author: Herbert, J. S. C.

text:
    THE PROGRESSIVE ACTION COORDINATING TEAM, AN UNINCORPORATED ASSOCIATION, ET AL., PLAINTIFFS, v. CITY OF ORANGE, NEW JERSEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided May 27, 1970.

      Mr. Melvyn H. Bergstein argued the cause for plaintiffs (Messrs. Silverman & Bergstein, attorneys).

      Mr. Jeffrey R. Lowe argued the cause for defendants.
   Herbert, J. S. C.

This is an action testing the constitutional validity of a licensing ordinance of the City of Orange. The plaintiffs are The Progressive Action Coordinating Team (“PACT”), a politically motivated association, and various individuals who are presumably members of PACT. Named as defendants are the City of Orange, its mayor, its director of public safety, and its chief of police.

The action was commenced by a complaint and order to show cause. Initially both temporary and permanent relief were sought. The temporary relief asked was a restraint against interfering — solely on the basis that plaintiff had not obtained a permit — with certain activities scheduled for December 1969 and sponsored by PACT for the purpose of protesting American involvement in the conflict in Vietnam. That relief was granted and the questions raised with regard to temporary restraints are now moot. By way of permanent relief plaintiffs seek a declaratory judgment that the Orange ordinance is unconstitutional and an injunction against its enforcement. The claim of unconstitutionality is based entirely on the ordinance as written, and not as it has been applied. That being so, the parties have agreed, with the approval of the Court, to have the case summarily considered. Briefs have been submitted by counsel on each side, each brief containing an identical stipulated statement of facts and a detailed discussion of the law.

The provision in question is Section 5 of an ordinance enacted by the City of Orange on or about August 17, 1954, entitled “Aggregations of People.” Section 5 reads as follows:

No parades or other prearranged aggregations of people shall he permitted on (he streets or sidewalks of ihe City of Orange until written permission for (he same shall have been obtained from the Director of the Department of Public Safety. Requests for such permission must be made in writing and must specify the route to be taken, the time and purpose of the parade, the sponsor or such other information as shall be required by said Director for such parade or aggregation except as provided under Section 39:43-197.1 [39:4-197.1] of the revised statutes.

Plaintiffs argue that this provision is invalid on two related grounds. Pirst, they say, it is a “previous restraint” on the freedoms of speech and assembly in violation of the Pirst and Fourteenth Amendments to the United States Constitution. Second, it is violative of the Fourteenth Amendment’s “due process” clause, because it fails to specify the standards by which the Director of Public Safety should guide himself in exercising his discretion on the issuance of permits. Defendants, on the other hand, remind the court that the freedoms of speech and assembly are not absolute; they contend that Section 5 does not place unbridled discretion in the director, but rather constitutes a reasonable and valid exercise o£ police power by a municipality trying to cope with such real problems as crowd control and flow of traffic.

The case at hand is not without precedent. Various ordinances similar to Section o of the Orange ordinance have been tested in the courts in the past, and a number of them have reached, and been finally determined by, the United States Supreme Court. In almost all of these cases, the ordinances have been struck down on the grounds urged here by plaintiffs.

Hague v C. I. O., 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), involved a Jersey City ordinance prohibiting “public parades or public assembly in or upon the public streets, highways, public parks or public buildings” without a permit issued by the Director of Public Safety. The ordinance provided in part:

8. The Director of Public Safety is hereby authorized to refuse to issue said permit when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage. [307 U. S. at 502, 59 S. Ct. at 958]

Although there was no majority opinion, the Supreme Court having been divided over the proper scope to be accorded to the Fourteenth Amendment’s “privileges and immunities” clause, it is clear from the separate opinions that a majority of the justices concluded that the Jersey City ordinance was void on its face. As Mr. Justice Roberts stated, speaking for himself and Mr. Justice Black:

We think the court beiow was right in holding the ordinance . . . void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent “riots, disturbances or disorderly assemblage." It can thus, as the record discloses, be ma.de the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly “prevent” such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. [307 U. S. at 516, 59 S. Ct. at 964]

In Saia, v. New York, 334 U. S. 558, 68 S. Ct. 1148, 92 L. Ed. 1574 (1948), the Supreme Court considered a municipal ordinance prohibiting the use of sound amplifying devices on the streets and in public places. The ordinance contained this exception to the general proscription:

Section 3. Exception. — Public dissemination, through radio loudspeakers, of items of news and matters of public concern and athletic activities shall not be deemed a violalion of this section provided that the same be done under permission obtained from the Chief of Police [334 U. S. at 558, 68 S. Ct. at 1148]

The majority opinion was written by Mr. Justice Douglas, who said in part:

We hold that § 3 of this ordinance is unconstitutional on its face, for it establishes a previous restraint on the right of free speech in violation of the First Amendment which is protected by the Fourteenth Amendment against State action. To usa a loud-speaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion. The statute is not narrowly drawn to regulate the hours or places of use of loudspeakers, or the volume of sound (the decibels) to which they must be adjusted. The ordinance therefore has all the vices of the ones which we struck down in Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 ALR 1352; Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949, and Hague v. Committee for Industrial Organization, 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423. [334 U. S. at 559-60, 560, 68 S. Ct. at 1149]

Kunz v. New York, 340 U. S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951), dealt with a city ordinance requiring a permit for assemblages of persons for public worship, but which did not specify the reasons for which the issuance of permits could be refused. The ordinance was held unconstitutional in a majority opinion written by Chief Justice Vinson:

It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights. [340 U. S. at 293, 71 S. Ct. at 314]

Niemotko v. Maryland, 340 U. S. 268, 71 S. Ct. 325, 328, 95 L. Ed. 267 (1951), and Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), did not deal with licensing ordinances, but both decisions contain language relevant here. In Niemotko the Supreme Court reversed disorderly conduct convictions of Jehovah’s Witnesses who had used a public park for Bible talks without a permit. Chief Justice Vinson wrote for the Court:

This Court has many times examined the licensing systems by which local bodies regulare the use of their parks and public places * * * In those cases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must bo invalid. * * * In the instant case we are met with no ordinance or statute regulating or prohibiting the use of the park; all that is here is an amorphous “practice,” whereby all authority to grant permits for the use of the park is in the Park Commissioner and the City Council. No standards appear anywhere; no narrowly drawu limitations; no circumscribing of this absolute power; no substantial interest of the community to be served. It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here. [340 U. S. at 271-272, 71 S. Ct. at 327]

In Cox Mr. Justice Goldberg’s majority opinion considered tbe application and enforcement of a Louisiana statute prohibiting the obstruction of public passages:

Although the statute here involved on its face precludes all street assemblies and parades, it has not been so applied and enforced by the Baton Rouge authorities. City officials who testified for the State clearly indicated that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained.
* * -> * * * * *
The statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. Prom all the evidence before us it appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion.
* * tfi
A long line of cases in this Court makes it clear that a State or municipality cannot “require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be * * * disseminate [d] * * *” Schneider v. State, supra, 308 U. S. 147, at 164, 60 S. Ct. 146, at 152, 84 L. Ed. 155, at 166.
* * * >> * * *
This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for tlie suppression of (he communication of ideas and permits the official to act as a censor.
It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. [379 U. S. at 555-558, 35 S. Ct. at 464]

A New Jersey case in point is State v. Corbisiero, 67 N. J. Super. 170 (Law Div. 1961), in which Judge Eosen declared unconstitutional two sections of an ordinance prohibiting various activities conducted in a public park without prior written permission of the Hudson County Park Commission. After a lengthy discussion of the cases on the ,subject, Judge Eosen concluded:

No standards of any hind are provided in this ordinance to guide the commission, the body vested with the power of ultimate decision, in approving or disapproving the issuance of a license. The purported power vested in the Commission in this respect is entirely unrestrained. No norm or standard of even minimal sufficiency is provided. * * * The ordinauce, which purports to be “rules and regulations,” gives the Commission uncontrolled and limitless discretion in the administration and enforcement of sections 4 and 20 of said ordinance.
Sections 4 and 20 of ordinance No. 1 are invalid. They impair and abridge defendant's rights and liberties guaranteed by the First and Fourteenth Amendments to The United States Constitution. [67 N. J. Super, at 187]

The cases cited and discussed above clearly demonstrate the consttiutional invalidity of any licensing ordinance that allows an administrative official, in his uncontrolled discretion, to permit or deny the exercise of freedoms protected by the Bill of Eights. The fundamental infirmity of such an ordinance is in no way dependent on an actual abuse of the discretion accorded; it is simply that the discretion is susceptible to abuse.

Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941), relied on by the City of Orange as authority to the contrary, is inapposite. In Cox, the United States Supreme Court considered a New Hampshire statute as it had been construed by the highest court of that state. The statute on its face prohibited parades or processions upon public streets without a special license, and it contained no standards to be applied in the issuance of licenses. However, the New Hampshire Supreme Court had narrowly construed the statute to apply only to “organized formations of persons using the highways,” and not to any other means of communicating ideas on the public streets. Further, the state court had limited the decision on the issuance of a license to considerations of time, place, and manner, so that the statute as applied was not without standards. It was under these circumstances that the United States Supreme Court held that the municipality “cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets.” 312 U. S. at 576, 61 S. Ct. at 765.

Section 5 of the Orange ordinance prohibits “prearranged aggregations of people” on the public streets and sidewalks “until written permission for the same shall have been obtained from the Director of the Department of Public Safety.” As is clear on its face, and as the City of Orange concedes, the ordinance sets forth no standards to guide the Director in the exercise of his discretionary power to grant or withhold the requisite permission. Judged by the principles enunciated here and in the cited cases, the ordinance must be held invalid.

In light of the result reached here, it is not necessary to decide plaintiffs’ contention that Section 5 is also constitutionally defective because it requires that requests for a permit must specify, in addition to location and time, the purpose and sponsor of the proposed “aggregation of people,” as well as “such other information as shall be required” by the Director. It is to be noted, however, that this provision calls for information that goes beyond the proper considerations of “time, place and manner” sot forth in Cox v. New Hampshire, supra.

In conclusion, it should be emphasized that this decision deals with the method, i. e. the ordinance, by which the City of Orange has sought to exercise its capacity to cope with problems stemming from aggregations of people on streets and sidewalks, and does not question the existence of power to control if properly exercised.

As Mr. Justice Goldberg said for the majority in Cox v. Louisiana, supra, [379 U. 8. at p. 554, 85 S. Ct. at p. 464] after citing a list of authorities:

“Prom these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriciion in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.”

If, in practice, an aggregation of people should cause property damage, obstruct store entrances or the flow of traffic, or in any other way disturb the peace, there is no reason why action might not then be taken in accordance with ordinary police procedures to redress the situation.


source: Caselaw Access Project

author: Fritz, J. S. C.

license: Public Domain

text:
    A. T. E. FINANCIAL SERVICES, INC., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. J. DOUGLASS CORSON AND HARRY N. HAND, PARTNERS TRADING AS CORSON AND HAND. AND J. DOUGLASS CORSON, INDIVIDUALLY, AND HARRY N. HAND INDIVIDUALLY ; MARINE NATIONAL BANK OF WILDWOOD, NEW JERSEY, A NATIONAL BANKING CORPORATION, TRUSTEE; DAVID C. INGERSOLL AND BENJAMIN C. INGERSOLL, III; ELLIS LOTHEIM, TRUSTEE FOR BOOKFIELD HOME MODERNIZERS, INC., A NEW JERSEY CORPORATION; GEORGIA M. SUMMERS AS ADMINISTRATRIX OF THE ESTATE OF FROST SUMMERS, DECEASED; NATIONAL NEWARK & ESSEX BANK, A NATIONAL BANKING ASSOCIATION; GUARANTEE BANK & TRUST COMPANY, A BANKING CORPORATION OF NEW JERSEY; DEE LUMBER CO. AND JAMES S. HESTON; AND MARINE NATIONAL BANK OF WILDWOOD, NEW JERSEY, A NATIONAL BANKING CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 10, 1970.

      Mr. James A. Scarpone argued the cause for plaintiff (Messrs. Hellring, Lindeman & Landau, attorneys).

      Mr. Maurice M. Hayman argued the cause for defendants J. Douglass Corson and Harry N. Hand, individually, and Corson and Hand, a partnership (Messrs. Hayman and Gorelick, attorneys).

      Mr. Robert E. Kay argued the cause for defendant Marine National Bank of Wildwood, New Jersey (Messrs. Kay and Corino, attorneys).
   Fritz, J. S. C.

This is a mortgage foreclosure action. Defendant Marine National .Bank contests plaintiff’s right to foreclosure on the basis that plaintiff, A. T. E. Financial Services, Inc., being a limited partner of defendants-mortgagors at the time the mortgage was given, is proscribed from the taking of such a security by the terms of N. J. S. A. 42 :2—17. This defendant seeks summary judgment to that effect. The sole issue on this motion concerns itself with construction of N. J. S. A. 42:2-17.

For the purposes of this motion, it appears that plaintiff-mortgagee was in fact a limited partner of defendants-mortgagors at the time the mortgage was given. This relationship, as a matter of fact, seems to have sprung from the financial transaction then occurring, which included the lending of money by plaintiff to defendants-mortgagors. Whether defendants-mortgagors at the time of this transaction had sufficient assets to discharge their other liabilities remains as a fact question.

The statute involved, enacted in New Jersey as a part of the Uniform Limited Partnership Law, is N. J. S. A. 42:2-17, and is as follows:

-12:2-17. Loans and other transactions with limited partner
1. A limited partner also may loan money to and transact other business with the partnership, and, unless he is also a general partner, receive on account of resulting claims against the partnership, with general creditors, a pro rata share of the assets. No limited partner shall in respect to any such claim
a. Receive or hold as collateral security any partnership property, or
b. Receive from a general partner or the partnership any payment, conveyance, or release from liability, if at the time the assets of the partnership are not sufficient to discharge partnership liabilities to persons not claiming as general or limited partners.
2. The receiving of collateral security, or a payment, conveyance, or release in violation of the provisions of paragraph “.1.” of this section is a fraud on the creditors of the partnership.

Defendant’s contention is that subparagraph (a) is absolute. Plaintiff contends that it is limited, with subparagraph (b), by the last clause of subparagraph (b). Neither counsel nor the court has found any illuminative New Jersey eases.

We are persuaded by the reasoning of Hughes v. Dash, 309 F. 2d 1 (5 Cir. 1962), and agree with it that the qualification in question was designed by the Legislature to limit the effect of both subparagraphs (a) and (b).

Paragraph 2 of the statute, in our view, clearly substantiates the determination in the Hughes case that the statute “was designed to prevent illegal competition between the limited partner and creditors of the partnership for the assets of the partnership.” That intention is further demonstrated by the Commissioners’ Note following section (1) of the Uniform Act, where the entire purpose of section (13) [N. J. S. A. 42:2-17] is explained as follows:

The limited partner is not debarred from loaning money or transacting other business with the partnership as any other non-member; provided he does not, in respect to such transactions, accept from the partnership collateral security, or receive from any partner or the partnership any payment, conveyance, or release from liability, if at the time the assets of the partnership are not sufficient to discharge its obligations to persons not general or limited partners (Sec. 13).

Such competition is not a threat unless there is an insufficiency of partnership assets with which to discharge partnership liabilities to nonpartner creditors.

Defendant’s contention implies a legislative intent to prohibit under any circumstances the taking of collateral security by a limited partner of any partnership property. Nothing in the statute suggests that the legislative intent was that broad. The purpose of the enactment conduces to a contrary conclusion.

Inasmuch as factual questions remain with respect to whether or not the assets of the partnership were at the time sufficient to discharge partnership liabilities to persons not claiming as general or limited partners, the motion for summary judgment must be denied.

An appropriate order may be submitted.


author: Wick, J. S. C.

text:
    FACULTY AD HOC OCTOBER 15TH VIET NAM MORATORIUM COMMITTEE, EDWARD L. WOLFE, ROSE PRIMACK AND RODNEY GATES, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. BOROUGH OF GLASSBORO, WILLIAM L. DALTON, AS MAYOR OF BOROUGH OF GLASSBORO, COUNCIL OF BOROUGH OF GLASSBORO, AND EVERETT WATSON, POLICE CHIEF OF BOROUGH OF GLASSBORO, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 15, 1970.

      Mr. Arthur Frakt, Chairman, American Civil Liberties Union of South Jersey, and Mr. David H. Dugan, III, Director, Camden Regional Legal Services, Inc, attorneys for plaintiffs {Mr. Leonard H. Wallach, of counsel).

      Mr. Milton L. Silver for defendants.
   Wick, J. S. C.

This is an action to determine the validity of a municipal ordinance governing parade permits.

On October 15, 1969 a eompiaint was filed directly with this court seeking temporary and permanent restraints against certain public officials. The facts as represented in the complaint and affidavits were as follows. October 15, 1969 was designated by various groups throughout the country to be a day of petition and protest against the United States’ involvement in Viet Nam. To participate in this event, various persons created plaintiff unincorporated association to organize a program for October 15 in and around Glassboro State College in the Borough of Glassboro. One of the planned events was to be a parade or march from Holly-bush on the Glassboro campus to the Pitman Armory.

