author: Waugh, A. J. S. G.

text:
    ROBERT E. DAVIS, M.D., AND A. BRUCE MUNRO, M.D., PLAINTIFFS, v. MORRISTOWN MEMORIAL HOSPITAL, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 5, 1969.

      Messrs. Wharton, Stewart & Davis, attorneys for plaintiffs (Mr. Richard H. Thiele, Jr., of counsel).

      Messrs. Schenclc, Price, Smith & King, attorneys for defendant (Mr. Clifford W. Slarrett, of counsel).
   Waugh, A. J. S. G.

Plaintiffs Robert E. Davis, M. D., and A. Bruce Munro, M. D., two qualified, Board-certified obstetricians, practice obstetrics and gynecology in two offices, one located in Morristown, the other at Denville, in this County.

It is uncontroverted that Dr. Davis commenced practice in Morristown in 1955, and was joined by Dr. Munro in 1962. Shortly after establishing his practice in Morristown, Dr. Davis opened an office in Denville. Plaintiffs now practice in both locations, limiting their practice to obstetrics and gynecology.

Until the closing of the obstetrical department at All Souls’ Plospital, Morristown, in 1968, plaintiffs were on the staffs of three hospitals — namely, All Souls’, Morristown; St. Clare’s, DenviJle; and Riverside, Boonton.

Plaintiffs, impressive in demeanor and attitude on the witness stand, and obviously qualified professionally, have built a highly successful practice, reaching 450 deliveries in 1967, with 80% of these deliveries at St. Clare’s Hospital, Denville, and 20% at All Souls’ Hospital, Morristown. Actual figures given on Ex. P-52 show 349 at St. Clare’s, 80 at All Souls’ and, apparently, 20 at Riverside Hospital.

It is established by the testimony that the office practice of plaintiffs in Morristown is more extensive to the extent that they see more obstetrical patients at the Morristown office than they delivered at All Souls’ Hospital. Approximately two-thirds of their Morristown office patients were delivered at All Souls’, while the other third was delivered at St. Clare’s Hospital. The reason for this situation is that some women patients prefer appointments in Morristown for convenience, but it is also a fact that plaintiffs have arranged and urged their patients, where possible, to deliver at St. Clare’s Hospital. In fact, one of their arguments for admission to the staff of defendant is their ability to ease the overcrowding at Morristown Hospital by shifting patients from the Morristown area to the other hospitals at which they practice.

I am not unmindful that this shifting of patients to St. Clare’s may have been due, in part, to plaintiffs’ preference for St. Clare’s. One interesting sidelight of the case is the dwindling number of births at All Souls’ (i. e., 474 in 1965, 366 in 1966, 274 in 1967). All Souls’ was about to close its obstetrical department, and it is a fair inference in the case that small obstetrical departments present personnel and other problems which doctors prefer to avoid. In fact, some of the evidence gave £,000 births per year as a satisfactory figure for the operation of an obstetrical department.

The unique situation at All Souls’ led to its closing its obstetrical department in 1968. As soon as that closing became imminent, plaintiffs applied to defendant Morristown Memorial Hospital for obstetrical staff privileges, each stating by letter of application:

“I am well aware of the surgical bed problem at Morristown Memorial and therefore wish to take this opportunity to state for the record, that I have no intention of doing any private gynecological procedures anyplace other than at the hospitals where I am presently practicing. I consider D&C’s, threatened abortions, incomplete abortions and ectopics to be GYN cases and will take them to All Souls’ for surgical care.
These Morristown maternity patients represent approximately 20% of our present practice and I don’t intend to change that ratio.
Dr. Munro and I delivered 77 patients at All Souls’ in 1967 and we do not intend to do any more than that in Morristown this year or in the future.”

They were refused admission on the basis of a policy of the defendant Hospital set forth in A.M. No. 550, which states:

“Picase make sure that all physicians who express an interest in applying for an appointment to our Medical Staff are apprise,d of the following policies as revised at recent meetings of the Committee of Managers:
Until an adequate number of medical-surgical, OBS-GYN, and psychiatric beds can be provided, doctors who newly apply for appointment to the Medical staff and would be admitting patients to any of these beds will be informed that action on their applications must be deferred, except for such doctors as may qualify under one or more of the following criteria:
1. Is setting up practice in a community that is within the hospital primary service area and urgently needs such a physician.
2. Provides specialized professional skills that will substantially improve a service of the hospital.
3. Requests, and qualifies for, a temporary appointment.”

It should be noted that this policy, while it became effective as to OBS-GYN March 27, 1968, was effective as to medical-surgical admissions as of October 15, 1967 and psychiatric as of January 3, 1968. It is this policy — and the reasonableness of this policy — that is hero in issue.

In an effort to have all the issues decided completely and expeditiously, the court suggested and counsel cooperated by having the issue of the doctors’ qualifications reached in advance of trial. They were found to be qualified for appointment to the staff. The only bar to admission is A.M. No. 550. This is set forth in the pretrial order in the following language:

“2. Plaintiffs stipulate in accordance with their application for staff privileges at Morristown Memorial Hospital, that they will agree to limit their deliveries to not more than 20 per cent of their total practice, approximately 100 deliveries per year or such lesser number as the Court may deem reasonable.
The parties stipulate that the application of the two plaintiffs have been acted upon affirmatively by the proper committees of the defendant-hospital in accordance with all procedures, leaving the only bar to their admission the policy statement of March 27, 1968, closing the obstetrical-gynecological staff at defendant-hospital to further appointments.”

Morristown Memorial Hospital is a hospital of high reputation, organized in 1892 as a private nonprofit corporation. It has grown from 152 beds in 1952 and has since relocated in a new building containing 382 beds. Its capital funds are derived from individual and corporate gifts; also from bequests. It has received modest sums under the Hill Burton Act, 42 U. S. C. A. § 291 et seq., and from Public Health Service. Operating funds derive from patient fees, United Fund contributions and payments by governmental bodies and agencies for indigent and other special categories of patients. Factually, defendant hospital receives funds from the same sources as did Newcomb Hospital.

In Greisman v. Newcomb Hospital, 40 N. J. 389 (1963), affirming 76 N. J. Super. 149 (Law Div. 1962), our Supreme Court declared that hospitals such as Morristown Memorial Hospital here “are private in the sense that they are nongovernmental but they are hardly private in other senses.” (at p. 396) In that case the court, at pp. 395-399, completely disposes of the public-private argument advanced by defendant here. I find the argument to be without merit.

The administrative powers of the corporation are vested in a board of trustees, who have charge, control and management of the property, affairs and funds of that corporation. The trustees elect a committee of managers which acts as an executive committee for the board of trustees.

After trial, and immediately before final argument, defendant hospital moved to reopen its case to show that plaintiffs, in 1969, had advertised in a newsletter of the American College of Obstetricians and Gynecologists:

“A Board-certified or eligible ob-gyn man, married with military obligations completed is wanted to join an active two-man partnership. Salary leading to partnership. Contact: Robert E. Davis, M.D. or A. Bruce Munro, M.D., 60 Broadway, Denville, New Jersey. Phone 201-627-4222.”

It was defendant’s contention that the ad showed clearly there was no economic loss to plaintiffs.

I did permit reopening. Plaintiffs frankly concede they desire another associate and future partner. They stress the need to keep current with good medical practice by frequent attendance at medical conventions and the need for vacation and relaxation; as they put it, “in a two man practice if one is out, you again are a lone practitioner.” Plaintiffs concede also that their Morristown practice is still alive despite the closing of All Souls’. They had 22 new patients in January, February and March 1969, two-thirds are multíparas and one-third new; while at their Denville office the percentages tire two-thirds new patients and one-third multíparas. Plaintiffs’ gynecological practice in Morristown is unaffected by this suit, since these patients may be treated by plaintiffs at All Souls’. As stated above, they do not intend to treat gynecological patients at defendant hospital even if admitted to the staff there.

