, as well as the firing pin, was missing.

As indicated in the foregoing remarks, serious substantive issues are raised by the present motion. It is elementary in a charge of unlawful possession that the State must prove beyond a reasonable doubt that (1) the thing alleged to have been unlawfully possessed is in fact that which it may be unlawful to possess and (2) that the item was in fact unlawfully possessed, actually or constructively, solely or jointly, by the defendant. However for reasons of adjective law, the substantive issues cannot be considered in the present posture of the case.

Defendant seeks to dismiss the indictment under R. R. 3 :5—5 (&) (1). He asserts his contention in reference to the inoperability of the rifle is a defense which is capable of determination without trial of the general issue and therefore is a defense which may be raised before trial by motion under the cited rule. The procedural question of the applicability of the cited rule in relation to the defendant’s contention is the immediate issue before this court. Since research fails to disclose any reported decision in this State precisely declarative of the scope of R. R. 3:5-5(6)(l), resort must be made to prior law and to federal rule, F. R. Crim. P. 12(b) (1), upon which our state rule is patterned.

Prior to the advent of the present rules of procedure, an indictment could be attacked before trial by two methods. A defendant could move to quash the indictment or he could demur to the indictment. A motion to quash was addressed to the sound discretion of the court. It was generally employed where the indictment was fatally defective upon its face or where it was claimed that the indictment was a nullity because it was the product of misconduct in the grand jury. The motion to quash required the court to assume the allegations to be true, except when the accused urged that he was only indicted because of misconduct. In such case defendant claimed innocence and that his indictment was an act of oppression. State v. Dayton, 23 N. J. L. 49 (Sup. Ct. 1850); O’Regan and Schlosser New Jersey Criminal Practice and Procedure, sec. 139 (1st Ed. 1938). See, State v. Chandler, 98 N. J. Super. 241 (Law Div. 1967). The motion to quash was granted only upon the clearest and plainest grounds. The motion could be denied if its granting would prejudice the State while not prejudicing the defendant who could otherwise present his contentions by way of demurrer, motion in arrest of judgment or writ of error. State v. Davidson, 116 N. J. L. 325 (Sup. Ct. 1936).

A demurrer to the indictment was a plea by way of confession and avoidance. The effect of the demurrer was to admit the truth of the factual allegations of the indictment but claim they were insufficient in law. A good example of the demurrer may be found in State v. Klapprott, 127 N. J. L. 395 (Sup. Ct. 1941). (In Klapprott, members of the German-American Bund were indicted for making scurrilous statements about the Jewish people. Defendants demurred to the indictment upon the ground that the statutes upon which the indictment was based, N. J. S. 2: 157R-5 and 6, were unconstitutional under both the State and federal constitutions. Defendants’ contention was upheld upon appeal from an adverse trial court determination). Although a motion to quash could be employed in lieu of a demurrer, the demurrer differed in effect from the motion to quash in two important aspects. Unlike a motion to quash which was addressed to the sound discretion of the court, a demurrer well taken entitled the demurrant to a judgment in his favor as a matter of law. State v. Klapprott, supra; O’Regan and Schlosser, supra, sec. 146. Also, since the legal effect of the demurrer was that each averment well pleaded was taken as confessed to by the defendant, State v. Klapprott, supra, if the demurrer was overruled, the defendant waived trial by jury and stood convicted of the crime, unless the indictment charged a capital offense or the court, in its discretion, permitted the defendant to plead over. State v. Sharp, 75 N. J. L. 201 (Sup Ct. 1907), affirmed, 76 N. J. L. 576 (E. & A. 1908) ; State v. Passaic County Agricultural Society, 54 N. J. L. 260 (Sup. Ct. 1892). This last factor was the primary reason why the demurrer was little used. Fortunately for defendants, the present-day motion to dismiss does not have the same effect. See, R. R. 3:5-5(6)(5).

Thus, as can be seen, under both prior methods of attacking an indictment before trial, the facts plead in the indictment were to be taken by the court as true. A dispute relating to a factual allegation in the indictment could not be raised by motion before trial. Thus, in a case factually similar to the instant action, it was held, prior to the advent of the Federal Rules of Criminal Procedure, that the question of whether an object was a firearm under the National Firearms Act, supra, could not be raised by a demurrer before trial. United States v. Tot, 36 F. Supp. 273 (D. N. J. 1941). The Court reasoned that the demurrer was a “speaking” demurrer which sought to attack the indictment by the addition of facts not present upon the face of the indictment, namely, that the object, a pistol, did not have a silencer or muffler, a fact which defendant contended brought the pistol outside of the scope of the Act. It should be noted at this juncture that the present procedural issue does not appear to have been considered in either United States v. Thompson, supra, or United States v. Cosey, supra.

The question now is whether the procedure has been sufficiently altered by R. R. 3:6-5(b)(1) so as to permit the factual allegation of the indictment, i. e., that the object which defendant was alleged to have possessed was a rifle within the intendment of N. J. S. 2A :151-41, to he attacked by motion before trial by the addition of facts not contained in. the indictment, namely, that the rifle did not possess either a firing pin or bolt. Since, as has been noted, there is no decision in this state declarative of the scope of the rule as such, reference must be made to the construction of the federal rule.