Glassboro in 1968 adopted an ordinance titled “An ordinance regulating parades and other similar uses of public places and the issuance of permits and provide standards for the issuance thereof and prescribing penalties for violation thereof,” which requires a permit to hold a parade. On October 3, 1969 application was made to the borough and to the State Department of Transportation for permission to hold the parade. The rules governing the filing of such applications were observed and no objection was made by either the mayor or chief of police. On October 10, 1969 the State Department of Transportation rejected the use of state highways for the parade without stating its reasons. On October 13 an amended application for a parade permit was filed with the chief of police which encompassed only local roads and did not require the State’s approval. The police chief at that time commended the leaders on their planning of the march, leading them to believe the permit would be granted. At 8 p.m. on October 14 the borough council met to consider the parade permit and voted 5-1 to reject the application.

Since the ordinance specifically left the decision on such applications to the chief of police and public safety committee and provided for rejection to be given at least five days before the date of the parade, the court felt the late rejection to be arbitrary and violative of plaintiffs’ rights. An injunction was issued staying the enforcement of the ordinance and ordering the officials to permit the parade.

Although the issue is now moot, both parties agreed to submit memoranda for a final determination by the court on the constitutionality of the ordinance. Since the Borough of Glassboro is a college town, there is a great likelihood that this same type of situation will arise again. The ordinance is therefore in need of interpretation to prevent future attacks upon it. The issue has been squarely presented and will be decided.

Section 4(B) of the ordinance sots forth information that must be included in the application for a parade permit. Subsections 1 to 12 require information on the leadership and organization conducting the parade, the date, time, size, route, etc., all directed towards allowing a determination of the effect of the parade on traffic, ñre and ambulance service, police protection and other permissible considerations. Plaintiffs have no quarrel with these provisions but object to subsection 13 which provides for “Any additional information which the Chief of Police shall find reasonably necessary to a fair determination as to whether a permit should issue.”

Plaintiffs’ brief states, “The areas of legitimate inquiry concerning the holding of a parade arc fully and exhaustively enumerated in Section B 3-12 of the Glassboro Parade Ordinance.” The court disagrees. The municipality undoubtedly recognized that it could not foresee every type of situation that might arise and wished to allow the chief of police to ask certain questions to be able to judge those circumstances. For example, suppose an application was for a night parade, then the chief of police would want to know what lighting was going to be involved. If lighter than air floats were involved, their height might be important to determine clearance under bridges, traffic signals, etc. If the line of march was to be close to a hospital, then the type of noise instruments or sound apparatus would be a proper consideration.

The court feels that section 4(B) (13) is valid so long as it is read in pari materia with the provisions it follows. Plaintiffs fear this provision allows the chief of police to inquire as to the beliefs and principles of the organization holding the parade or the identities of the members of the organization. These factors are not relevant to the standards for issuance of the permit (section 6) and are not properly within the scope of section 4(.B) (13). To be constitutional, section 4(B) (13) is interpreted to be limited to information bearing on whether or not a permit should issue, as set out by section 5.

Section 5 provides nine criteria to be observed in deciding whether a permit should issue. Such matters as traffic, fire and ambulance service, police protection, etc., are mainly involved, and with these plaintiffs have no concern. Only section 5(f) is contested, which provides:

The conduct of the parade is not reasonably likely to cause injury to persons or property, to provoke disorderly conduct or create a disturbance.

This provision can only be interpreted as allowing the public officials to reject a parade permit if they feel others may disagree with the views expressed and create a disturbance.

At one time such a provision would have been upheld as within the police power to prevent a public disturbance. Thomas v. Casey, 121 N. J. L. 185 (Sup. Ct. 1938), aff’d 123 N. J. L. 447 (E. & A. 1939), although State v. Butterworth, 104 N. J. L. 579 (E. & A. 1928), despite some of its language, suggests a different result, and American League, etc., Hudson Cty. v. Eastmead, 116 N. J. Eq. 487 (Ch. 1934), indicates a contrary position.

Whatever the law may have been at some time in the past, however, the more recent United States Supreme Court decisions make it clear that the constitutional right of free speech and assembly cannot be abridged simply because others may take offense at what is being said or advocated and create a disturbance. See e. g. Bachellar v. Maryland, 397 U. S. 564, 90 S. Ct. 1312, 25 L. Ed. 2d 570 (1970); Street v. New York, 394 U. S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); Shuttlesworth v. City of Birmingham, 394 U. S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Gregory v. City of Chicago, 394 U. S. 111, 89 S. Ct. 946, 22 L. Ed. 2d 134 (1969); Brown v. Louisiana, 383 U. S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966); Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963); Terminiello v. City of Chicago, 337 U. S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1949); cf. Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

N. J. Const. (1947) Art. I, par. 6, provides that

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of tlie press.

And Art. I, par. 18, provides that

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

The provision in question attempts to deny the constitutional rights oí free speech and assembly to those espousing unpopular views and is therefore invalid.

In Hague v. Committee for Industrial Organization, 307 U. S. 496, 59 S. Ct. 964, 83 L. Ed. 1423 (1939), a Jersey City ordinance was held invalid which provided:

3. The Director of Public Safety is hereby authorized to refuse to issue said permit when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage. [307 U. S. at 503, 59 S. Ct. at 958, n. 1].

In ruling that the provision was unconstitutional the court said :

We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent ‘riots, disturbances or disorderly assemblage.’ It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly ‘prevent’ such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. [Id. at 516, 59 S. Ct. at 964]

Section 5(f) of the present ordinance is similar to the ordinance construed in Hague and must be deemed invalid for placing too much discretion in a public official as condemned above and in Shuttlesworth v. City of Birmingham, supra; Cox v. Louisiana, supra; Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed 1049 (1941).

The court directs defendants to repeal section 5(f) of the ordinance in question.


author: Mintz, J. S. C.

text:
    BANKERS NATIONAL LIFE INSURANCE COMPANY, A LIFE INSURANCE CORPORATION OF NEW JERSEY, PLAINTIFF, v. RITA COOPER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided July 29, 1970.

      Mr. Roger H. McGlynn for plaintiff (Messrs. McGlynn, Stein & Eberiel, attorneys).

      Mr. Jerome C. Eisenberg for defendant (Mr. William J. O’Shaughnessy on the brief; Messrs. Clapp & Eisenberg, attorneys).
   Mintz, J. S. C.

Bankers National Life Insurance Company (Bankers) instituted this action against Eita Cooper, the named beneficiary in an insurance policy issued by Bankers on the life of her deceased husband, Seymour Cooper (insured). Plaintiff seeks to rescind the policy alleging that it had lapsed for non-payment of a premium due April 5, 1967 and that in an application made on June 5, 1967 to reinstate the policy, the insured made a false representation that he had not been treated by a physician since the effective date of the policy. At the trial defendant conceded that the insured made a material misrepresentation in his application for reinstatement which would entitle plaintiff to rescind the policy. However, she contends that the premium due April 5, 1967 was paid on or about April 12, 1967 well within the 31 day grace period. Hence, she asserts the policy did not lapse for non-payment of a premium and the reinstatement application is irrelevant. She counterclaims for the proceeds of the policy.

The policy in the amount of $50,000 was issued to Seymour Cooper on October 5, 1966 and provided for quarterly premiums of $344.10 payable on January 5, April 5, July 5 and October 5 of each year with a 31 day grace period. If any premium remained unpaid at the end of the grace period, the policy lapsed as of the due date. If a lapse occurred as the result of a default in a premium payment, the policy provided for reinstatement at any time within five years of the default upon receipt by Bankers of a satisfactory reinstatement application and upon the payment of all overdue premiums plus interest.

In conformity with the provisions of the policy, Bankers, contending that it had not received the April 5, 1967 premium payment, caused the policy to lapse. A lapse notice and a reinstatement application were forwarded to the insured after the expiration of the grace period. The lapse notice stated that to apply for reinstatement all questions on the reinstatement application must be answered. Said notice and application were sent to the insured c/o Windsor Cleaners, Inc. (Windsor) at its address in Newark, New Jersey. Windsor paid, the insurance premiums for policies on the lives of three of its officers, Sara Brooks, President, Jack Brooks her son, Executive Vice President, and the insured, its former Executive Manager. The reinstatement application was returned to Bankers at its home office in Montclair, New Jersey accompanied by a check in payment of the premium drawn by Windsor and dated June 1, 1967 (but received by Bankers on May 31, 1967). There was also enclosed a handwritten note from the insured which stated:

“Please check your records as we did not get notice of premium due.
/s/ S. Cooper”

The reinstatement application was unacceptable to Bankers because the insured failed to specifically answer each question but instead made the notation across its face, “No change since original application.” A second application dated June 5, 1967 and signed by the insured was approved by Bankers and a letter dated June 7, 1967 was forwarded to him to the effect that the policy had been reinstated. In the reinstatement applications the insured acknowledges that the policy lapsed for non-payment of the premium due on April 5, 1967.