This case should not turn upon the narrow question of economic loss. There is evidence in the case from the doctor experts, and a concession by Mr. Boyd, executive director of defendant, which mandates a finding that eventually plaintiffs’ OB practice in Morristown will be curtailed. And while they may build a successful practice in the municipality in gynecology or may successfully transfer their practice totally to Denville, nevertheless, the other questions are “substantial enough,” as they affect plaintiffs’ professional status, “to warrant at least * * * judicial examination” of the validity of A. M. #550. See Higgins v. American Society of Clinical Pathologists, 51 N. J. 191 (1968), at pp. 201, 202.

LAW

The field of law involving hospital staff admissions has been the subject matter of a substantial volume of case law, and of law review articles. New Jersey courts have been in the forefront in the field. They have generally taken an advanced position, reviewing staff admissions to make certain that hospital officials exercise “their powers in trust” in a lawful manner.

In Falcone v. Middlesex County Medical Society, 34 N. J. 582 (1961), affirming 62 N. J. Super. 184 (Law Div. 1960), Justice Jacobs noted (at pp. 590-596) the reluctance of courts “to interfere with the internal affairs of membership associations * * but after tracing many New Jersey and out-of-state cases, concludes:

“* * * in a case presenting sufficiently compelling factual and policy considerations, judicial relief will be available to compel admission to membership;” (at p. 596),

and with respect to the power lodged in defendant Medical Society said:

“Public policy strongely dictates that this power should not be unbridled but should be viewed judicially as a fiduciary power to be exercised in reasonable and lawful manner for the advancement of the interests of the medical profession and the public generally; the evidence firmly displays that here it was not so exercised and that Dr. Falcone was fairly and justly entitled to the relief awarded to him in the Law Division.” (at p. 597)

And:

“* * * When the County Society engages in action which is designed to advance medical science or elevate professional standards, it should and will be sympathetically supported. When, however, as here, its action has no relation to the advancement of medical science or the elevation of professional standards but runs strongly counter to the public policy of our State and the true interests of justice, it should and will be stricken down.” (at p. 598)

This ease bas been tbe subject matter of several law review articles: Note, “The Physician’s Right to Hospital Staff Membership: The Public-Private Dichotomy,” Wash. L. O., 485 (1966); Note, “Exclusion from Private Associations,” 74 Yale L. J. 1313 (1965); Note “Expulsion and Exclusion from Hospital Practice and Organized Medical Societies,” 15 Rutg. L. Rev. 327 (1961); Note, “Judicially Compelled Medical Societies: The Falcone case,” 75 Harv. L. Rev. 1186 (1962) ; Note, “Developments in the Law-Judicial Control of Actions of Private Associations,” 76 Harv. L. Rev. 983 (1963) .

In Greisman v. Newcomb Hospital, supra., the court reaffirms its decision in Falcone and applies it to a hospital by law, rather than to a medical society. The court held that plaintiff Dr. Greisman was entitled to have Ms application considered “in accordance with the hospital’s valid bylaws.” at (40 N. J., at p. 402.)

In Greisman the court was “not asked to pass on a discretionary exercise of judgment but only on the validity of the bylaw requirement,” and held that in the light of Falcone the bylaw was invalid. Id., at p. 402. It then adds:

“Hospital officials aro properly vested with large measures of managing discretion and to the extent that they exert their efforts toward the elevation of hospital standards and higher medical care, they will receive broad judicial support. But they must never lose sight of the fact that the hospitals are operated not for private ends but for the benefit of the public and that their existence is for the purpose of faithfully furnishing facilities to the members of the medical profession in aid of their service to the public. They must recognize that their powers, particularly those relating to the selection of staff members, are powers in trust which are always to be dealt with as such. While reasonable and constructive exercises of judgment should be honored, courts would indeed be remiss if they declined to intervene where, as here, the powers were invoked at the threshold to preclude an application for staff membership, not because of any lack of individual merit, but for a reason unrelated to sound hospital standards and not in furtherance of the common good.” (at pp. 403-404)

In Sussman v. Overlook Hospital Ass’n, 95 N. J. Super. 418 (App. Div. 1967), affirming, 92 N. J. Super. (Ch. Div. 1966), we have an extension of the Greisman doctrine in a holding that makes it incumbent upon a hospital to formulate “necessary procedures * * * to insure a fair and thorough determination of plaintiffs’ applications,” including the right to appear, present documents and witnesses, (at p. 425).

It should be noted that in Greisman and Falcone the courts were concerned with matters of “public policy.” Public policy is determined exclusively by the Legislature. See Doremus v. Board of Education of Hawthorne, 5 N. J. 435 (1950), where the court said:

Subject to constitutional limitations, the Legislature has exclusive jurisdiction over matters of public policy, Schenley Products Co. v. Franklin Stores Co., 124 N. J. Eq. 100, 105 (E. & A. 1937); State v. Donovan, 129 N. J. L. 478, 486 (Sup. Ct. 1943) and the courts should be very sure of their ground before they restrict that legislative field.” (at p. 452)

Even though no matter of public policy is here involved, I conclude from the holding in Greisman that this court has the duty to exercise “broad judicial authority to insure that exclusionary policies are lawful and are not applied arbitrarily or discriminately.”

I note in passing that N. J. S. A. 30:11—1 states in part:

“It is declared to be the public policy of this State to provide for the development, establishment and enforcement of basic standards for the care and treatment of individuals in private mental hospitals, convalescent homes, private nursing homes and private hospitals as defined herein and for the construction, maintenance and operation of such institutions in such a manner as to insure safe and adequate treatment of all such individuals in said private mental hospitals, convalescent homes, private nursing homes and private hospitals.”

and it may be that the Department of Institutions and Agencies may in the future as a matter of public policy determine that geographical limitation of patients, multiple staff appointments and orders for increasing bed capacity are of sufficient concern to issue directives in this field. Presently they have not done so.

In the present case, then, we appear to reach, for the first time in New Jersey, the question of discretionary exercise of judgment by a hospital board in closing staff appointments.

A case similar to this, Schneir v. Englewood Hospital Association, 91 N. J. Super. 527 (Law Div. 1966), in that, factually, it appeared to turn upon a bed shortage, as does this, has been called to the court’s attention, but it is not otherwise helpful.

The test to be applied in determining the validity of the hospital’s action in adopting A. M. # 550 is its reasonableness as it relates to “sound hospital standards” in “faithfully furnishing facilities to the members of the medical profession in aid of their service to the public.” Our courts speak in terms of “constructive exercise of judgment” and discretionary powers “in trust.”

Plaintiffs raise the question whether or not they, or persons similarly situated, should not have been permitted to introduce facts to the committee of managers prior to the adoption of A. M. 550. I conclude from Sussman, supra, where the court said:

“We agree that the necessary procedures should be formulated by defendant in order to insure a fair and thorough determination of plaintiffs’ applications. As Judge Mintz stated: ‘Such procedure should provide for the applicant to appear in person if he so desires and present witnesses and appropriate documents.’ At the same time, the inquiry should not be equated to that of a trial-type hearing. A board of trustees of a hospital does not have the power to subpoena witnesses or administer oaths. All that is required is for the board to be fully informed so that it may make an intelligent and reasonable judgment in good faith upon all the facts presented.” (at p. 425)

that the last sentence of the quoted section is the guideline.

It is not, however, too early to remind hospital boards that since their actions may come under judicial review, the court must know what information they acted upon. In Reinauer Realty Corp. v. Paramus, 34 N. J. 406 (1961), Justice Francis said:

“It must be kept in mind that zoning and Boards of Adjustment are presently integral aspects of our community life. Decisions assigned to such boards by the Legislature and by local ordinances must be made with a formality of procedure that will satisfy the needs of the various interests involved. The boards must realize that their action on special use exceptions, variances, and the like, in any case may ultimately reach a court for review. The judicial decision can bo based only on the evidence, testimony, exhibits and the factual findings which led to the result under attac-k. So if a proper record is not put together and presented by the board to the governing body and later handed to the court, the judiciary cannot fulfill its role in the scheme of government. In an effort to coordinate and integrate the efforts of all agencies concerned, a further suggestion is ventured. When applications of the type involved here are presented to a local board, its members should remind themselves that a stranger to the proceedings, completely uninformed of the local conditions and of the facts of the particular problem, may be called upon to review the ultimate decision. And they should ask themselves: how can we put the problem presented to us, the facts on which we are asked to act, the decision reached by us, and the reasons (the specific factual findings) which led us to the decision, into such a documentary framework that the stranger may read and understand? Such an approach would produce the kind of understanding that is needed at all levels of treatment of these zoning problems.” (at pp. 416-417)

One need only substitute “hospital boards” for “zoning and Boards of Adjustment.”