The leading federal case in reference to F. R. Crim. P. 12 (b) (1) appears to be United States v. J. B. Watkins Company, 16 F. R. D. 229 (D. Minn. 1954). In that case, defendant was charged with knowingly and falsely representing in a required report to the Commissioner of Internal Revenue its use of specially denatured alcohol which it had a permit to use in its manufacture of liniment. The government charged that the denatured alcohol had been used in the manufacture of liniment that would be sold and used for internal human purposes rather than for external use only. Defendants moved to dismiss the indictment under Rule 12 (&) (1) upon the grounds that (1) the prosecution was barred under the statute of limitations and (2) the use in the report of a certain code number was not a representation that the denatured alcohol was for external pharmaceutical use only as contended by the government. While holding that the defense of the statute of limitations could be raised before trial by motion under Rule 12(b)(1), the court held the factual allegation of whether use of the code number constituted a misrepresentation could not be litigated by motion before trial. The court noted the general rule that on a motion to dismiss an indictment for failure to charge an offense, the allegations of the indictment must be taken as true, and that the motion would not be proper under prior practice as a “speaking demurrer.” The court stated that in its opinion the notes of the Advisory Committee to the United States Supreme Court on Rule 12 indicated that Rule 12(6) was not intended to authorize speaking motions. The court stated, “Although defendants correctly point out that one purpose of the Federal Criminal Rules was to avoid unnecessary trials, the drafters of the rules were not so concerned with expediting procedure as to include in the rules a provision for a motion similar to the Civil Rules’ summary judgment.” 16 F. R. D., at 234. This analysis of the intended scope of Rule 12(6) (1) appears to be correct. See, 8 Cipes, Moore’s Federal Practice, Chap. 12 (2nd ed. 1968).

From an analysis of the prior procedural rules and the federal rule upon which R. R. 3 :5-5(b) (1) is based, it is apparent that the defendant may not raise his contention as a defense by motion before trial. This court is precluded at this time from entertaining testimony which contradicts the factual allegations of the indictment. Defendant may raise his defense only at trial. The only proper motion to the court, prior to submission of the ease to the jury for its determination of whether the object is a rifle within the intendment of the statute, would be a motion for judgment of acquittal under R. R. 3 :7-6.

In reaching its decision, this court is mindful of the decision of the Appellate Division in State v. Seng, 91 N. J. Super. 50 (App. Div. 1966), reversing, 89 N. J. Super. 58 (Law Div. 1965). In the Seng case, defendant moved to dismiss (presumably under R. R. 3:5-5(b)(1)) four indictments in which the common issue was whether or not a teargas pengun or a teargas gun is a firearm within the meaning of the statutes referred to in the indictments, N. J. S. 2A :151-41, 2A :151-19, 2A :151-31 and 2A:151-24. The trial court granted the motion to dismiss. In reversing the trial court, the Appellate Division commented as follows:

“(The) issue is a factual issue not to be resolved on a motion to dismiss the indictment. It is an issue to be determined at the trial after evidence is adduced as to the structure and nature of the instrument and its capabilities.” 91 N. J. Super., at 52.

Although both reported decisions in the Seng ease are bereft of any discussion of the procedural rules involved, it is implicit in the decision of the Appellate Division that R. R. 3 :5-5(b) (1) is to be construed in the same manner that F. R. Crim. P. 12(b) (1) was construed in United States v. J. R. Watkins Company, supra.

Accordingly, defendant’s motion to dismiss the indictment at this posture of the case under R. R. 3 :5-5 (b) (1) is denied without prejudice.


author: Kilkenny, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD A. HARRIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued March 24, 1969
    Decided April 22, 1969.

      Before Judges Coneokd, Kilkenny and Leonakd.

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

      Mr. Ivan M. Sherman, Assistant County Prosecutor, argued the cause for respondent (Mr. Joseph Tuso, Cumberland County Prosecutor, attorney).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

A consolidated trial in the Cumberland County Court, before a jury, of two indictments against defendant, one containing four counts and the other six counts, resulted in a verdict of guilty on all ten counts.

Defendant was sentenced to State Prison for consecutive terms of five to six years on the first and second counts of indictment 114-67 and concurrent terms of two to three years on each of the other four counts of this indictment. On indictment 220-66, defendant was sentenced to terms of two to three years on each of the four counts to run concurrently with the sentences under indictment 114—67. In effect, defendant has been sentenced to a term of 10 to 12 years.

Defendant appeals from the judgments of conviction. Eleven points are presented why the judgments should be reversed. One of them, in our view, mandates a reversal and remand for new trials.

The joinder for trial of the two indictments, containing in all ten counts, charging many crimes of various natures, separated in time in some instances by seven or eight months, involving some six different victims, diverse locations and different factual circumstances — even though assigned defense counsel made no objection to the consolidation — constituted “plain error,” manifestly prejudicial to defendant. We note for the record that assigned trial counsel was not a regular member of the Public Defender’s staff.

Indictment 220-66 charged defendant in the first count with breaking and entering Robinson’s Gulf Station in Bridgeton on April 28, 1967 with intent to steal, in violation of N. J. S. 2A :94—1. The second count charged that at the same time and place he stole some $17 in change, in violation of N. J. S. 2A :119-2. The third count charged a separate breaking and entering, also on April 28, 1967, of the Eirst Presbyterian Church, a different location in Bridge-ton, with intent to steal, in violation of N. J. S. 2A :94-1. The fourth count of this four-count indictment charged defendant with stealing $2 in change from the church, in violation of N. J. S. 2A :119—2.

We can appreciate that the first and second counts are interrelated, so that no prejudice would result from trying them together. So, too, the third and fourth counts of this indictment 220-66 are interrelated and could be tried together without prejudice. Some argument might be made that it was not unduly prejudicial to try all four counts of this indictment at the same time, because the offenses were all committed on the same date, perhaps in close proximity in time, and in the same city of Bridgeton. The nature of the offenses is the same, namely, breaking and entering with intent to steal, coupled with larceny, in each of the two instances.