The policy includes the standard incontestability clause which provides that the policy shall be incontestable, escept for the non-payment of premiums, after it has been in force during the insured’s lifetime for a period of two years from its date of issue. The reinstatement application provides, however, that if after the policy lapses, it is reinstated, the incontestability provisions of the policy “shall run anew from the date of such reinstatement, but only with respect to the statements and answers contained in (the) application.”

The insured died on November 4, 1968 within two years from the effective date of the reinstatement application. The cause of death was a malignant brain tumor. Thereafter, the defendant submitted proof of claim to the plaintiff. Having discovered that decedent made a material misrepresentation in his reinstatement application, plaintiff elected to rescind the policy and notified defendant of such election. However, if the policy did not lapse, the misrepresentation in the reinstatement application was irrelevant and the policy became incontestable on October 5, 1968.

Thus, the basic issue is whether the policy lapsed for nonpayment of the premium due April 5, 1967. Defendant asserts that on April 13, 1967 a check representing the quarterty premium due April 5, 1967 was mailed by Windsor to Bankers at its home office. This check, she contends, was never presented for payment nor returned for non-delivery and was either lost in the mails or lost by plaintiff.

Plaintiff argues that the April 5, 1967 premium was not paid within the grace period and that the application for reinstatement was necessary and concededly fraudulent. Plaintiff further alleges that even if the defendant proves the April 5, 1967 premium payment was mailed in due time, it never received said payment and the risk of loss in the mail is on the insured. The policy provides:

PAYMENT OP PREMIUMS — All premiums are payable on or before their due dates either to the Company at its Home Office or to an authorized representative of the Company, in exchange for a receipt signed by the President or Treasurer of the Company and duly countersigned.

Counsel for the plaintiff frankly indicated that it did not customarily remit a receipt for the payment as called for in the quoted provision.

The premiums on the policy insuring the life of the insured were to be paid by Windsor. All premium notices were sent to him c/o Windsor. The April 5, 1967 premium notice was received by Windsor and upon its face is a notation that it was paid by check No. 156 on April 12, 1967. Mr. Jack Brooks and Miss Lee Morer, Windsor’s bookkeeper for many years, testified as to the ordinary business practices of Windsor regarding the payment of bills. On the 10th of each month Mr. Brooks reviewed the bills and approved same for payment. Bills approved by him were given to Miss Morer who drew the checks. They were written in order and automatically entered in the check register by the very process of being written. Thereafter, she gave the checks to Mr. Brooks who signed and returned them to her. Miss Morer sealed and stamped the envelopes after the checks were inserted therein and at the end of that business day, she deposited the mail at the post office near Windsor, traffic permitting, or in a mailbox near her home.

Since October 1966 Windsor has used the “Datamart” system of writing checks. As the check is written, it is entered on a carbon copy which acts as a cheek register and which indicates the payee, date, amount and number of the cheek without, however, the signatures reflected thereon. The check register indicates check Ho. 156 was made payable to the order of Bankers on April 13, 1967. I am satisfied that said check for $344.10 was to pay the quarterly premium due April 5, 1967 on the insured’s policy. Windsor’s bank account for the month of April had substantial funds at all times to cover this check. Mr. Brooks testified that he specifically recalled signing check Ho. 156 and giving it to Miss Elorer. She testified that if Mr. Brooks gave her the signed check on April 13, she mailed it on that date and referred to her handwritten notation on the premium notice that the premium was paid April 13, 1967 by check Ho. 156. On cross-examination she stated that she was not sure if Mr. Brooks returned the April 13, 1967 check to her for mailing. She further indicated that on occasion Mr. Brooks would retain checks for three or four days and then return them to her for mailing.

Bankers forwards an I.B.M. payment card and a return envelope with all premium notices. Windsor took advantage of forwarding its premium payments in that envelope to Bankers. Said envelope has a cellophane strip through which Bankers’ address on the I.B.M. card is visible. In the upper left-hand corner of the envelope there is printed Bankers’ name and address. Admittedly, check Ho. 156 was never presented for payment nor returned for non-delivery.

Windsor maintained an account in First Hational State Bank of New Jersey. The printed form of the check provided for two authorized signatures. The practice of cosigning checks during the period in question was not mentioned at the trial. Apparently, commencing July 1967 checks drawn on Windsor’s account required only one signature, that of Sara Brooks or Jack Brooks. However, each of the seven checks introduced into evidence covering the decisive period April 10, 1967 through April 14, 1967 and numbering 151 through 158 inclusive (except check Ho. 156) contained two authorized signatures, that of Jack Brooks and either Sejunour Cooper or Lee Florer. Six of the checks were co-signed by Mr. Brooks and Seymour Cooper. The other check contains the authorized signatures of Jack Brooks and Lee Morer. Those checks were presented for payment and honored. Defendant thinks it significant that check No. 155 payable to First National State Bank and dated April 12, 1967 was presented for payment. The court is asked to infer that since check No. 155 was mailed, check No. 156 dated the same day must also have been mailed. Check No. 155 carries the co-signature of Seymour Cooper.

Mr. Brooks testified that payment was stopped on the crucial check No. 156 subsequent to the end of the grace period when notified that said premium payment was not received by Bankers. No written order was produced at the trial, although Mr. Brooks indicated it was available. See N. J. S. A. 12A:4-403(2). That outstanding check was voided by Windsor’s accountant at the end of September or early October 1967.

Miss Eleanor Farrell, director of premium operations at Bankers during the period in question, testified that Bankers did not receive payment for the April 5 premium until the submission of the first reinstatement application on May 31, 1967. Miss Farrell examined the microfilm records of Bankers from April 12 to May 2, 1967. Such records show no premium payment by either Windsor or Seymour Cooper for those dates.

Miss Farrell demonstrated under cross-examination the method by which mail received by Bankers is processed. Bankers receives large quantities of mail each day which is picked up at the Montclair Post Office by two or three employees of Bankers and transported to Bankers’ home office. The mail is brought to a cashier’s cage where it is opened and sorted. Windsor’s check and the I.B.M. payment card if received by Bankers would bo placed in two separate piles. If either the check or card was thereafter lost, the other would be sufficient evidence of payment, but there was no record of a check dated April 12, 1967 or the alleged I.B.M. card having been received.

An insured is not estopped where he had applied for reinstatement under the belief that a policy had lapsed, from showing that no lapse had actually occurred. Sun Life Assur. Co. of Canada v. Wiley, 258 Ky. 311, 79 S. W. 2d 937 (Ct. of App. 1935). See also McNaughton v. Des Moines Life Ins. Co., 140 Wis. 214, 122 N. W. 764 (Sup. Ct. 1909); Security Mutual Life Insurance Co. v. Arenstein, 32 A. D. 2d 899, 302 N. Y. S. 2d 191 (Sup. Ct. App. Div. 1969); 3A Appleman, Insurance Law and Practice § 1861 (1967). But cf. Struhl v. Travelers Ins. Co., 255 App. Div. 527, 7 N. Y. S. 2d 881 (Sup. Ct. App. Div. 1938), aff'd 281 N. Y. 584, 22 N. E. 2d 162 (Ct. of App. 1939). While acquiescence or estoppel cannot be found from the conduct of the insured in submitting two reinstatement applications, his actual acknowledgment in those applications of a lapse of the policy for non-payment of the premium due on April 5, 1967 is a circumstance to be considered in determining whether or not the policy did in fact lapse.

As already observed, plaintiff contends that under the terms of the policy, payment is not effected until the premium is received at its home office and that the risk of its loss in the mails is on the insured. However, the premium notice forwarded to the insured provides that all remittances shall be made payable to the plaintiff and mailed to its home office in Montclair, New Jersey. The notice further provides that the check or draft shall not be considered payment unless and until the amount due is actually received by plaintiff.

The plaintiff authorized and requested the insured to remit the premium by mail. It forwarded envelopes and requested the insured to use them in mailing his premium payments. Once the insurer requests, authorizes or acquiesces in the use of the mails for remitting premiums, it adopts the postal authorities at its agent and assumes the responsibility for postal negligence. Therefore, the risk of loss of a duly mailed premium payment is on the plaintiff. Primeau v. National Life Ass’n, 77 Hun 418, 28 N. Y. S. 794 (Sup. Ct. 1894), aff'd 144 N. Y. 716, 39 N. E. 858 (Ct. of App. 1895); Kenyon v. Knights Templar & M. Mutual Aid Ass’n, 122 N. Y. 247, 25 N. E. 299 (Ct. of App. 1890); Brown v. Pilot Life Ins. Co., 185 S. C. 334, 194 S. E. 121 (Sup. Ct. 1937); see also Colonial Life and Accident Insurance Co. v. Wilson, 246 F. 2d 922, 927-928 (5th Cir. 1957), certif. den. 355 U. S. 927, 78 S. Ct. 384, 2 L. Ed. 2d 357 (1958); Minnick v. State Farm Mutual Automobile Ins. Co., 4 Storey 125, 54 Del. 125, 174 A. 2d 706 (Super. Ct. 1961); 6 Couch on Insurance 2d § 31:105, § 31:106, and § 31:107 (1961); 14 Appleman, Insurance Law and Practice § 7990 (1944); cf. Struhl v. Travelers Ins. Co., supra, 7 N. Y. S. 2d at p. 884. Of course, if a premium payment is lost in the mails, an insured is not discharged from making good the loss, but he is, however, protected against a forfeiture. Brown v. Pilot Life Ins. Co., supra.