Plaintiffs’ attorney cites several California decisions: Blank v. Palo Alto-Stanford Hospital Center, 234 Cal. App. 2d 377, 44 Cal. Rptr. 572 (Dist. Ct. App. 1965); Letsch v. Northern San Diego Hospital District, 246 Cal. App. 2d 673, 55 Cal. Rptr. 118 (Ct. App. 1966), both of which upheld resolutions of hospitals closing staffs to all radiologists, excepting a single one with whom the hospital made a contract, as reasonable. In Letsch, the court used our zoning test of “unreasonable, arbitrary or capricious” in testing the hospital’s action. In Blank, the court asked the rhetorical question:

“* * * It would appear that what should be the proper procedure for X-ray, pathology, and related services and departments, would be better determined in calm administrative hearings than by adversary proceedings in the courtroom.” (at p. 574)

In the same vein, some law review articles question whether courts have the expertise to deal with the type of question here involved. The court, however, gave the same answer as we in Yew Jersey give, namely:

“* * * Where, however, the discretion inherent in the determination of such questions is abused so as to violate recognized rights, such as that to pursue a lawful calling, the courts should not hesitate to intervene.”

With these tests of reasonableness, let us turn to the facts.

The hospital’s action in adopting A. M. 550 can be justified only if it has an occupancy problem in its obstetrical department. A very substantial amount of trial time and testimony concerned these occupancy figures. Maternity beds present a special problem to a hospital. Surgical beds in a hospital may be controlled, except for emergencies, and a surgical department operated at figures in excess of 90% occupancy. Eor maternity beds, however, an occupancy figure of 70% is suggested.

Ex. D-16, Manual of Standards in Obstetric-Gynecologic Practice of the American College of Obstetricians and Gynecologists, page 6, puts it this way:

“To provide for the frequent peak activity, the annual average bed occupancy should not exceed 70 percent. Whenever possible, the unit should be flexible enough to permit expansion and contraction of the various types of accommodations according to the needs of the moment.”

Morristown Memorial Hospital reduced its number of maternity beds in 1964 to 31 from 39. According to its figures, it had a percentage of occupancy between 1964 to 1968 of over 70% in each year. After the closing of All Souls’ Hospital’s obstetrical department, this occupancy rate for the last eight months of 1968 exceeded 80% in every month but two.

It is true that to some extent the statistics may be manipulated, depending upon the time of daily count, and whether or not one counts an extra bed by prohibiting rooming-in, or suggests that the hospital count beds in a solarium, or in the labor room or post-partum room.

I am satisfied substantially that the hospital’s figures are correct, and that they have a high percentage of occupancy in comparison to other hospitals.

Most important, however, is the concession of plaintiffs’ renowned expert, Dr. Alan F. Guttmacher, whose testimony, as I understand it, is that the 70% occupancy rule is not “ironclad.” He believes 80% is “O.K.” but that 85% is too much. That “occupancy is at 85% regularly would cause me concern.” Dr. Guttmacher also conceded that the use of four beds in a solarium, urged by plaintiffs, was “not preferable.”

Plaintiffs’ counsel, in his brief, while not conceding completely on the occupancy issue, does say in part:

“Yet, on the basis of the testimony adduced, it is at least arguable as Dr. Guttmacher stated that an occupancy rate consistently in excess of 80% is something a hospital might consider doing something about. In fact, both Dr. Guttmacher and Dr. Clark, men of long experience in hospital administration and in the administration of obstetrical departments, asserted that any obstetrical service obviously has a limit and that it is up to the particular hospital to make a determination as to what that limit ought to be. So, the hospital’s judgment is accepted on the question of whether or not it has a problem in obstetrical occupancy.”

I am satisfied that the hospital has followed the other good practices suggested by plaintiff’s experts, Dr. Guttmacher and Dr. Clark — namely, “early induction in proper cases,” and “early discharge” consistent with the health of mother and baby.

I am satisfied, factually, that defendant Morristown Hospital does have an occupancy rate problem in the OB Department.

Among other suggestions, plaintiffs urged construction of more hospital space and obstetrical beds. The brief testimony I heard on this point leads me to the conclusion that it would take defendant hospital at least five years to provide additional obstetrical beds, assuming the funds were available and defendant desired to add such beds; that obstetrical beds are not economically desirable from a hospital management and financial return viewpoint; and that according to the testimony of Mr. Edward Mooney, executive director of the Health Planning Council, Morris Memorial Hospital probably could not expand OB beds while other hospitals in the county had a low occupancy rate.

Since the court has not been requested to take any action in this regard, nor would the court have power to order additional beds, I pass the point.

Plaintiffs, I find, are faced with a very real professional problem. They will lose those obstetrical patients who desire to be delivered at a Morristown hospital, because they have no obstetrical privilege at defendant hospital, and All Souls’ obstetrical department is closed. I find there will be loss of patients, based upon the testimony before me. Nor will they be available at their Morristown office to care for patients looking for a qualified obstetrician in Morristown, but also desiring to be delivered at a Morristown hospital. To this extent, “service to the public” is impaired.

Further, I find that plaintiffs’ Morristown office can only be sustained by gynecological patients whom they may hospitalize at All Souls,’ or by obstetrical patients who, while intending to be delivered at St. Clare’s or Riverside Hospitals, are willing to visit plaintiffs’ Morristown office for convenience.

Plaintiffs urge that a more reasonable and less arbitrary or capricious course for defendant hospital is to limit admissions geographically and to provide multiple staff appointments. This is based on Ex. P. 46, Guidelines and Recommendations for the Planning and Use of OBSTETRICAL FACILITIES IN SOUTHERN NEW YORE, page 1, January 1966:

“3. Maternity departments should be large enough to permit at least 2,000 births annually, which would require 30 to 40 obstetrical beds per institution. Exceptions may be required in the less populous areas of the region. However, even in these areas, maternity programs should be coordinated to achieve effective use of specialized personnel and facilities. This may be accomplished by offering multiple staff appointments to all qualified obstetricians in such communities.”

Plaintiffs would have Morristown Memorial Hospital lead in coordination of multiple staff appointments among all Morris County hospitals or alone start a trend to multiple staff appointments based on Ex. P-46, page 14:

“* * * When one institution is experiencing- peak loads and another has empty beds, a physician might arrange for his patient to be admitted to the appropriate hospital. To accomplish such coordination may require that multiple staff appointments be granted to qualified obstetriciansi at institutions located in the same community, so that the traditional physician-patient relationship will not be disrupted. It is recognized, of course, that each hospital is responsible for determining the qualifications for individual staff members.” (Emphasis added; footnote omitted)

Plaintiffs cite Ex. P-63, Hospital Accreditation References, (1964 Ed.), page 42 as authority for their position that bed capacity is not a basis for denial of staff appointment. It says:

“d. A. competent medical staff. Though listed fourth, the most important factor in evaluating clinical practice is a competent medical staff. The quality of medical care in the hospital is in direct ratio to the knowledge, experience, and ability of the members of the medical staff. The judgment necessary to evaluate clinical practice depends entirely on the ability of those who are doing the evaluating.
This makes the appointments to the staff and the delineation of privileges especially important. To perform these functions fairly and objectively, the medical staff should set up a system to evaluate each applicant and determine his hospital privileges on the basis of professional competence. Individual character, training, experience, and ability should be the criteria for selection. Under no circumstances should accordance of staff membership or professional privileges in the hospital be dependent solely upon certification, fellowship, or membership in a specialty body or society. Neither should appointments be denied on the basis of hospital bed capacity or selfish competitive motives on the part of the staff.”