Indictments containing separate counts for breaking and entering with intent to steal and larceny are commonplace, as is their joinder for trial, when both crimes stem from the same incident and were allegedly committed by the same defendant or defendants. See State v. Fioravanti, 46 N. J. 109 (1965). There a single victim was involved. So, too, there may be a valid consolidated trial of a several-count indictment arising from the same episode, as where the defendant perpetrates a robbery and there are several victims of his criminal activity at the same time and place.

So, too, we are mindful of the rule of res inter alios acta and the exceptions thereto. Under this rule, the commission of one crime or of a series of crimes different from the one charged may tend to show that the defendant is a bad man, and thus make the inference easy that he might have committed the crime charged. The effect of such evidence, if admitted, would invariably be to prejudice the jury against the accused, and divert their minds from an impartial consideration of the evidence as to the particular crime charged. McKelvey on Evidence (5th ed. 1944), p. 283.

A well-recognized exception to this rule of exclusion is the allowance of evidence of the commission of another crime to show motive, intent or guilty knowledge, or where the crime proved is an incident to, a part of, or leads up to the crime with which a defendant is charged. State v. Popick, 83 N. J. L. 318, 319 (Sup. Ct. 1912); State v. Fay, 127 N. J. L. 77, 82-83 (Sup. Ct. 1941). So, too, proof of other crimes may be admitted to establish a common plan or scheme, or identit3r, or the absence of mistake. State v. Lederman, 112 N. J. L. 366, 373 (E. & A. 1934); State v. DePaola, 5 N. J. 1, 12 (1950).

In the instant case, there was manifest injustice in consolidating for trial the ten counts in the two indictments. The only excuse offered was that the same police officer handled all the investigations and it would save him and the court time in holding a single trial lumping together all outstanding charges against this defendant. We cannot escape the conclusion that this action deprived defendant of fundamental justice.

That error was obviously compounded when we consider that the charges of breakings and enterings and larcenies in indictment 220-66 were tried along with the six charges in indictment 114-67, which related to charges of atrocious assaults and batteries and the robberies of two other victims, as well as an assault and battery against two police officers, and defendant’s escape while in their custody.

We find it unnecessary to decide the other ten points advanced on behalf of defendant. We mention them briefly to indicate that they have received our consideration. Upon the retrial, the trial court should hold a preliminary hearing concerning the voluntariness of defendant’s written and oral confessions io determine their voluntariness. See Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v. Johnson, 43 N. J. 572 (1965); State v. Hodgson, 44 N. J. 151 (1965); State v. Wolf, 44 N. J. 176 (1965); State v. Green, 49 N. J. 244 (1967); State v. Broxton, 49 N. J. 373, 377 (1967).

Prior convictions of defendant may be shown, if he testifies. for the limited purpose of affecting his credibility as a witness, and the trial judge should instruct the jury as to that limited effect, N. J. S. 2A :81-12, but pointing out that the jury is free to infer or refuse to infer impaired credibility because of such convictions.

Out-of-court identifications of defendant are subject to the rules laid down in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Any out-of-court identification of a defendant, to be admissible, must be made under circumstances precluding unfairness, to comport with due process of law. State v. Woodard, 102 N. J. Super. 419, 424 (App. Div. 1968).

The right to counsel prior to police questioning of an accused is conceded by the State. Whether there was a knowing, intelligent and voluntary waiver thereof, as the State asserts existed herein, is a subject of proper inquiry. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Since there will be a new trial, the claims made by defendant that (a) the trial judge unduly intervened in the case; (b) the prosecutor unfairly badgered the defendant and made remarks outside the evidence in his summation; (e) trial counsel was inadequate; (d) defendant’s motion for a change of venue was erroneously denied; and (e) there was an aggregation of errors requiring a new trial, require no decision by us.

The judgments of conviction are reversed and the matters are remanded for new trials. There should be separate trials, which should include only the joinder of related incidents.


text:
    FRED ZANNI, APPELLANT, v. RUDOLPH POULTRY EQUIPMENT CO., RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 10, 1969
    Decided April 23, 1969.

      Before Judges Conford, Kilkenny and Leonard.

      Mr. Solomon Friss argued the cause for appellant (Mr. Patrick T. McGahn, Jr., attorney) .

      Mr. Theodore T. Tams, Jr., argued the cause for respondent.
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Petitioner Pred Zanni appeals from a judgment of the Atlantic County Court affirming the dismissal by the Division of Workmen’s Compensation of his claim petition for benefits because of injury to his thumb.

The dismissal was based upon a finding that the claim for the thumb injury was barred by the statute of limitations, R. S. 34:3 0-41 and 51, in that the petition was filed more than two years from the last date on which petitioner received any benefits within the meaning of the Workmen’s Compensation Act.

It is not disputed that petitioner was injured on October 24, 1964 in the course of his employment with respondent employer. That accident involved an injury to his right thumb. The instant claim petition for that injury was filed on April 17, 1967. Petitioner carne under the care of Dr. George P. Glenn, an orthopedic surgeon, who treated petitioner on behalf of respondent. The basic issue of fact, litigated below and contested in the briefs submitted on this appeal, was whether petitioner’s last authorized treatment by Dr. Glenn for his thumb was on March 9, 3965, as the doctor testified and his records reveal, or on April 23, 1965, as petitioner testified. On that issue both the Division and the County Court, on appeal, concurred in finding that Dr. Glenn’s last treatment of the thumb was on March 9, 1965. Accordingly, they concluded that the claim petition filed on April 18, 1967 was beyond the two-year limitation period and, for that reason, dismissed it as untimely.

The limited scope of our appellate review, as set forth in Close v. Kordulak Bros., 44 N. J. 589 (1965), requires us to subscribe to that finding—as between March 9, 1965 and April 23, 1965—because it could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. (Id., at p. 599).