Payment of the premiums on a life insurance policy is a condition precedent to keeping the policy in force and must be proven by the claimant before recovery can be had. Cooper v. Government Employees Ins. Co., 51 N. J. 86, 95 n. 3 (1968); Ruggiro v. Prudential Ins. Co., 113 N. J. L. 561, 563-564 (Sup. Ct. 1934); Moyna v. Prudential Life Ins. Co., 96 N. J. Eq. 293, 296-297 (E. & A. 1924); see also Brown v. New York Life Ins. Co., 59 F. Supp. 721, 724 (D. Ct. N. J. 1943), aff’d 148 F. 2d 524 (3d Cir. 1945). But cf. 44 Am. Jur. 2d Insurance § 1957, pp. 895-896 (1969); contra: Ping v. Unitd States, 105 F. Supp. 843, 846 (E. D. Mich. 1952). In the final analysis the issue is whether or not the defendant has sustained her burden of proof that the premium payment due April 5, 1967 was timely and properly mailed to the insurer. Said burden is not sustained unless the evidence demonstrates the offered hypothesis as a rational inference. Mere guess or conjecture cannot be substituted for legal proof. Joseph v. Passaic Hospital Ass’n, 26 N. J. 557, 575 (1958).

Of course no reason was suggested why the check in question having been drawn should not in the ordinary course of events have been signed and duly mailed to Bankers. However, the following weaknesses are apparent with respect to defendant’s claim. In the first instance, there is the testimony of Bankers’ witness that it has no record of having received the April 12, 1967 check or the alleged accompanying I.B.M. card, which in effect constitutes a denial of receipt. Mr. Brooks is an experienced businessman, and presumably so was the insured. When Mr. Brooks was apprised that the policy had lapsed for non-payment of the April 5 premium, he made no inquiry of Miss Elorer with respect to that particular payment even though he specifically remembers giving check No. 156 accompanied by the I.B.M. card and the Bankers’ envelope to her for mailing. I question his specific recollection of these routine details. Likewise the insured made no inquiry of Miss Elorer with respect to check No. 156. There was no testimony presented as to who, if anyone, co-signed that check. The evidence at best simply indicates that only Mr. Brooks signed it at a time when two signatures apparently were required.

More importantly, the insured did not at any time protest the lapse of his policy and did not, as any reasonable businessman would, inform Bankers of the payment of the premium by Windsor’s check dated April 12, 1967 if that was the fact. Instead, he submitted two reinstatement applications in which he made material misrepresentations, and in each of which he acknowledged that the policy lapsed for non-payment of the April 5, 1967 premium. With the first reinstatement application he enclosed his false handwritten note that the premium notice had not been received. All these factors cast doubt as to whether check No. 156 dated April 12, 1967 was in fact signed and duly mailed to Bankers.

The observation of the court in Szczesny v. Vasquez, 71 N. J. Super. 347, 356-357 (App. Div. 1962) is apposite to the instant situation. The court there indicated that the writing of a letter coupled with evidence of an office custom with reference to the mailing of letters was not under the circumstances there presented sufficient to constitute proof of mailing. So in the instant situation, the drawing of a check coupled with evidence of relevant office practice, does not under the circumstances here presented constitute proof of mailing. Perhaps the pertinent check was never in fact duly signed or if so signed, misplaced in Windsor’s office or lost by Miss Elorer. The check may have gone astray in the mails or it is conceivable that the insurer may have received the check and misplaced or lost the same. But it is sheer speculation under the posture of the proofs to make any determination based upon a preponderance of the evidence as to whether or not the premium payment due April 5, 1967 was timely and properly mailed to Bankers. Proofs which give equal support to each of two inconsistent inferences are insufficient. Cvelich v. Erie Railroad Co., 120 N. J. L. 414 (Sup. Ct. 1938), aff’d 122 N. J. L. 26 (E. & A. 1938), certif. den. 307 U. S. 633, 59 S. Ct. 1033, 83 L. Ed. 1516 (1939). Defendant simply has failed to sustain her burden of proof.

Accordingly, there will be a judgment for rescission of the policy in question and plaintiff will in connection with said relief be obliged to pay to defendant the sum of $2,408.70 representing a return of premiums paid on said policy. Judgment for plaintiff on the counterclaim.

Submit form of judgment in accordance with R. 4:42-1.


author: Leonard, J. A. D.

text:
    DOVER FARMS, INC., A NEW JERSEY CORPORATION, AND MARTIN H. BERNSTEIN, PLAINTIFFS-RESPONDENTS, v. AMERICAN AIR LINES, INC., A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided July 7, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Melvin R. Oake argued the cause for appellant (Messrs. Carton, Nary, Witt Arvanitis, attorneys).

      Mr. Julius Braun argued the cause for respondents (Messrs. Braun & Braun, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant, American Air Lines, Inc., appeals from a judgment entered by the trial court in favor of plaintiff Dover Earms, Inc. in the sum of $2240 plus interest and costs.

Dover Earms, Inc. (hereafter plaintiff), a baby chick hatchery, made arrangements with defendant, an interstate air freight carrier, to transport 8000 baby chicks to the buyer thereof, plaintiff Martin H. Bernstein, at Los Angeles, California, C.O.D.

Pursuant to those arrangements, boxes containing the chicks were delivered by plaintiffs truck to defendant’s air terminal in Newark on April 16, 1968.

Plaintiffs truck driver testified as to the delivery of the boxes of chicks to defendant’s receiving clerk. The driver secured an application — apparently the blank form of an air bill — from an inside clerk and delivered it to the “receiver.” The latter, after weighing the chicks, partially filled out the air bill and returned it to plaintiff’s driver. In turn, he gave the partially completed air bill to the inside clerk, who “filled the rest out.”

The driver further testified that at the same time he also gave the inside clerk a copy of plaintiff’s invoice to which there was attached, by a paper clip, an instruction sheet. The invoice showed the value of the chicks, $2240, defendant’s flight number, and the departure and arrival times. The invoice was signed by defendant’s clerk and returned to him. He also stated that the instruction sheet contained among other things, “how much it was supposed to be insured for.”

Plaintiff’s president testified that an instruction sheet was prepared and attached to the invoice which was given to the driver. It instructed defendant to insure the chicks for the “full value” as noted thereon. Nevertheless, the completed air bill, returned by defendant’s clerk to plaintiff’s driver, contained no “Declared Value.” It merely disclosed 81 boxes at a total weight of 950 pounds, a weight rate shipping charge of $418.30, and a total charge of $439.96.

Defendant presented no witnesses and did not deny negligence in the transportation of the chicks. Eirst, it argued that the air bill was clear on its face and that since no declared value was set forth thereon, defendant’s filed tariff (Rule 52) limited plaintiff to a recovery of 500 per pound or a total of $475. Next, it contended that plaintiff’s action was barred by Rule 60 (c) (1) of its filed tariff until the freight charges have been paid.

The trial court found as follows:

It is true that the Civil Aeronautics Board tariff (Rule 60(c) (1)) provides that “no claim for loss or damage to a shipment will be entertained until all transportation charges thereon have been paid.” In this case the plaintiff was not charged with nor informed of the proper transportation charges because of the error of defendant’s agent and the defendant [sio, plaintiff] has not yet been so informed. Therefore the Court holds that the aforementionel rule does not apply.
❖ * * J¡C> * * *
Since the defendant failed to follow the instructions of the plaintiff’s agent with regard to the manner in which the domestic airbill should have been completed and the same was therefore not properly prepared in one of its essentials, the provisions of the Civil Aeronautics Board tariffs do not apply.

The court thereupon concluded that there being no evidence to the contrary, plaintiff’s shipment was lost due to defendant's negligence. Accordingly, judgment was entered in favor of plaintiff in the amount of $2240.

Defendant now contends that the trial court erred in not applying its filed tariff and limiting its liability to $475. It supports this contention with the same above-noted argument as it presented to the trial court.