Plaintiffs also urge that their admission to the Morristown Memorial Hospital staff serve a purpose of lightening the occupancy rate at that hospital because plaintiffs have successfully urged a great majority of their patients to use St. Clare’s and will continue to do so. This seems borne out by their testimony, but I do not find it of sufficient importance to a decision other than to note it in passing.

Assuming an open staff at Morristown Memorial Hospital of all qualified obstetricians, including plaintiffs, the hospital would notify all staff members when the occupancy rate reached an unmanageable proportion and advise them that they must take their patients to other hospitals. This solution, I find, poses several difficulties, as follows: The patient does not have the choice of a hospital. The last-minute switch to a hospital that she does not prefer may have a deleterious effect upon her health. The matter of pre-registration of mothers, a common practice at maternity hospitals, is not possible except on an inter-hospital cooperation basis.

There was testimony pro and con respecting the shifting of mothers to another hospital, depending on occupancy rate at the time. I conclude that common sense preponderates in favor of not shifting, once a prospective mother has chosen a hospital. “Service to the public” is one of the criteria of our cases. There is no suggestion that the Department of Institutions and Agencies of this State, which exercises a measure of control over hospitals, has urged open staffs, geographical limitations, and shifting patients. Such controls may become necessary, but until they do, courts should be reluctant to order such measures.

Doctors specializing in obstetrics would be required to be on the staffs of several hospitals, so that if one hospital were crowded, he could deliver his patient at another. This solution presupposes that the other hospitals in the Morristown area would admit those doctors practicing at Morristown Memorial Hospital. Members of the staff at Morristown Memorial Hospital, with one exception, do not have privileges at the other three hospitals in Morris County. All but two are sole practitioners.

There was testimony that obstetricians may conveniently practice at more than one hospital. In fact, Dr. G-uttmacher regularly did so. I am persuaded, however, by the testimony of Dr. Margaret Doyle, a member of the OB staff of Morris-town Memorial Hospital, that practice by a single practitioner at two hospitals presents dangers to patient care in that two patients may be in labor at two hospitals some eight miles apart; that the difference in hospital facilities or staff cooperation could represent a danger to the patient. Obstetricians tend to work with certain pediatricians or other specialists in one hospital. Thus, it would be essential for staffs to be open not only to OBS, but to every other specialty.

Plaintiffs’ suggested alternative of a geographical limitation on obstetrical admissions by Morristown Memorial Hospital requires a discussion of the facts involved in those obstetrical admissions. Plaintiffs would have the court find that a more reasonable solution to the hospital’s problem is for it to declare and fix a geographical limitation on obstetrical admissions. The geographical limitation suggested is most graphically shown on a large map (marked only D-14 for identification, but used by the court, with consent). This exhibit notes areas as follows, based upon 1800 births at the hospital:

No. of Births Percentage

Primary and secondary area 1533 85.2

Peripheral area 157 8.7

Kemote 110 6.1

It is true, as plaintiffs urge, that Mr. Boyd, the hospital’s administrator, in his letter to Commissioner McCorkle of State Department of Institutions and Agencies gives credence to plaintiffs’ contention that the hospital does have a primary area of service obstetrically in the southern part of Morris County. However, the figures in evidence and the hypothetical question indicate a substantial number of obstetrical patients are from beyond the primary area of the hospital’s service, and under plaintiffs’ plan they would be excluded from Morristown Memorial Hospital.

In the absence of any policy instituted by the Department of Institutions and Agencies, I conclude that there is no legal basis upon which a court in this State may directly or indirectly fix geographical limitations for admission of hospital patients to a private hospital such as defendant hospital.

It is apparent to the court that the passage of A. M. # 550 is financially beneficial to the present members of the obstetrical staff at defendant hospital. It is true, too, that an examination of the OB-GYN department’s minutes indicates no profound grasp of the hospital’s problems, or future development, and docs evidence a rather parochial viewpoint. Dr. Doyle was the only member of the staff to testify, and I was impressed with her candor and her testimony on multiple hospital practices.

Nor do I find from the evidence that Mr. Boyd served only the interest of the OB-GYN staff. As administrator faced with a problem — namely, an occupancy rate in OB-GYN that should cause “concern” (admittedly) — he was under a duty to marshall the facts, inclusive of a determination of the intentions of present staff members. Ilis letter to Commissioner MeCorklo says, in part:

“Briefly summarized, we must conclude that, for the reasons cited above, we could accommodate OBS patients who would otherwise be going to All Souls’ Hospital only to the extent that they would come to us through obstetricians who are already members of our staff. In planning to do so, however, we recognize that we may occasionally inconvenience our maternity patients by denying them single occupancy of a 2-bed room (of which we have 15). It is also possible that the additional patients may cause excessive occupancy of our OBS-GYN Department.”

This letter certainly can bo misread to say “We can take all the babies we can get, but no more doctors.” It also may be read in conjunction with the statistics on page 2 of the same letter to indicate that Mr. Boyd believes that these are the patients who would normally come to Morristown Memorial Hospital. One cannot read into this letter fairly an attempt to get other doctors’ patients for the staff of Morris-town Memorial Hospital. In fact, we do not know whose patients they were. Mr. Boyd may he said to be an austere witness, but I found him honest.

It is true that at one point he did suggest that patients follow doctors. But he receded from that position and admitted that patients do like to go to the nearest well-conducted hospital and that plaintiffs will find it difficult to practice ■obstetrics in a community in which they do not have an obstetrical hospital appointment. He frankly conceded that the hospital’s choice of closing the staff was a difficult one to make.

I understand the reasons for plaintiffs’ questioning the motivation for A. M. # 550. In analogous situations, testing the reasonableness of a zoning ordinance, our Appellate Division put it this way:

. «# * * Reasonableness is a two-sided coin. On one side is the adverse impact of the restriction upon him who asserts its unreasonableness. On the other are the social and policy considerations which led to the adoption of the regulation. The final assessment of reasonableness involves a balancing of the considerations on one side of the coin as against those on the other. The more cogent the social pressures impelling the adoption of the restriction the greater the permissible abrasion of the interests of the individual affected. The testimony in question went to the manifold considerations authorized by the zoning statute which inspired the particular restriction here attacked. While it has been held that an inquiry into legislative motivation will not be permitted in order to impugn the reasonableness of legislation valid on its face, 5 McQuillin, Municipal Corporations (3rd ed. 1949), § 16.90 p. 323; Sunny Slope Water Co. v. City of Pasadena, 1 Cal. 2d 87, 33 P. 2d 672. 677 (Sup. Ct. 1934), yet courts will consider evidence with respect to the purpose, object, reason, necessity and effect of an ordinance where the factors bearing upon its reasonableness are not manifest on its face.” (Citing cases) Clary v. Eatontown, 41 N. J. Super. 47, 71 (1956)

And yet, in using this analogy to our zoning cases, I think we must keep always in mind the admonition of Justice Jacobs in Greisman v. Newcomb Hospital, supra:

“Hospital officials are properly vested with large measures of managing discretion and to the extent that they exert their efforts toward the elevation of hospital standards and higher medical care, they will receive broad judicial support. * * *” (40 N. J., at pp. 403-404)

Also, another admonition in zoning cases by Justice Jacobs in Ward v. Scott, 16 N. J. 16 (1954) :

“* * * And their determinations should not be approached with a general feeling of suspicion, for as Justice Holmes has properly admonished: ‘Universal distrust creates universal incompetence.’ Graham v. United States, 231 U. S. 474, 480, 34 S. Ct. 148, 151, 58 L. Ed. 319, 324 (1913).” (at p. 23)

As I say, one may question the wisdom and even the motives of the OB staff. Their view was considered, but other factors were fully considered by the administration in adopting A. M. 550. I find that the administration acted from honest motives.