Wliat complicates the case before us is the fact noted by us at oral argument, sua sponte, that the record discloses that petitioner received a treatment from Dr. Glenn for this same thumb injury on March 23, 1967. Dr. Glenn testified that petitioner returned to him on March 23, 3 967 and at that time “he indicated that he was still having difficulty with respect to his right thumb. I suggested that X-rays be repeated, which were done.”

We have no doubt that “medical treatment” includes examinations and the taking of X-rays. Mangieri v. Spring Tool Co., 68 N. J. Super 211, 217 (Cty. Ct. 1961). A medical treatment furnished by an employer is considered a payment of compensation and, ordinarily, a claim petition filed within two years of such treatment is timely. Sa v. H. L. Harrison & Son, Inc., 38 N. J. 203, 207 (1962); DeAsio v. Bayonne, 62 N. J. Super. 232, 236 (App. Div. 1960).

In the interest of substantial justice, we requested counsel at oral argument to submit supplemental memoranda of law on whether the furnishing of medical treatment of the thumb by the same doctor, who originally treated petitioner on behalf of respondent for the same thumb injured in the 1964 industrial accident, would entitle petitioner to file a claim petition within two years of that last 1967 treatment when the claim had already been barred by the two-year statute of limitations. The memoranda have been filed and considered.

Is a medical treatment furnished by a doctor after the statute of limitations has run, barring the claim, sufficient to revive the claim so as to give petitioner two more years within which to file a claim petition?

We must note this additional fact. Zanni suffered another industrial accident in 1965, sustaining an injury to his shoulder. He went to see Dr. Glenn for that shoulder injury. He testified that he went on April 23, 1965 and Dr. Glenn gave him “a needle” in the shoulder and other treatment for that injury, and also put “a needle * * * right through the thumb and it came out the other side.” The doctor’s records do not indicate any treatment of the thumb on that date, but refer to the shoulder treatment. Yet the doctor testified, as noted above, that Zanni’s last visit and treatment of the thumb was on March 23, 1967. The record does not reveal whether the March 23 thumb treatment was merely incidental to a treatment of the more lately injured shoulder.

We also observe that the record before us is silent as to whether the March 23, 1967 treatment of the thumb was authorized by respondent employer or its insurance carrier, or ratified by payment of the doctor’s bill, if a bill was ever rendered therefore. There is no showing by petitioner that he ever requested his employer to furnish this additional medical treatment, or that the respondent employer or its carrier knew of it or acceded thereto, after the statute of limitations had already run. For aught we know, the doctor’s examination of the thumb and recommendation of X-rays might have been purely voluntary on his part, without any contemplation that it was in fulfillment of any obligation due petitioner under the workmen’s compensation law.

In 2 Larson’s Workmen’s Compensation .Lav: 271, § 78.43(b), the author states:

“Once the claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of an isolated bit of medical service years after the injury. The objective of the statute being to protect the claimant who reasonably refrains from making claim because of the receipt of benefits voluntarily supplied, no claimant can allege that Ms failure to make timely application was excused by something that happened after the claim was already barred. Moreover, since the employer was under no obligation to furnish such benefits once the right to them was barred, it cannot be said that he provided them as voluntary ocmpensation payments.”

We think the foregoing expression entirely sound, and agree with it in relation to our own statute.

Where the parties’ conduct indicates that the payments are not pursuant to a statutory obligation, they do not toll the statute. Thus, where the employer made a voluntary payment of medical bills for treatments received after the statute of limitations had run, a compensation claim filed a year later was held barred, because the payment was not compensation as required by the statute. Riccioni v. American Cyanamid Co., 26 N. J. Super. 1 (App. Div. 1953), certification denied 13 N. J. 289 (1953).

The distinction between a gratuitous payment and one made obligatory under the statute was stated in Mangieri v. Spring Tool Co., supra, 68 N. J. Super. 211, as follows:

“Reimbursement of medical expenses by an employer to an employee as a gratuity and not on account of workmen’s compensation does not stay the running of the statute of limitations.” (at p. 218; emphasis added)

Petitioner cites Pfahler v. Eclipse Pioneer Div. of Bendix Aviation Corp., 21 N. J. 486 (1956). That case is readily distinguishable. There, the medical treatments were given before the statute of limitations had run and the claim petition was filed within the two years of the last treatment. Here, the statute of limitations had already barred the claim before a final treatment thereafter—relied upon to extend further the limitational period—was given.

Petitioner also relied upon Lynch v. Newark, 43 N. J. Super. 546 (Cty. Ct. 1957), affirmed as modified 46 N. J. Super. 335 (App. Div. 1957). That case is also distinguishable on its facts. There the need for medical treatment of the injured fireman was notorious. Treatment was undertaken and supervised by the fire surgeon throughout a seven-year period of practically continuous medical and surgical care. The court considered this as constituting authorization for petitioner to obtain all treatment which the city was required to furnish in fulfillment of the duty imposed by law. A prior claim petition was dismissed for lack of prosecution. Tt was not reinstated within the one-year period allowed by R. S. 34:15-51. A new petition was filed within two years of the last date upon which treatment was furnished. It was held that the one-year reinstatement provision was not applicable and the new petition was timely.

In the instant case there was no showing that the injured employee was receiving practically continuous medical care. Prom the fact findings of the Division and County Court, there was no medical treatment for the injured thumb between March 9, 1965 and March 23, 1967, on which last-mentioned date the doctor last examined the thumb and X-rays were taken. This last isolated treatment was after the employer, because the statute of limitations had alreadj' barred further claim as to the thumb, was no longer under any continuing obligation to furnish further medical treatment. And there is no evidence of any authorization, express or implied, for that last treatment as to the thumb. The judgment of dismissal is affirmed.


author: Lewis, J. A. D. Foley, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STONEWALL THOMAS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 24, 1969
    Decided April 23, 1969.
    Foley, J. A. D., dissented.