Since defendant was an air carrier engaged in the interstate transportation of passengers and freight, the transportation of plaintiff’s chicks to California was controlled by federal rather than state law. Berkman v. Trans World Airlines, Inc., 209 F. Supp. 851 (S. D. N. Y. 1962); Milhizer v. Riddle Airlines, Inc., 185 F. Supp. 110 (E. D. Mich. 1960), aff’d on opinion below, 289 F. 2d 933 (6 Cir. 1961). See also, Silvers v. Penna. R. R., 89 N. J. Super. 475, 478-479 (App. Div. 1965). Thus, defendant was subject to the-provisions of the Federal Aviation Act of 1958 (49 U. S. C. A. § 1301 et seq.). Pursuant to § 403 (a) thereof (49 U. S. C. A. § 1373 (a)) it is required to file with the Civil Aeronautics Board tariffs containing its rules and regulations relating to its interstate transportation of passengers and cargo. It filed such tariffs. These tariffs are binding upon shipper and carrier alike. United States v. Associated Air Transport, Inc., 275 F. 2d 827 (5 Cir. 1960).

The applicable tariff (Rule 52) provides, in effect, that defendant’s liability was limited to 50^ per pound unless the shipper declares a higher value to the carrier. The air bill given by defendant to plaintiff’s agent provides that the goods are accepted subject to the filed tariffs, and that the declared value will “not be more than the value stated in the governing tariffs for each pound on which charges are assessed unless a higher value is declared and applicable charges paid thereon.”

The air bill issued to the shipper and accepted by him constitutes the contract of carriage. Lichten v. Eastern Air Lines, Inc., 189 F. 2d 939 (2 Cir. 1951); Penna.-Reading Seashore Lines v. Unit Const. Co., 117 N. J. L. 494, 495 (E. & A. 1937). Thus, generally, one is bound to the tariff value where no other value is specifically set forth. Milhizer v. Riddle Airlines, Inc., supra, 185 F. Supp. 110. The shipper has an opportunity to declare any value he may choose on the shipment and thus apprise the carrier of the extent of its responsibility. If he does not do so, he cannot thereafter be heard to claim damages valued greatly in excess of the “value” of the shipment as determined by the contract. Id. at 113; Silvers v. Penna. R. R., supra, 89 N. J. Super. 475. Having accepted the benefit of a lower rate dependent upon the specified valuation, the shipper is estopped from asserting a higher value. American Railway Express Co. v. Lindenburg, 260 U. S. 584, 592, 43 S. Ct. 206, 67 L. Ed. 414 (1923).

However, the undisputed facts clearly establish that the shipper did declare a higher value. Plaintiff’s agent gave defendant’s agent instructions to insure the chicks for $2240. In spite of these instructions, the air bill which was completely prepared by defendant’s agents ' contained no such “Declared Value.” It was received by plaintiff’s agent at a late hour during the night, and by the time defendant’s omission could have been detected and rectified the chicks had already arrived dead or near dead in Los Angeles.

The undisputed evidence clearly leads to the conclusion that the full value was not placed on the air bill only as a result of the mutual mistake of the agents of the parties. Under these circumstances, we find that plaintiff is equitably entitled to be relieved from the result of this mutual mistake. Penna.-Reading Seashore Lines v. Unit Const. Co., sugra, 117 N. J. L. at 498. The contract between the parties, the air bill, being the product of an honest mistake, will be reformed to meet the true intent of the parties. Id. at 498. This may be done without violating any existing federal tariff or regulation.

However, plaintiff is not entitled to recover $2240 from defendant. Transportation charges consistent with this valuation must first be paid by plaintiff. See Tariff Rule 60(c)(1). Thus, this matter is remanded to the trial court so that these charges may be determined by agreement of the parties or by the court following a hearing. The amount thus ascertained shall be deducted from $2240 and a judgment shall be entered for the plaintiff in the reduced amount. Ho interest shall be payable thereon. In the light of this procedure, we find defendant’s final point to be without merit. This is especially so since we have mandated that transportation charges be deducted from the judgment, not the reverse.

Affirmed as modified, and remanded in accordance herewith.


author: Labrecque, J. A. D.

text:
    LUCILLE B. JONES, PLAINTIFF-APPELLANT, v. LEO STESS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued June 22, 1970
    Decided July 27, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Kenneth E. Joel argued the cause for plaintiff-appellant.

      Mr. Richard A. Amdur argued the cause for defendant-respondent (Messrs. Hanlon, Argeris & Amdur, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiff Lucille B. Jones appeals from a judgment in favor of defendant Leo Stess following the granting of defendant’s motion for involuntary dismissal at the close of her case.

On September 12, 1966 plaintiff visited the office of defendant, a licensed chiropodist (podiatrist), for the purpose of having her “feet, her nails and her calluses taken care of.” Defendant had been treating her for a number of years and knew that she suffered from diabetes. In a portion of his deposition which was offered in evidence he stated that he had specifically noted that fact on his office record card, by underlining the word “diabetic” in red ink. He gave as the reason for this the fact that “diabetic patients are special patients to be considered with care” — they ‘fiiave to be watched more closely,” “as a precaution against infection or injury.” He added, “we don’t work too close with diabetic patients” and agreed that “you don’t want to unintentionally cut a diabetic.”

On the day in question, after soaking plaintiff’s feet in a whirlpool bath, defendant began clipping her toe nails. When he reached the groat toe of her left foot he, in some manner, clipped the inside of her toe. When she jerked her foot back because it hurt, he allegedly said, “I’m sorry, Mrs. Jones, but those kids have upset me. They have been in here all afternoon * * (she had previously heard two boys talking and “kidding around” with the doctor). She felt pain in the toe but after he had applied a red substance to it she was permitted to return home.

By the next day the pain was worse. Two days later continued pain in the toe caused her to consult Dr. Wales, her personal physician. When she did not respond to his treatment he referred her to Dr. Slobodien, a surgeon, who observed an area of infection on the inside of the left big toe. Subsequent x-rays indicated that the infection had penetrated into the bone below. Dr. Slobodien ordered plaintiff admitted to Perth Amboy General Hospital where, on October 31, 1966, her condition was diagnosed as osteomyelitis of the toe, and an operation was performed which consisted of removing the nail and curetting the osteomyelitic area of the distal phalanx. When the infection persisted plaintiff was readmitted to the hospital on December 26 at which time, because diabetic gangrene had set in, her entire toe was amputated. When the condition continued to spread she underwent three more operations, the last, an amputation, extending to hex mid thigh. With the final amputation the infection was contained and healing took place. Eventually, an artificial leg was fitted.

There was medical testimony from Dr. Wales as to the existence of causal relationship between the cutting of the toe by defendant and the resultant loss of plaintiff’s left leg. Dr. Slobodien testified that “diabetics have problems with regard to healing, particularly with infection.” As to the reasons for this he stated, “Basically, one of them is that the blood vessels are older than the individual is, and the second is that because of the fluctuating sugar levels in the body, infection itself tends to recede more slowly than it would in individuals without diabetes.” He added that, “[DJiabetes affects blood vessels in the body, primarily arteries of the middle size. Because these vessels are involved, the blood flow through these vessels is diminished,” and “[I]n order to have proper healing, [w]hat you want is an adequate blood flow to the area as much as possible, and in diabetics this flow is decreased.” He opined that the diminished blood flow would affect the lower extremities most severely.

Dr. Wales was in substantial accord. With reference to the extremities he testified, “Great care must be used in taking care of these areas because any type of trauma can precipitate an infection in the toe.”

At the close of plaintiff’s case the court granted defendant’s motion for an involuntary dismissal on the ground that plaintiff was required, but had failed, to adduce expert testimony as to the standard of care required of defendant, and whether there had been a deviation from that standard.

The sole question presented by the present appeal is whether the foregoing testimony was sufficient to make out a prima facie ease, and thus require defendant to put in his defense.

In passing upon defendant’s motion to dismiss, the court was required to consider the proofs in the light most favorable to plaintiff, and to accord her the benefit of the most favorable inferences reasonably to be drawn from them. Sanzari v. Rosenfeld, 34 N. J. 128, 132 (1961). Applying that standard to the present case, we are satisfied that plaintiff’s proofs presented a jury question, and that the dismissal was error.

As a chiropodist, licensed pursuant to N. J. S. A. 45 :5—1 et seq., defendant was required to possess that degree of knowledge and skill usually pertaining to other members of his profession. Cf. Hull v. Plume, 131 N. J. L. 511 (E. & A. 1944). See Annotation, “Liability of Chiropodist for Malpractice,” 80 A. L. R. 2d 1278 (1961). In the rendition of his professional services, he was required to exercise that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the members of his profession. Cf. Fernandez v. Baruch, 52 N. J. 127 (1968).