I find that Mr. Boyd, the hospital administrator, not only requested reports from the department of obstetrics, Dr. Letourneau and Mr. Sweetland, a hospital consultant, but also collected statistical information concerning the potential patient load diverted from All Souls’ to the Morristown Memorial Hospital. All this information is in evidence. All was submitted to the joint conference committee and to the committee of managers on March 27, 1968. The managers determined to defer obstetrical appointments, including plaintiffs’. The managers approved Mr. Boyd’s reply to Commissioner McCorkle, dated March 28, 1968.

Plaintiffs urge that A. M. 550 was “a response to these judicial pronouncements (Falcone, Greisman, and Sussman) rather than, as the hospital urges, a reaction to the bed shortage problem.” They urge that “by coincidence or otherwise,” the hospital, through the device of A. M. # 550, may reject staff members without assigning any particular reasons, thus circumventing the cases cited.

The answer to this, in the court’s view, is that the hospital has already conceded that plaintiffs are fully qualified; Mr. Boyd forthrightly testified, and I believe him, that he would “recommend the end of the policy [closing the staff] as soon as possible.”

It would appear to the court that when more obstetrical beds become available, or the percentage of occupancy is reduced to manageable proportions, or there are staff vacancies for any reason, that failure to admit physicians on the qualified list in order would steer the hospital into a collision course with the court.

I come to the conclusion that the hospital’s action in adopting A. M. # 550 should be sustained by the court. In view of the nature of the dispute, and of plaintiffs’ right to contest the policy, no costs are allowed.

       In the case of Dr. Munro’s application, the name inserted at this point was “Dr. Davis.”

      Our Managers took these actions on the following dates: “Medical-surgical — 10-15-67 OBS-GYN — 3-27-68 Psychiatric — 1-3-68”


source: Caselaw Access Project

author: McGann, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DANIEL D. RICHARDS, DEFENDANT-APPELLANT.
    Monmouth County Court Law Division
    Decided June 4, 1969.

      Mr. John A. Petillo, Assistant Prosecutor, for the State of New Jersey (Mr. Vincent P. Keuper, Monmouth County Prosecutor).

      Mr. Daniel D. Richards, pro se.

      Pindar, McWlroy, Qonnell, Foley and Geiser, Attorneys for New Jersey Highway Authority, amicus curiae (Mr. Peter D. Manahan on the brief).
   McGann, J. C. C.

Defendant appeals from a conviction in the Holmdel Township Municipal Court of failing to pay a toll on the Garden State Parkway in violation of Article 1.3.1 of the Regulations Governing the Use of the Garden State Parhway adopted by the New Jersey Highway Authority.

The undisputed facts are as follows: On April 12, 1968, at about 10 a.m„, defendant was operating his vehicle in a southerly direction on the Parkway. He had three passengers with him. He left the Parkway at the Red Hill Road exit in Holmdel Township. A ramp-type toll collecting area has been established by the Authority at this point and a toll charge of 10/ had been set for vehicles leaving the Parkway at that exit. As he approached the toll booth defendant brought his vehicle to a stop. There was no toll collector on duty but there was a basket-type collection device with signs displayed indicating that the 10d toll be deposited therein. There was also a sign bearing this legend:

“Patrons without change please use envelope.”

Parkway self-addressed envelopes were available. Postage had to be affixed by the user. (If defendant had taken an envelope he would have found therein a card which, among other items, bears the message “This return envelope is furnished as a convenience to motorists not having change to pay toll. Kindly attach amount shown at right. Thank you. Mail payment within 10 days or give to a Toll Collector.”) There is no warning to the motorists that failure to take an envelope will result in a violation of the law.

Defendant did not have 10^ in change, although he had currency in larger denominations. He asked his passengers if they had change. They did not. He then drove ahead without taking an envelope which he knew was available.

Hidden inside the toll booth was a security inspector employed by the Authority. Noting that defendant had neither paid the toll nor taken an envelope he radioed a description of the vehicle to a New Jersey State Police car stationed by pre-arrangement at the end of the exit ramp. A summons and complaint for the violation was issued to defendant. (I find that had defendant taken an envelope no prosecution would have ensued —■ even if he had subsequently discarded the envelope.)

After the de novo hearing on the appeal an opportunity was given to defendant and to the State to submit briefs. The court also requested the New Jersey Highway Authority to file a brief amicus curiae.

The New Jersey Highway Authority, which operates the Garden State Parkway, is a legislative creation. Its powers are limited by the legislative grant. State v. Hubschman, 81 N. J. Super. 452 (Cty. Ct. 1963).

Statutory authority for the charging of tolls may be gleaned from the following.

N. J. S. A. 27:125-5:

“The Authority shall be a body corporate and politic and shall have perpetual succession and shall have the following powers:
(i) To fix and revise from time to time and charge and collect tolls or other charges for transit over or use of any project acquired or constructed by it;
(j) To establish and enforce rules and regulations for the use of any project;
* * * * * *
(s) To do all acts and things necessary or convenient to carry out the powers and duties expressly provided in this act.
Hi :> >;: * Hi * *

N. J. S. A. 27:125-14:

“The Authority is hereby authorized to fix, revise, charge and collect tolls and charges for the use of each project. * * *"

N. J. S. A. 27:125-18:

“(a) No vehicle shall be permitted to make use of any project except upon the payment of such tolls as may from time to time be prescribed by the Authority. It is hereby declared to be unlawful for any person to refuse to pay or to evade or to attempt to evade the payment of such tolls.
$ $ $ 3? * * $ *
(l) Except as provided in paragraph (j) or (k) of this section, any violation of any of the provisions of this section, including but not limiting to those regarding the payment of tolls, and any violation of any regulation adopted by the Authority under the provisions of this section shall be punishable by a fine not exceeding two hundred dollars ($200.00) or by imprisonment not exceeding thirty days or by both such fine and imprisonment. * * *
(m) In any prosecution for violating a regulation of the Authority adopted pursuant to the provisions of this section, copies of any such regulation when authenticated under the seal of the Authority by its secretary or assistant secretary shall be evidence in like manner and equal effect as the original.

After the hearing on the appeal the court, sua sponte, requested and received a certified copy of the Regulations Governing Use of the Garden State Parkway. These regulations are available on request to motorists using the Parkway. State v. Hubschman, supra, at p. 456. Among those regulations is Article 1.3.1, applicable to the instant case:

“Tolls. It is hereby declared to be unlawful for any person to refuse to pay, or to evade the payment of tolls. Tolls shall be paid for the passage of all vehicles on the Parkway in amounts and at the locations designated in the following schedule.”

The Holmdel toll area is designated in the schedule referred to as a ramp-type area with a toll of lQf for passenger vehicles.

It is to be noted that there is no statutory or regulatory exposition of the manner in which tolls are to be collected. The court takes judicial notice that the Authority collects tolls in the “barrier”-type toll areas by means of toll collectors or automatic machines. There are personnel on duty at all hours for the purpose of making change in addition to collecting the tolls. Some “ramp”-type toll areas do not have personnel on duty at all hours of the day. The Authority has adopted the practice, where the toll booth is unmanned, of seeking to collect tolls in the manner testified to in this case.

As a matter of contract law there is no question but that the motorist is liable for payment of the toll. Nicholson v. Williamstown & Good Intent Turnpike Co., 28 N. J. L. 142 (Sup. Ct. 1859). The issue here is whether the Authority may enforce the payment of tolls by means of a qwcm-eriminal prosecution.

Defendant directs his argument to the statutory language contained in N. J. S. A. 27:125-18(a). That language is incorporated in Article 1.3.1, except that the words “or attempt to evade” are omitted. Specifically, defendant argues that he never refused to pay since no one ever asked him. He argues that ho would have been quite willing to pay if the Parkway had provided someone to make change; that he did not evade or attempt to evade payment; that he simply did not pay.