      Before Judges Sullivan, Foley and Lewis.

      Mr. Daniel B. Coburn argued the cause for appellant (Mr. Bichará Newman, Deputy Public Defender, attorney).

      Mr. Edward J. Butrym, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent Panaro, Mercer County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendant Stonewall Thomas was indicted, tried and convicted by a jury for carrying a firearm without a permit in violation of N. J. 8. 2A :15i-4i which, in pertinent part, provided:

s. * any person wj10 earries, holds or possesses * * * on or about his clothes or person * * * or under his control in any public place or public area:
a. A pistol or revolver without first having obtained a permit to carry the same * *;
c. * * * is guilty of a misdemeanor.”

There were three witnesses; the facts are relatively uncomplicated. Defendant’s brother, John Thomas, testified mat on Saturday, November 25, 1967, around 5:50 p.m., he entered a liquor store at Jackson and Market Streets, Trenton; his brother remained outside. He was in the store about five minutes and upon leaving he observed his brother talking with James Smith, whom he (John) knew “from jail”; they were approximately a block away, on the sidewalk near a laundromat. The witness walked in that direction and after he had gone about a block past them, his brother ran up to him and handed him “something * * * it was a pistol.” John explained:

“Well, I had a big coat on. He [defendant] said, ‘Take this’ and stuck it in my pocket.”

At that point he turned around and saw Smith either walking or running behind the laundromat.

The witness also testified that he did not know how or when his brother obtained the weapon, it did not belong to his brother, he did not know whether Smith had a gun, and that he was unaware of the events that transpired between Ms brother and Smith because they occurred either while he was in the liquor store or after he had walked down the block and past his brother and Smith.

Patrolman .Capasso gave evidence that in the early morning of Uomember 26 he was dispatched to defendant’s home in connection with a warrant for the arrest of defendant and his brother John who “were wanted in connection with a shooting of a James Smith.” Defendant was apprehended in the house and, as they were leaving, John “was just approaching from the street” and he was placed under arrest. A search incident thereto revealed a revolver in John’s .coat pocket.

Defendant denied ownership of the gun. His testimony was to the effect that while his brother was in the liquor store, he met Smith on the sidewalk and an altercation ensued. In the words of defendant,

“He [Smith] shoved me. I shoved him back. Ho reached his hand in his pocket and pulled out a pistol. It was too close to run. I grabbed him and we had a tussle and the gun fell to the street * * * I picked it up; hand my brother it.”

The following cross-examination by the prosecutor is noteworthy :

“Q. Were you here when your brother was testifying yesterday?

A. Yes, I was.

Q. Did you hear him testify that he had walked almost a block down Market Street and then you had run up to him and handed him the gun?

A. I remember him testify to that.

Q. You say his testimony was correct?

A. No, I didn’t.”

Qn appeal defendant urges that N. J. S. 2A :151—41 is unconstitutional as applied to him and that the evidence was insufficient to establish the essential elements of a crime since his possession of the gun was instantaneous and his intention was not criminal.

That defendant had possession of the firearm is beyond dispute. Although it is unclear as to how long he possessed it, the record plainly indicates that if, indeed, he did not own the gun, he voluntarily took possession of it and made no effort to deliver it to the lawful owner or to the police authorities; to the contrary, his participation in an effort to conceal the pistol in his brother’s pocket suggests a consciousness of possession and a designed control of the weapon. His dealings with the gun in a public place, in the circumstances, indicated an intent to possess it and the effective realization of such intent, a “possession” within the technical meaning of the word as discussed in Slate v. Lobato, 7 N. J. 137, 148 (1951). The jury was not obliged to accept defendant’s version as to what transpired.

It is next argued that the trial court erroneously failed to mention or explain to the jury the statutory exceptions to N. J. S. 2A :151-41 and the legal concept of “possession.” At no time during the trial did defendant claim possession within the statutory exceptions enumerated in N. J. S. 2A :151-42, entitled “Carrying firearms about one’s premises or for purposes of repair, hunting or target practice.” Moreover, defense counsel proffered no requests to the trial judge to supplement the jury instructions with respect to “possession” and made no objections to the charge that was given. To be plain error, defendant’s substantial rights must be affected. R. R. 1:5-1 (a); 2:5; State v. Jefferson, 101 N. J. Super. 519, 527-528 (App. Div. 1968), certification denied 52 N. J. 486 (1968). We are not convinced that the trial court committed plain error.

Finally, defendant challenges certain remarks of the prosecutor in summation. No objections were made thereto. In any event, we find no prejudicial impropriety.

Judgment affirmed.

Foley, J. A. D.

(dissenting). I do not disagree with the majority holding that upon the State’s proofs a prima facie showing of violation of N. J. S. 2A:151-41 was made out. Nor do I think that a question of constitutional dimensions is presented.

My disagreement, stems from the majority holding that the trial court did not plainly err in failing to instruct the jury with respect to the legal concept of “possession.”

“Possession” of the revolver was the crux of the case— not necessarily possession in the ordinary dictionary sense, see e. g., “possession,” Webster’s Seventh New Collegiate Dictionary (1967), but in legal connotation, see State v. Labato, 7 N. J. 137, 148 (1951).

In Lobato it was said:

“ ‘Possession’ is an ambiguous term derived from the Roman law. It has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. * * * Animus possidendi is of the essence of possession. * * * ‘Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it.’ * * * The elements of this possession are: Eirst, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and, second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts, in order to constitute possession.”