In general, in a malpractice action the patient is required to establish that defendant’s treatment fell below the standards established and recognized in the profession in which defendant was engaged. Ordinarily, the question of what those standards demanded of defendant, or whether he had deviated therefrom, is to be established by expert testimony. Carbone v. Warburton, 22 N. J. Super. 5 (App. Div. 1952), aff’d 11 N. J. 418 (1953); Ayers v. Parry, 192 F. 2d 181 (3 Cir. 1951), cert. den. 343 U. S. 980, 72 S. Ct. 1081, 96 L. Ed. 1371 (1952), reh. den. 344 U. S. 849, 73 S. Ct. 49, 97 L. Ed. 660 (1952), 344 U. S. 916, 73 S. Ct. 337, 97 L. Ed. 707 (1953), 345 U. S. 961, 73 S. Ct. 941, 97 L. Ed. 1381 (1953). However, a well recognized exception dispenses with the need for such testimony where the facts are such that it may be said, looking at it in the light of the “common knowledge and experience” of laymen, that there has been a lapse from the standard. Steinke v. Bell, 32 N. J. Super. 67, 69 (App. Div. 1954); Sanzari v. Rosenfeld, supra, 34 N. J. at 141; Martin v. Perth Amboy General Hospital, 104 N. J. Super. 335, 342 (App. Div. 1969); Becker v. Eisenstodt, 60 N. J. Super. 240, 246 (App. Div. 1960); Ayers v. Parry, supra, 192 F. 2d at 184-185. See also Annotations, “Necessity of Expert Evidence to Support an Action for Malpractice against a Physician or Surgeon,” 141 A. L. R. 5, 12, 24, 29 (1942), 81 A. L. R. 2d 597, 608, 641 (1962); “Liability of Dentist to Patient,” 83 A. L. R. 2d 7, 78, 89 (1962).

Becker v. Eisenstodt, supra, involved the use of a caustic solution in a patient’s nose by a plastic surgeon while Steinke v. Bell, supra, involved the removal of the wrong tooth by a dentist. In Sanzari v. Rosenfeld, supra, where the patient died as a result of a cerebral hemorrhage allegedly caused by aggravation of her hypertensive condition brought about by the injection of Epinephrine, an anesthetic solution, into her gums by a dentist, Justice Proctor referred to the “common knowledge” exception as follows:

Ordinarily, the common knowledge doctrine is applied in a malpractice case after the plaintiff proves his injury and a causally related act or omission by the defendant. The effect of applying this doctrine is to allow the jury to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto. In other words, application of the doctrine transforms the case into an ordinary negligence case where, as mentioned above, the jury, from its fund of common knowledge, assays the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff. The basic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners. [34 N. J. at 141-142]

In holding, based on the manufacturer’s brochure which had indicated that the drug was contraindicated for patients suffering from hypertension, that the dismissal at the end of plaintiff’s ease was error, he concluded, “We believe that it was within the common knowledge of laymen that a reasonable man, including a dentist, who knows a drug is potentially harmful to a certain type of patient should take adequate precaution before administering the drug or deciding whether to administer it.” 34 N. J. at 143. Compare Ayers v. Parry, supra, where a claim of malpractice based upon damage to nerve roots during spinal anesthesia was held to require expert testimony.

In Ayers v. Parry the court referred to Vergeldt v. Hartzell, 1 F. 2d 633 (8 Cir. 1924), as an example of the type of case not requiring expert testimony. In its factual pattern that case closely resembles the present one in that there the dentist’s drill slipped when he momentarily turned his head toward the instrument table, whereas here the instrument slipped because the chiropodist had been upset by the boys. In Vergeldt, the Circuit Court of Appeals, in reversing the dismissal of the action by the trial judge, pointed out:

The theory of plaintiff’s allegation and brief in support thereof is, not that the defendant’s treatment or operation was unprofessional or below standard or that the defendant was unskillful in his work, but that the defendant was negligent and failed to observe reasonable care while performing the operation, and by reason thereof an untoward act occurred producing a positive and independent injury, [at 6351

In holding that the case was for the jury, the court quoted extensively from Evans v. Roberts, 172 Iowa 653, 660, 154 N. W. 923, 926 (Sup. Ct. 1915). In that case, while the surgeon was operating for the removal of adenoids, the instrument slipped and wounded the plaintiff. The court held:

What may be the rule where the sole question is upon the treatment of the diseased part, and whether it was in accordance with approved and medical standards, we need not here decide, for, as we have already noted, this is not a case of that kind. The jury hero did not have to consider whether the method of the defendant in removing the adenoids was correct or scientific, hut whether the unintentional wounding of plaintiff’s tongue was occasioned by lack of reasonable care on his part. This, it would seem very clear, involves no question of science or necessarily of expert knowledge.

In the light of the proofs, we incline to the view that the present case falls within the ambit of Sanzari v. Rosenfeld, Steinke v. Bell and Vergeldt v. Hartzell. The medical testimony was adequate to sustain a finding that plaintiff suffered the amputation of a substantial portion of her left leg by-reason of an infection which she sustained through the breaking of her skin by defendant on the day in question. Defendant knew plaintiff was a diabetic and acknowledged the need for extra care in working on the feet of diabetics. The issue of his responsibility in tort for her condition did not depend on whether the method utilized by him was correct or scientific, but whether his unintentional wounding of her was occasioned by the lack of reasonable care on his part. Whether, inter alia, the instrument being used by him slipped because he was “upset” bj*- the previous actions of the two boys in his office, and whether in view of his upset condition, he should have given plaintiff another appointment, or waited until his upset condition had subsided, were questions which the jury was competent to resolve without expert testimony. See also Terhune v. Margaret Hague Maternity Hospital, 63 N. J. Super. 106, 115 (App. Div. 1960); Daly v. Lininger, 87 Colo. 401, 288 P. 633 (Sup. Ct. 1930); Ambrosi v. Monks, 85 A. 2d 188 (D. C. Mun. Ct. of App. 1951); Bessinger v. DeLoach, 230 S. C. 1, 94 S. E. 2d 3 (Sup Ct. 1956); Gray v. Weinstein, 227 N. C. 463, 42 S. E. 2d 616 (Sup. Ct. 1947). Compare Demchuk v. Bralow, 404 Pa. 100, 170 A. 2d 868 (Sup. Ct. 1961) (involving injury while attempting to insert gastroscope into stomach — “an intricate surgical procedure”).

Reversed and remanded for a new trial.


text:
    CHICAGO INSURANCE COMPANY, A CORPORATION AND STANLEY ZEIDNER, PLAINTIFFS-APPELLANTS, v. SECURITY INSURANCE COMPANY OF HARTFORD, A CORPORATION, MURRAY BROTHERS, INC., HELEN WEST, SOPHIE FILIPSKI, JOHN A. HARRIS AND CHARLES BEVERLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 16, 1970
    Decided August 3, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Milton Gurny argued the cause for plaintiffs-appellants (Messrs. Zucker, Lowenstein Gurny & Zucker, attorneys).

      Mr. Rocco D’Ambrosio argued the cause for defendants-respondents (Messrs. Gaffey, Webb & McDermott, attorneys).
   The opinion of the eonrt was delivered by

Labrecque, J. A. D.

Plaintiffs appeal from a declaratory judgment holding that a policy of liability insurance, issued by respondent Security Insurance Company of Hartford (Security) to Murray Brothers, Inc., did not extend coverage to an accident in which Stanley Zeidner (Zeidner) was involved on June 3, 1966.

On the day in question Zeidner was an employee of Murray Brothers, Inc. (Murray), a corporation of which his father was the principal owner. Although he drew his salary exclusively from Murray, his employment required him to render services to other corporations, including Murray Realty Ltd., controlled by his father.

Late in the afternoon of June 3, 1966 he was involved in an accident which resulted in the institution of several suits against him. At the time of the accident he was driving a rented Dodge automobile because the company-owned car, which he generally used, had recently been stolen. The rental had been made in the name of Murray, on its credit card. While en route to one of Murray Realty’s properties on Mulberry Street, Newark, he came to the intersection of Edison Place and Broad Street and found his way blocked by traffic. There was a bus immediately ahead of him. Eventually, he got out of the Dodge and walked past the bus to where he found a car stopped in a position that prevented the movement of the bus, and the vehicles behind it, into and along Edison Place. The ear belonged to defendant Charles Beverly, but its only occupant at the time was a young hoy. Zeidner got into the Beverly car with the intention of moving it so that traffic could proceed. As he attempted to start it the ear went out of control and, after striking two vehicles and two pedestrians, ended np against a wall.

Plaintiff Chicago Insurance Company (Chicago) had issued an automobile liability policy which extended coverage to Zeidner’s operation of both the Dodge and the Beverly car. Security had issued a comprehensive public liability policy to “Murray Bros. Inc. Et. al.,” Zeidner’s employer, which covered Murray and its affiliated companies for rented as well as owned vehicles. By its policy it contracted to pay on behalf of the insured all sums which the insured should become legally obligated to pay as damages for injuries sustained by any person caused by accident, and arising out of the ownership, maintenance, or use of any automobile.