The Authority has adopted no regulation that motorists must at all times carry with them exact change for payment of tolls or run the risk of prosecution. If a motorist should suddenly become aware that he had no money with him after entering upon the Parkway and so informed an attendant at a toll booth, it could not reasonably be conceived that a complaint such as this would issue against him. If that be so, this case, from the motorist’s point of view, is even stronger. On the proofs, not only did defendant have money, but was quite willing to pay the toll. The Authority’s position in essence is this, i. e., at an unmanned toll booth, if the motorist does not take an envelope (not having deposited the toll), he is to be deemed evading or attempting to evade payment. That proposition defies logic. Under the Authority’s practice, if a motorist really desired to evade payment of a toll — with impunity — he need simply take an envelope each time he passed through an unmanned toll area!

The fact is that the Authority has passed no regulation requiring the payment by motorists of tolls at unmanned areas according to the fashion which has been adopted. Defendant is being prosecuted for failure to comply with a procedure allegedly encompassed by a regulation which makes no mention of that procedure.

Cases cited by the amicus as being analogous, involving prosecutions for failure to deposit coins in parking meters, are not analogous. The motorist always has free choice whether to park or not. Let us suppose however that there was a prosecution for failure to deposit the amount required in a municipal parking meter. Let us suppose that the municipality never adopted an ordinance authorizing the installation of the meters even though it had the statutory right to do so under its traffic regulating powers. R. S. 39:4—197 (l) (/); Board of Commissioners of City of Newark v. Local Government Board, 133 N. J. L. 513 (Sup. Ct. 1945). That would be an analogous situation and a conviction in this case can no more be sustained than it could be in the hypothetical situation proposed.

Under the facts of this case I find that defendant neither refused, evaded nor attempted to evade the payment of the toll. The judgment of conviction is accordingly reversed.


author: Seidman, J. C. C.

text:
    STELLA MAE JACKSON, PLAINTIFF, v. THE PRUDENTIAL INSURANCE CO. OF AMERICA, A CORPORATION OF THE STATE OF NEW JERSEY; RONALD ODELL JACKSON, AN INFANT, BY HIS GUARDIAN AD LITEM, MARTIN KRAFT; ELLEN C. BEVERLY; AND DELMAS L. JACKSON, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 26, 1969.

      Mr. James B. Brown, Jr., for plaintiff (Mr. Daniel L. Golden, attorney)..

      Mr. Nathan Kurtz, for defendant Ronald Odell Jackson, an infant, by his guardian ad litem, Martin Kraft.

      Mr. Michael A. Gohan for defendant Ellen C. Beverly (Mr. Edwin A. Kolodziej, attorney).

      Mr. George G. Kress for defendant Delmas L. Jackson.
   Seidman, J. C. C.

(temporarily assigned). Claudius Lee Jackson died April 20, 1966, as the result of a gunshot wound inflicted by his wife Stella Mae Jackson, plaintiff herein. Mrs. Jackson was subsequently indicted for manslaughter, tried and convicted. She instituted this suit against The Prudential Insurance Company of America to obtain the proceeds of a policy of insurance issued under the Serviceman’s Group Life Insurance Program, authorized by P.L. 89-214, 79 Stat. 880, 38 U. S. C. A. §§ 765-776, and underwritten by Prudential as the prime insurer. The amount of insurance afforded decedent was $10,000.

After obtaining an order to add as defendants plaintiff’s infant son, Eonald Odell Jackson; decedent’s mother, Ellen C. Beverly, and Delmas L. Jackson, decedent’s natural father, Prudential filed a counterclaim and cross-claim in the form of interpleader to have the rights of the parties to the money determined. The insurance proceeds were paid into court to await the outcome of the litigation, and the complaint was dismissed as to Prudential.

Decedent did not designate any named person as beneficiary; instead, he requested that payment be made in the order of precedence set forth in P.L. 89-214, 38 U. S. C. A. § 770 (a). This section provides, in pertinent part, that in the absence of a designated beneficiary, payment shall be made to the survivor or survivors in the following order: to the widow or widower; if none, to the child or children of the insured and descendants of deceased children, and if no surviving spouse or children or descendants of deceased children, to the parents of the insured or the survivor of them.

There is a tangled web of opposing claims. Mrs. Jackson demands the proceeds as decedent’s widow. The others are united only in their contention that the homicide precludes her recovery. Eonald Odell Jackson, represented by a guardian ad litem, asserts that he is next in line. The position of Mrs. Beverly is that she is the solo eligible party. She charges that Eonald is illegitimate, the decedent having been stationed with the armed forces in Greece for more than 11 months prior to the birth of the child. She also asserts the illegitimacy of the decedent, contending that she and Delmas L. Jackson had never been married. The latter seeks one half of the proceeds on the ground that the decedent was his natural son. The crux of the controversy is, of course, whether Mrs. Jackson, having caused the death of her husband, is debarred. That issue necessarily must be resolved first.

With respect to these proceedings, the fact that the plaintiff was convicted of manslaughter is not dispositive of the issue. It is true that generally, in a civil proceeding, “evidence is admissible of a final judgment against a party adjudging him guilty of an indictable offense in New Jersey * * * as against that party to prove any fact essential to sustain the judgment.” (Evidence Rule 63 (20); emphasis supplied). But Mrs. Jackson denied neither the homicide nor the conviction; and none of the parties sought to invoke the rule for any other purpose. Consequently, a plenary trial was had before the court, sitting without a jury, to determine whether the circumstances of the homicide were such as to prevent Mrs. Jackson from claiming the insurance proceeds.

Two versions of the homicide were developed at the trial. One was related by Mrs. Jackson; the other, testified to by Captain Silvio J. Donatelli of the Middlesex County Prosecutor’s office, consisted of statements allegedly made to him by Mrs. Jackson the night of the incident. At that time she and her husband, who was still in military service, lived in an apartment in New Brunswick. Mrs. Jackson testified that her husband had visited a friend earlier in the evening and had returned home about 11 p.m. While he was in the bathroom, she said, she removed a pistol from under the mattress in the bedroom and began playing with it, in the course of which she cocked the gun. She stated that she then went into the bathroom to get her husband to uncock the weapon. He warned her not to play with the pistol because it had a hair trigger. She walked forward with the gun in her right hand, placed her arms around her husband, and hugged him. At that moment, according to Mrs. Jackson, she heard her child cry out in an adjoining room. Startled, she jumped back; as she did so, the pistol went off and her husband was mortally wounded. Further interrogation by counsel elicited from Mrs. Jackson that she had drunk about half a pint of whiskey that night. In response to an inquiry by the court, she said she did not know why she had taken the gun from under the mattress.

Captain Donatelli testified that he began Ms interrogation of Mrs. Jackson, after advising her of her rights, at 12:55 A. M. following the shooting, and completed it about 3:40 a. m. Her recital of what had occurred was substantially as follows: During the afternoon she had looked after the children of Mr. and Mrs. Fisher, who lived nearby. Mrs. Fisher picked up the children at the Jackson apartment about 5 :30 p. m., but brought them back later while she and her husband went shopping. The children were taken home about 6 :25 p. ji. Mrs. Jackson and her husband went to a store to buy a half-pint of Old Crow and a large bottle of a soft drink, and they had a couple of drinks upon returning home.

At about 8 :40 p. m. Mrs. Fisher telephoned and said that her husband wanted to borrow some “brass” — apparently referring to buttons on a military uniform. Decedent left for the Fisher home, and Mrs. Jackson remained home watching television. She finished the half-pint of Old Crow and also drank two bottles of ale. Later on she called the Fishers to inquire when her husband intended to come home. After he returned, as both lay on the bed, Mrs. Jackson said to him, “Claudius, tell me the truth, what took you so long?” He responded, “Nothing; I was just yacking,” and then went into the bathroom. Mrs. Jackson took the gun from under the mattress, walked into the bathroom, pointed the gun at her husband, and said, “Tell me the truth or I’ll shoot you.” He laughed and she then said, “Don’t laugh or I’ll shoot you”. He replied, “Stella, don’t wave that gun,” and then jumped up from the commode. Although Mrs. Jackson claims she heard no noise, she saw her husband holding his chest. He walked toward the front door and collapsed.