The testimony of defendant, as outlined in the majority opinion, was such that had the jury been instructed in accordance with Labato it could reasonably have found (if it believed defendant) that he was not guilty of possession of the revolver within the legal meaning of the term. Absent such instructions the jury was given free rein to apply to this “ambiguous term” of “variant connotations” such definition as might appeal to the lay mind.

Turning to the record: the trial judge read to the jury the indictment which charged that Thomas “did carry in a public place a certain weapon, to wit: a revolver, on or about his person without first having obtained a permit to carry the same, contrary to the provisions of New Jersey Statutes 2A :151-41.” The court then went on to say:

“You will note that it mentions the statute 151-41, which reads as follows: ‘Except as hereinafter provided, any person who carries, * * * in an automobile, carriage, motor vehicle or other vehide, or concealed on or about his clothes or person, or otherwise concealed in his possession, * * * a pistol, * * * is guilty of a misdemeanor.’ ”

After a brief recital of the facts, in which the court observed that the testimony of defendant did not differ greatly from that of his brother, the judge then said, “the question you have to decide is whether or not he had possession. As I say, the testimony does not vary.” This was all that was said on the subject of possession.

Thus, it will be seen the jury was never informed concerning the legal, and somewhat restricted, connotation of “possession” in a criminal case, where that fact is the basis of an indictment.

The traditional function of the judge is to instruct the jury as to the law governing the issues to be decided by them under the facts of the particular case. The classical practice generally followed in criminal cases is for the judge to outline the applicable law, explaining and defining the offense charged, and the jury, thus being informed as to the exact law which they must decide had been or had not been violated, places its determination of the facts alongside the law and decides whether the verdict shall be guilty or not guilty. To fail to define the offense attributed to the accused and the essential elements which constitute it, is to assume that jurors are educated in the law—an assumption which no one would undertake to justify. A mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case. Among such principles is the definition of a crime, the commission of which is basic to the prosecution against the defendant. And the duty is not affected by the failure of a party to request that it be discharged. Whether, in the absence of objection, such failure constitutes plain error depends upon the circumstances of the particular case. State v. Butler, 27 N. J. 560, 594-595 (1958).

Furthermore, the potential harm to defendant which was implicit in the failure of the judge to explain the legal meaning of possession was aggravated by the judge’s comment that the testimony of defendant did not differ greatly from that of his brother and that the testimony relevant to possession did not “vary.” Obviously the court had in mind the broad concepts of possession revealed by dictionary definitions.

But, as has been noted, the Batato definition is somewhat more restricted. Under that definition defendant’s version was susceptible of an inference that momentarily and by reflex action he seized the revolver lying in the street to guard against the possibility that Smith might regain possession of it and put defendant in further jeopardy. If so, that coupled with the immediate transfer of the weapon to the brother might well have raised a reasonable doubt in the jury’s mind of defendant’s animus possidendi of which, incidentally, no mention was made in the charge.

On the other hand, if the jury believed John Thomas it could reasonably have concluded that, as defendant walked a block or so to join John, ample time elapsed for him to have formed in his mind the requisite animus possidendi.

Thus, I conclude that the judge’s comment equating the testimony of John to that of defendant was inaccurate and misleading. There was indeed a difference in the two versions and the inferences which could be drawn from them.

I am convinced that (1) the charge as given did not fulfill the mandates of the Butler case, and (2) the issue presented was so narrow that the deficiency in the charge constituted plain error. R. R. 1:5-1 (a).

I would therefore reverse.

       At the time the case was tried N. J. S. 2A: 151-41 had been amended to delete therefrom the element of concealment, L. 1966, c. 60 § 32, p. 497.


author: Gauliciií, S. J. A. D.

text:
    FOSTER ESTATES, INC., PLAINTIFF-RESPONDENT, v. VICTOR J. WOLEK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 7, 1969
    Decided April 25, 1969.

      Before Judges Gaulkiit, Collester and Labrecque.

      Mr. Richard O. Venino argued the cause for defendant-appellant.

      Mr. Daniel M. Hurley argued the cause for plaintiff-respondent (Messrs. Feuerstein & Sachs, attorneys).
   The opinion of the court was delivered by

Gauliciií, S. J. A. D.

This is a fire insurance subrogation case. The New Hampshire Insurance Company (New Hampshire) paid Foster Estates, Inc. (Foster) $12,498 for damage by fire to Foster’s building. New Hampshire, claiming that defendant Wolek, Foster’s tenant, negligently caused the fire, instituted this action in the name of Foster against Wolek for the damage caused by the fire. Wolek moved for summary judgment on the ground that, pursuant to the lease, he had bought and paid for the New Hampshire policy and therefore New Hampshire was not entitled to subrogation against him even if his negligence caused the fire. The motion was denied and we granted Wolek leave to appeal.

The facts are not in dispute. On January 15, 1962 Foster leased to Wolek certain premises upon which Foster agreed to erect a building to be used by Wolek to carry on the ■business of ornamental iron works. The lease was for ten years after completion of the building. It was prepared by Foster’s attorney and consisted of a “Blumberg” printed form (Form No. 880) to which was appended a typewritten face page and a typewritten concluding page. It contained, inter alia, the following paragraph:

“Twenty-ninth. — The Tenants agree to keep the building to be erected on the demised premises insured against loss or damage by-fire, with extended coverage, in an insurance company satisfactory to the Landlord * * s' and to deliver all such insurance policies to the Landlord ® * * with evidence of payment of the premiums therefor.”

Wolek procured the New Hampshire policy, with extended coverage, naming Foster Estates as the insured, paid the premium thereon and delivered it to Foster.