In this declaratory judgment action the two insurance companies sought an adjudication as to their obligations with reference to the damages sustained by third persons in the accident in question. The trial judge, in a written opinion, held that Security’s policy, while covering the operation of the rented Dodge, did not extend coverage to Zeidner’s operation of the Beverly vehicle as he attempted to move it. We affirm.

Both plaintiffs urge, in substance, that the “use” of the rented Dodge, covered by Security, extended to the efforts of Zeidner to remove the Beverly car which was obstructing traffic and preventing the movement of the Dodge down Edison Place. Thus, the core question before us is whether the use of the Dodge extended to Zeidner’s activities after he left it and attempted to operate the Beverly car. If Zeidner’s attempt to operate the Beverly car be found to amount to a use of the insured vehicle (the Dodge), the issue remains as to the apportionment of the liability between Chicago and Security.

The rule is well settled that if the controlling language of a policy will support two meanings, one favorable to the insured and the other favorable to the insurer, the interpretation sustaining coverage will be applied. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 7 (1961). The courts are bound to protect the insured to the full extent that any fair interpretation will allow. Kievit v. Loyal Pro tect. Life Ins. Co., 34 N. J. 475, 482 (1961). Where the policy provision in question, relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is to be taken of coverage, whereas if the clause in question is one of exclusion and exception, designed to limit protection, a strict interpretation is in order. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, supra, 35 N. J. at 8. More specifically, the language of the omnibus clause of a policy is to be construed broadly in favor of the insured and injured persons to effectuate a strong legislative policy of assuring financial protection for innocent victims of automobile accidents. Indemnity Ins. Co., etc. v. Metropolitan Cas. Ins. Co. of N. Y., 33 N. J. 507, 512-513 (1960). However, it appears to be universally recognized that causal relationship or connection must exist between the accident or injury, and the use of a vehicle, in order to support the conclusion that the accident arose out of the “ownership, maintenance or use” thereof. This is so even though the use of the vehicle need not be the direct and efficient cause of the injury sustained. Panhandle Steel Products Co. v. Fidelity Union Casualty Co., 23 S. W. 2d 799 (Tex. Civ. App. 1929).

By its policy, Security contracted to cover Zeidner’s operation of rented automobiles such as the Dodge here involved. In holding that Zeidner’s operation of the Beverly car did not amount to a use of the Dodge, the trial judge found Federal Insurance Co. v. Forristall, 401 S. W. 2d 285 (Tex. Civ. App. 1966) to be factually apposite. In that case defendant had parked his car immediately behind another car at the country club. When he came to leave, he found that someone had parked a car directly behind Mm so that movement of his vehicle was impossible. He thereupon elected to move the car ahead of him by releasing the gear shift and, with the help of another, attempting to push it manually. However, they did so in such an unskillful manner that the car rolled down an embankment, crashed into a boathouse and went into the river. When its owner sought to recover from defendant, the latter’s insurance carrier disclaimed on the ground that the accident did not arise out of the ownership, maintenance or use of Ms automobile. Defendant countered that since it was necessary that the car ahead be moved from the place where it was parked in order that his car could be moved, the movement of the parked car amounted to a use of his car within the provisions of his policy. The court held that the carrier was not obliged to defend, noting that, had defendant elected to push the car ahead with his own car, this would have amounted to use thereof, but when he elected to push the car manually, “he put aside the use of his own car.” (401 S. W. 2d at 292).

In Federal Insurance Co. v. Forristall the court relied principally upon Wiebel v. American Farmers Mutual Insurance Co., 1 Storey 151, 153, 140 A. 2d 712, 713 (Del. Super. Ct. 1958). In that case, Wiebel, upon being asked by his neighbor to assist in starting the latter’s car, drove his car to the neighbor’s house and attempted to push the stalled ear backwards from the driveway into the street. When this effort failed because their bumpers were not meeting properly on the uneven driveway, they proceeded to manually push the car backwards into the highway, intending thereafter to use Wiebel’s car to push it forward. When the car reached the highway it was struck by another vehicle. The issue then arose whether Wiebel’s policy entitled him to a defense as to suits subsequently entered against his neighbor and himself by those injured in the accident. The court ruled that the negligent pushing of the car into the highway did not arise out of the “ownership, maintenance or use” of Wiebel’s automobile even though he intended to use it afterward to push the neighbor’s car. It held:

Automobile insurance contracts protect against liability for accidents arising out of the “use” of vehicle [sic.] but they cannot be held to protect against liability for accidents where the use of the automobile was not connected with the accident or the creation of a condition that caused the accident * * (Emphasis added.) Wiehel, supra, 1 Storey at 152, 140 A. 2d at 714.

In attempting to distinguish Wiebel, plaintiffs urge that here “only the operation of the vehicle [the Dodge] had stopped — not its use or utilization.” The distinction escapes us. In each case the driver left his vehicle to engage in an activity disassociated from it; in each case the driver intended to resume the use of his vehicle — Wiebel to push his neighbor’s car after it reached the highway and Zeidner to drive on to Mulberry Street, where he had been headed in the first place.

In addition to seeking to distinguish the cases on which the trial judge relied, plaintiffs cite, in support of their position the following: McDonald v. Great American Insurance Company, 224 F. Supp. 369 (D. R. I. 1963); Merchants Co. v. Hartford Accident and Indemnity Co., 187 Miss. 301, 188 So. 571 (Sup. Ct. 1939); Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S. W. 2d 181 (Sup. Ct. 1944); Federated Mutual Implement & Hardware Ins. Co. v. Gupton, 241 F. Supp. 509 (E. D. S. C. 1965) and Gronquist v. Transit Casualty Company, 105 N. J. Super. 363 (Law Div. 1969). We find none of them to be apposite. Gronquist involved the liability of a passenger who had allegedly interfered with the operation of the insured vehicle by the driver thereof. It was there held that as a passenger riding therein he was making “use” of the automobile at the time of the accident, hence he was an additional insured entitled to a defense by the owner’s carrier. There is nothing in that case to suggest that had he left the car in which he was riding in order to move another car which was blocking traffic, his status as an additional insured would have continued.

In McDonald v. Great American Insurance Company, supra, the insured had thrown a “cherry bomb” from an automobile in which he was riding as a passenger seriously injuring a third party. He was insured under a homeowner’s policy and the owner of the car in which he was riding was insured under an automobile policy. In an action to compel one of them to defend the suit against him, the court held that neither was obligated to do so. In Merchants Co. v. Hartford Accident and Indemnity Co., supra, a passenger in an automobile was injured when struck by certain poles which had been left in the highway by the driver of the insured truck after he had used the poles to eztricate his truck from a ditch in which it had become stuck. Thus, the “condition” which had caused the accident had been brought about through the prior use of the truck.

In Schmidt v. Utilities Insurance Co., supra, the driver of an insured coal truck had used blocks in backing the truck from the street up onto the sidewalk. When he had finished, he left the blocks on the sidewalk and a pedestrian tripped on them, and was injured. Again, the court was dealing with a “condition” which had been brought about through the use of the truck. And in Federated Mutual Implement & Hardware Insurance Co. v. Gupton, supra, when the vehicle of one of his employer’s customers became stalled on the highway because it was out of gas, plaintiff, a service station employee, responded in his employer’s pickup truck. While the truck was parked in the rear of the customer’s vehicle, and plaintiff was putting gasoline into the tank of the latter, the customer suddenly caused her car to back up, pinning him between the two vehicles. As the court there pointed out, the employer’s insurance policy contemplated that the pickup truck would be used for the purpose of assisting disabled motorists. It was being used for that purpose and its equipment included the gasoline can from which plaintiff was then pouring gasoline, and tools for the purpose of making any necessary repairs or adjustments. Obviously, such a use would also require that the truck and its equipment would be returned, thereafter, to the service station. To substantially the same effect was Owens v. Ocean Acc. and Guarantee Corp., 194 Ark. 817, 109 S. W. 2d 928 (Sup. Ct. 1937) where the plaintiff was injured when the stretcher upon which she was being carried to an ambulance was negligently permitted to fall and the court held that the accident arose through the “use” of the ambulance.

We thus find no merit to plaintiffs’ contention that the attempt to move the Beverly car amounted to a use of the Dodge because it was necessary that it be moved in order to enable the Dodge to proceed. Further, the trial judge found — and the facts support him — that it was not necessary to move the Beverly car in order for Zeidner to complete his errand. The Beverly car was on Edison Place, while the Dodge had been stopped in the middle of Broad Street. The tieup was a temporary one at most and there were alternate means whereby Zeidner could have reached his destination on Mulberry Street, if he did not wish to wait.

We need not here determine whether the negligent removing of an obstacle on a blocked highway by a motorist, where no other means of reasonably avoiding it are available, may not be held to arise from the use of the vehicle being driven by him.

The judgment of the Chancery Division is accordingly affirmed. By reason thereof, we find it unnecessary to pass upon plaintiffs’ remaining point.