Although, in rebuttal, Mrs. Jackson did not deny the quotations attributed to her by Captain Donatelli, she stated she could not recall anything she had said to the detective during the questioning. She insisted that she had not intended to harm her husband.

Depending upon what is proven, a homicide may constitute the crime of murder, either first or second degree, or manslaughter, voluntary or involuntary. N. J. S. A. 2A: 113—1, 2A :113-2, 2A :113-5. But it may also be the result of misadventure, or in defense, or to prevent certain felonies, in which case the slayer is guiltless. N. J. S. A. 2A :113-6. ETo matter which version of the occurrence in question is accepted, it is clear that the homicide was not in self-defense, nor was it to prevent a felony. Plaintiff contends that the shooting was accidental and without any intention of hurt; for this reason, the death being through misfortune or misadventure, she claims she ought not to be barred from receiving the insurance proceeds. She urges, in addition, that even if the homicide constituted manslaughter, she is still entitled to the money. Defendants do not concede that the mishap resulted from accident. Their position is that Mrs. Jackson intentionally killed her husband, and that she is thereby barred from the proceeds.

It is the law of this State that a beneficiary who murders an insured is precluded from recovering the proceeds of a policy of insurance on the life of the victim. Swavely v. Prudential Ins. Co. of America, 10 N. J. Misc. 1, 157 A. 394 (Sup. Ct. 1931); Merrity v. Prudential Ins. Co. of America, 110 N. J. L. 414 (E. & A. 1933); Turner v. Prudential Ins. Co. of America, 60 N. J. Super. 175 (Ch. Div. 1960). This is so because to permit a murderer to retain property acquired by his crime is contrary to public policy and violates the common law precept that no one shall be allowed to profit by his own wrong. Neiman v. Surf, 11 N. J. 55 (1952); In re Estate of Kalfus, 81 N. J. Super. 435 (Ch. Div. 1963); Estate of Wolyniec v. Moe, 94 N. J. Super. 43 (Ch. Div. 1967).

At the other end of the spectrum is accidental homicide, in which case the rule appears to be that the slayer can acquire the property of the deceased or the proceeds of insurance on the deceased’s life. In Campbell v. Ray, 102 N. J. Super. 235 (Ch. Div. 1968), the court said:

“The question presented here flack of mental capacity! has been answered in the decisions of courts of other jurisdictions. A reading of those decisions leads to the conclusion that there are three situations in which acquisition of property from one deceased is permitted to his slayer even though the events leading to the transfer of the properly in qxiestion were initiated by a murder. Thus, it has been held that a wrongdoer may acquire property from his victim if the slayer is insane at the time of the commission of his act if the killing was accidental or in self defense, or if the wrongdoer was convicted of the reduced charge of manslaughter.” (at p. 239)

On the issue of accidental homicide, the cases of Shoemaker v. Shoemaker, 263 F. 2d 931 (6 Cir. 1959), and Jamison v. Metropolitan Life Ins. Co., 24 Tenn. App. 398, 145 S. W. 2d 553 (Ct. App. 1910), suggest by inference that a slayer is permitted to recover insurance proceeds if it is established that the killing of the insured was accidental.

There is no reported case in this State which definitely resolves the problem of whether a beneficiary who kills the insured can receive the insurance proceeds where the homicide is determined to be manslaughter. Does manslaughter bar the slayer regardless of whether it is voluntary or involuntary? If so, it would follow that the beneficiary can prevail only if the proofs establish an accidental killing or any kind of justifiable or excusable homicide. On the other hand, if manslaughter, whether voluntary or involuntary, is not a bar, then is the beneficiary entitled to the proceeds unless the proof establish murder? Is recovery barred in the case of voluntary manslaughter, but not in the case of involuntary manslaughter ?

The basic concept, as set forth in Schreiner v. High Court, I. C. O. F., 35 Ill. App. 576 (App. Ct. 1890), is that while a beneficiary cannot recover where the death of the assured has been intentionally caused by his act, if the homicide is the result of carelessness and is not intentional, it does not bar the beneficiary’s rights under the policy. Two frequently cited cases are Metropolitan Life Ins. Co. v. Mc David, 39 F. Supp. 228 (E. D. Mich. 1941), and United States v. Kwasniewski, 91 F. Supp. 847 (E. D. Mich. 1950). McDavid involved the question whether a wife who had killed her husband in circumstances establishing the crime of manslaughter was barred from receiving the proceeds of a policy on the decedent’s life. The court comprehensively reviewed existing law:

“* * * This court now finds the fact to be that Mrs. McDavid at the time she killed her husband was not intoxicated, she was of sound mind, she was not acting in self-defense. Her husband had given her provocation for being angry, she was angry, there had not been a cooling time, she intended to kill her husband, and she did kill him.
Do these findings of fact bar her from receiving and enjoying the proceeds of the life insurance policies in force upon her husband’s life at the time of his death? No case from any court has been found which passes upon this question where this kind of mansalughter is involved. There are many cases holding that murder by the beneficiary of the insured bars a recovery of the benefits. * * ... While all of these adjudicated cases were in fact murder cases, the underlying reason why recovery was denied was not because the manner of death was murder, but because the killer while of sound mind, and not in self-defense, intentionally killed the benefactor. This brief definition fits all of those cases and, to the extent that the opinions go beyond that definition and say that all murder will bar, the opinions are dictum. * * * No cases have been found which hold that a person is barred from receiving the benefits under a life insurance policy or under a will, or by inheritance, unless he killed and intended to kill the person from whom he was to receive the benefits. In other words, as far as the law has ever gone is to prevent the recovery of benefits which would not have become due and payable except for the intentional taking of the life of the benefactor.
Now, in the same way, there are many decisions which hold that a beneficiary guilty of manslaughter is not barred from recovery in cases which are called manslaughter cases. These eases, which have held that there can be recovery and which are called manslaughter cases, are all cases in which there was no intent on the part of the killer to take the life of the benefactor. Minisian v. Aetna Life Ins. Co., 295 Mass. 1, 3 N. E. 2d 17; Schriener v. High Court, 35 Ill. App. 576; Metropolitan Life Ins. Co. v. Hill, 115 W. Va. 515, 177 S. E. 188; Throop v. Western Indemnity Co., 49 Cal. App. 322, 193 P. 263; Hull v. Metropolitan Life Ins. Co., 26 Pa. Dist. R. 197; see Restatement, Restitution, § 187, Comment e. Cf. In re Wolf, 88 Misc. 433, 150 N. Y. S. 738; In re Sparks’ Estate, 172 Misc. 642, 15 N. Y. S. 2d 926. * * *
It is necessary to keep in mind that running through the adjudicated cases the real reason for not permitting recovery is that the beneficiary intentionally took the life of the insured and that the intentional act should not place the beneficiary in position to enjoy a benefit which would not have been enjoyed and could not have been enjoyed except for the wicked intentional killing. That manner of reasoning which has controlled these murder cases applies equally well to the case at bar, which is a manslaughter ease because here the beneficiary intentionally took the life of the insured.”

In Kwasmewski defendant shot and killed his wife, the mother and principal beneficiary of the insured, who had died in military service, leaving a policy of National Life Insurance in which defendant, the step-father of the serviceman, was named as contingent beneficiary. Although Kwasnieski was acquitted of the murder charge, the jury having found that the killing occurred during a period of temporary insanity, the court, in the civil proceeding to determine who was entitled to the insurance proceeds, held that the homicide was intentional and felonious, differentiating a killing during a moment of temporary insanity, induced by emotional disturbance, from a murder by an insane person. The court noted that recovery is allowed in cases of involuntary manslaughter where an unintentional killing results from the commission of an unlawful act not amounting to a felony or from gross negligence.