On March 18, 1965, after Woiek had finished welding a loose fender on a truck, the truck or gasoline beneath the truck caught fire, setting fire to the building. Foster used the money received from New Hampshire in settlement of the loss to repair the damage. Wolek has continued to occupy the property and to pay the rent.

The rights of a subrogated insurer can rise no higher than the rights of its insured. Furthermore, a subrogee is subject to all legal and equitable defenses that the alleged tortfeasor may have either against it or against the insured, and there can be recovery only if the cause is just and consonant with right and justice. Standard Accident Insurance Co. v. Pellecchia, 15 N. J. 162, 172, 173 (1954) ; Board of Education, Woodbridge Tp. v. Kane Acoustical Co., 51 N. J. Super. 319, 327 (App. Div. 1958); Larstan Industries, Inc. v. Res-Alia Holding Co., 96 N. J. Super. 37, 44 (App. Div. 1967). Cf. Fry v. Jordan Auto Company, 224 Miss. 445, 80 So. 2d 53, 57 (Sup. Ct. 1955).

In 29A Am. Jur., Insurance, § 1731, pp. 807-808 it is said:

“Where insurance on mortgaged property has been obtained by the mortgagor, or at his request and expense, the insurer is not entitled to subrogation to the rights of the mortgagee on a payment of the loss to him, in the absence of a specific provision therefor in the policy; and this rule is applicable notwithstanding the insurance is taken in the name of the mortgagee.”

We hold that, in the absence of facts showing a contrary intention, the same rule applies when a policy insuring the landlord is obtained and paid for by the tenant, even though the tenant is not named in the policy. Cf. Larstan Industries, Inc. v. Res-Alia Holding Co., supra; Mayfair Fabrics v. Henley, 97 N. J. Super. 116 (Law Div. 1967), affirmed sub nom. Natell v. Henley, 103 N. J. Super. 161 (App. Div. 1968). (Hereafter this case will be called Mayfair II to distinguish it from Mayfair Fabrics v. Henley, 48 N. J. 483 (1967) (Mayfair I) and Mayfair Fabrics v. Henley, 101 N. J. Super. 363 (Law Div. 1968) (Mayfair III).) See also 46 C. J. S. Insurance § 1144, p. 23.

Here nothing is shown or suggested to take this case out of the general rule. On the contrary, the provisions of the lease support the conclusion that it was the intention of the parties that there be no liability upon the tenant for fire damage even if negligently caused, if the tenant provided insurance.

The lease provided that the “annual net rent” was to be six percent of the landlord’s “total investment * * * in the land and in the new building to be erected thereon * * This was to include legal and architect’s fees “and such other expenses as may properly be chargeable to this undertaking.” In the event capital improvements were made by the landlord during the term of the lease, the annual rent was to be increased by six percent of the cost thereof. In addition to the fire insurance, the tenant was to provide plate glass and owner’s, landlord’s and tenant’s public liability insurance, and pay all taxes. In short, the landlord was to earn six percent net upon his investment.

The lease provided that the tenant was to “keep the demised premises in good condition,” but if the premises were damaged by “fire, explosion, the elements or otherwise * * * but yet be repairable,” the landlord was to make the repairs. As we have said, Foster bargained for a six percent return on its investment. Had the lease not provided for insurance, Foster might have looked to Wolek for reimbnrsement for the fire damage or, if not, perhaps for six percent of the cost of the repairs per annum as additional rent. The purpose of the provision that Wolek procure the insurance was to take care of that very contingency for the benefit of both Poster and Wolek at no expense to Poster.

The facts that Wolek may have negligently caused the fire and that Wolek was not named in the New Hampshire policy are immaterial. Mayfair I, II, III, supra; Larstan Industries, Inc. v. Res-Alia Holding Co., supra.

In the Mayfair cases the lease provided that the landlord was to insure the building against fire and the tenant was to insure his equipment and personal property. Such insurance was obtained. The landlord’s policies made no mention of the tenant, Mayfair Fabrics, or of the lease; Mayfair’s policies made no mention of the landlord. The lease provided that “in no event” was the landlord to be liable for damage to the tenant’s property by fire, but there was no clause exculpating the tenant. There was a fire and the companies paid the landlord and the tenant under their respective policies. The tenant then sued the landlord (Mayfair I), alleging that the landlord’s negligence caused the fire. The Supreme Court held that the exculpatory clause barred recovery, even for the landlord’s own negligence. The court said:

“The plaintiff contends that since paragraph 28 did not specifically refer to actions grounded on negligence it should be deemed inapplicable here. Cf. Freddi-Gail v. Royal Holding Corp., 34 N. J. Super. 142 (App. Div. 1955). But there are no required words of art and, whatever be the language used or the rule of construction applied, the true goal is still the ascertainment and effectuation of the intent of the parties. See George M. Brewster & Son, Inc. v. Catalytic Const. Co., 17 N. J. 20, 32 (1954) ; Stern v. Larocca, 49 N. J. Super. 496, 501 (App. Div. 1958) ; Corhin, on Contraets, supra § 1472, at p. 604. It cannot fairly be doubted that, when the parties have allocated the fire risk and the obligation to insure, they had in mind fires caused by human negligence, as most of them are, as well as fires resulting from so-called acts of God. * * (48 N. J., at p. 489)

The court also quoted with approval from Midland Carpet Corp. v. Franklin Assoc. Properties, 90 N. J. Super. 42, 48 (App. Div. 1966) saying that in that case also “the lease reflected a studied attempt to spell out the distribution of the risks and * * * its practical effect was to specify ‘who was to obtain and bear the cost of insurance to indemnify against loss or damage * * *’ ”. (48 N. J., at p. 488)

In Mayfair II the landlord sued the tenant, claiming that its negligence had caused the fire. As we have said, the tenant had no exculpatory clause to help him. Nevertheless Judge John A. Ackerman, in a thorough and well reasoned opinion, held that since the lease provided that each was to insure its own property it was plain that it was not the intention of the parties that the landlord should recover from the tenant for damage by fire caused by the tenant’s negligence. Judge Ackerman said:

“* * * Here we have a commercial lease entered into between businessmen. In plain and unmistakable language they mutually agreed that each would insure his own property against loss by fire at his own expense. Their agreement should be construed to accord with the understanding of reasonable businessmen, see Mortgage Co. of New Jersey v. Manhattan Savings Bank, 71 N. J. Super. 489, 497 (Law Div. 1962), and in harmony with the modern judicial view that provisions in leases and other commercial agreements such as that here involved, whether couched in language of indemnity or exculpation or imposing obligations with respect to obtaining insurance, are to be viewed realistically as normal, common-sense efforts by businessmen to allocate between them the cost or expense of risks of property damage. They contemplate that such risks will be covered by insurance, and the only practical feature of such bargains ordinarily is the decision as to who is to bear the cost of insurance * * *.
Applying these rules, the sensible and reasonable construction of paragraph 28 is that each of the parties to the lease undertook at his own expense to secure adequate insurance against loss to his property from fire and, as between them, agreed to look to that insurance alone to recoup any loss and to relieve the other from liability for such loss even though caused by negligence, regardless of whether that liability should be asserted by the party for his own benefit or by his insurer seeking to enforce subrogation rights. It is immaterial that there was no express exculpatory clause in favor of the tenant. * * (97 N. J. Super., at pp. 123-124)

To paraphrase what Justice Jacobs said in Mayfair I, it cannot fairly be doubted that when the parties allocated the obligation to insure they had in mind insurance against fires caused by human negligence, as most of them are, as well as fires resulting from so-called acts of God. What was said in the Mayfair cases is even more plainly true here, for here the tenant bought and paid for the insurance.

The order denying summary judgment is reversed and the case is remanded to the trial court for the entry of judgment in favor of defendant Wolek.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD K. KRAMMES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 14, 1969
    Decided April 25, 1969.

      Before Judges Gaulkin, Collester and Labrecque.

      Mr. Bichard J. Schachter argued the cause for appellant (Messrs. Halpern, Schachter & Wohl, attorneys).

      Mr. Raymond R. Trombadore, Assistant Prosecutor, argued the cause for respondent (Mr. Michael R. Imbriani, County Prosecutor, attorney).
   Per Curiam.

Defendant was convicted in the municipal court of violation of N. J. S. A. 39:3-76.7, which requires the operator of a motorcycle to wear a protective helmet. Eollowing a trial de novo in the County Court the conviction was affirmed and a fine of $10 was imposed. He appeals.

The sole ground of appeal is that N. J. S. A. 39 :3-76.7 is unconstitutional. Defendant argues that the purpose of the legislation is to protect the individual motorcyclist and not the general public, and the requirement that he must wear a protective helmet exceeds the police power of the State. He relies primarily on American Motorcycle Asosciation v. Davids, 158 N. W. 2d 72 (Mich. Ct. App. 1968), which held unconstitutional a similar statute.

We do not find the Davids ease to be persuasive. We conclude that the statute bears a real and substantial relationship to highway safety generally and does not constitute an improper exercise of the police power. See State v. Mele, 103 N. J. Super. 353 (Cty. Ct. 1968); Commonwealth v. Howie, 238 N. E. 2d 373 (Mass. Sup. Jud. Ct. 1968), certiorari denied 393 U. S. 999, 89 S. Ct. 485, 21 L. Ed. 2d 464 (1968); State ex rel. Colvin v. Lombardi, 241 A. 2d 625 (R. I. Sup. Ct. 1968); State v. Anderson, 3 N. C. App. 124, 164 S. E. 2d 48 (Ct. App. 1968) ; Everhardt v. City of New Orleans, 253 La. 285, 217 So. 2d 400 (Sup. Ct. 1968); People v. Carmichael, 56 Misc. 2d 388, 288 N. Y. S. 2d 931 (Cty. Ct. 1968); People v. Schmidt, 54 Misc. 2d 702, 283 N. Y. S. 2d 290 (Cty. Ct. 1967).

Affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WALTER D. KINSLEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 14, 1969
    Decided April 30, 1969.
    Before Judges Sullivan, Polly and Lewis.

      Mr. Martin A. Herman argued the cause for appellant.

      Mr. Joseph P. Schiappa, Deputy Attorney General, argued the cause for respondent {Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Stephen STdllman, Deputy Attorney General, of counsel).
   Pel Cukiam.

The Gloucester County Court adjudged defendant guilty of violating N. J. S. A. 23 :5-28. That section proscribes the pollution of water by permitting deleterious or poisonous substances to be turned into or allowed to run into any of the waters of this State in quantities sufficient to destroy life or disturb the habits of fish or birds inhabiting the same. The statutory fine of $500 for the first offense was imposed. Defendant appeals.

We affirm substantially for the reasons set forth in the opinion of Judge Kramer for the County Court, whose opinion is reported in 103 N. J. Super. 190 (Cty. Ct. 1968).

Sullivan, S. J. A. D.

(concurring) Defendant has not raised the defense of double jeopardy (he was found not guilty of the charge in the municipal court). See Dept. of Conservation & Economic Development v. Scipio, 88 N. J. Super. 315 (App. Div. 1965), certification denied 45 N. J. 598 (1965). On this basis I vote to affirm.