In the case of Throop v. Western Indemnity Co., 49 Cal.App. 322, 139 P. 263 (D. Ct. App. 1920), decedent’s husband, who had caused her death by accidentally discharging a shotgun, was permitted to recover the proceeds of accident insurance policies, even though the husband was found grossly negligent. The rationale is discussed in the ease of Prudential Ins. Co. of America v. Harrison, 106 F. Supp. 419 (S. D. Cal. 1952). Under California law, manslaughter is either voluntary, upon a sudden quarrel or heat of passion, or involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. The former involves an intent to kill] in the latter the killing is unintentional. Harrison distinguishes McDavid and Throop:

“* * * Mr. Throop committed a wrong when he carelessly toyed with a loaded shot gun in front of his wife. But his acts which led to the discharge of the gun with fatal results did not proceed from an intent to do any wrong. His was a tort of omission, rather than of commission. He did not intend to do any illegal act. He was careless and negligent, even grossly negligent. He did not intend to hurt his wife to any extent. In this he differed from Sirs. McDavid. Her intent was generated and executed on a sudden quarrel, so it was robbed of malice and her crime but manslaughter. Mr. Pounds’ intent (the slayer in Harrison) differed from Mr. Throop’s. The latter meant only to handle a gun. In this he disregarded rules of safety. Mr. Pounds intended to manhandle his wife. He meant to commit battery. He committed a very substantial battery. Public policy is against chastisement of the kind he intended to administer his wife. Public policy abhors settlement of disputes, even marital quarrels, by violence. When Mr. Pounds went against that public policy, it rose up to bar him from benefiting from even its unintended consequences. The Court is convinced he did not intend the result. Conviction is equally firm that he did intend to inflict hard physical blows upon his wife. He wilfully entered a forbidden activity of a kind which often brings about results of the sort which developed here. His offense was not mere negligence. He intended to do a physical hurt. He cannot benefit from the miscalculation which led him to injure beyond his intention. Although guilty only of involuntary manslaughter, the wrong out of which the manslaughter grew was wilful and of a type known sometimes to produce the result which it did produce. This bars him from profiting thereby.”

It is clear from these eases that the underlying principle is not so much whether the homicide is technically classified as murder or manslaughter, or, in the latter case, whether the manslaughter is- voluntary or involuntary, although the essential elements of each offense are of importance. The true test is whether the beneficiary intentionally took the life of the insured. See also Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 3 N. E. 2d 17 (Sup. Jud. Ct. 1936); Jamison v. Metropolitan Life Ins. Co., supra; Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S. W. 2d 857 (Sup. Ct. 1949) ] United States v. Burns, 103 F. Supp. 690 (D. Md. 1952); Carter v. Carter, 88 So. 2d 153 (Fla. Sup. Ct. 1956); Chase v. Jenifer, 219 Md. 564, 150 A. 2d 251 (Ct. App. 1959); Rosenberger v. Northwestern Mutual Life Ins. Co., 176 F. Supp. 379 (D. Kan. 1959); In re Estate of Mahoney, 126 Vt. 31, 220 A. 2d 475 (Sup. Ct. 1966).

Thus, in the present ease the court must determine from the conflicting proofs what actually occurred on the night in question, and whether the homicide was accidental or otherwise unintentional, or intentional. Mrs. Jackson contends that the shooting was accidental and thus without intent to harm decedent. If her version of the occurrence is accepted, the homicide could conceivably bo considered the result of misadventure. Homicide through misadventure occurs where a person is doing a lawful act, without any intention of hurt, and unfortunately kills another. 2 Schlosser, Criminal Laws of New Jersey, § 1448, p. 697. At worst, the act would constitute involuntary manslaughter, if it should be determined that the handling of the gun was reckless and wanton and of such character as showed an utter disregard for the safety of another in circumstances likely to cause death. State v. Weiner, 41 N. J. 21, 26 (1963).

However, Mrs. Jackson’s explanation of the occurrence is not credible. It is wholly unlikely that, for no apparent reason other than a whim, she would take the pistol from under the mattress, cock it, and then seek the aid of her husband to render it safe. Captain Donatelli’s account of what plaintiff told him within a few hours of the shooting is more acceptable. The court finds the facts to be that when decedent returned home after visiting his friend, his wife demanded an explanation for the length of Ms absence: that his response did not satisfy her; that after he went into the bathroom she took the gun, followed him and threatened to shoot Mm if he did not tell her the truth; that she repeated her threat to shoot when he laughed at her, and that the gun was then fired, causing Jackson’s death. It is not entirely clear from the evidence before the court whether Mrs. Jackson deliberately pulled the trigger or whether it was discharged because of pressure on what she described as a “hair trigger.”

The court does not consider the homicide to have been a willful, deliberate and premeditated killing which would constitute the crime of murder in the first degree. It is also clear that the act was not voluntary manslaughter, which is a slaying committed in a transport of passion or heat of blood induced by an adequate provocation, provided the killing occurs before the passage of time sufficient for an ordinary person in like circumstances to cool off. State v. Guido, 40 N. J. 191, 209 (1963); State v. Wynn, 21 N. J. 264, 270 (1956). Mrs. Jackson may have been angered by her husband’s refusal to answer her question, and further annoyed by his laughing at her, but there are no facts to justify the conclusion that she was so enraged as to prevent thought and reflection, or that there was adequate provocation for her conduct. 1 Wharton, Criminal Law and Procedure, §§ 275, 276.

It is elementary law that a homicide with a deadly weapon in itself justifies a factual presumption of an intent to take life. State v. Maioni, 78 N. J. L. 339 (E. & A. 1909); State v. Jones, 115 N. J. Law 275 (E. & A. 1935); State v. Peterson, 10 N. J. 155 (1952); State v. Beard, 16 N. J. 50 (1954). Even if Mrs. Jackson did not intend to kill her husband, it can be inferred from her threats and the brandishing of the gun that her intent was at least to do grievous bodily harm if he did not answer her questions. Alternatively, if the killing was in the heat of passion, it was without justifiable provocation. In either case, the killing is classified in the criminal law as murder in the second degree. 1 Wharton, op. cit., § 265; State v. Gardner, 51 N. J. 444, 445 (1968).

Regardless of the category in which the homicide in this case is to be placed, the killing resulted from an intentional act on the part of Mrs. Jackson, and not from accident or carelessness. As was said in Prudential Ins. Co. of America v. Harrison, supra, public policy abhors settlement of disputes by violence. Mrs. Jackson ought not to be permitted to profit from her wrongdoing in the existing circumstances. The court concludes, therefore, that she is precluded from receiving the proceeds oí the policy of insurance on the decedent’s life.

The issue now to be determined is which of the remaining claimants is entitled to the proceeds. It has been adjudicated in this State that in cases where the courts will not allow a wrongdoer to enrich himself as a result of his own criminal acts at the expense of an innocent person, equity raises a constructive trust which it imposes on the property in question because of the unreasonable mode of its acquisition and thereby prevents unjust enrichment of the wrongdoer. Campbell v. Ray, supra. See also Neiman v. Hurff and In re Estate of Kalfus, supra. A slayer who is next of kin of an intestate victim is a constructive trustee for the other heirs or next of kin. Estate of Wolyniec v. Moe, supra.

Eonald Odell Jackson claims the proceeds, contending that he is decedent’s son. Both Ellen 0. Beverly and Delmas L. Jackson assort that decedent was not the father of the child, and that the claimant, being illegitimate, is not a next of kin and therefore cannot take the proceeds. Their burden is a heavy one. A child born or conceived prior to the dissolution of the marriage is by the common law presumed to be the legitimate offspring of the husband and wife. Wallace v. Wallace, 73 N. J. Eq. 403 (E. & A. 1907); In re adoption by K., 92 N. J. Super. 204 (Cty Ct. 1966). The presumption is rebuttable. Wallace v. Wallace, supra; B. v. O., 50 N. J. 93 (1967); Cortese v. Cortese, 10 N. J. Super. 152 (App. Div. 1950). But, to establish the illegitimacy of a child born in wedlock, the proof must be such that "there is no possible escape” from that conclusion. In re Rogers’ Estate, 30 N. J. Super. 479 (App. Div. 1954); Egnozzi v. Egnozzi, 17 N. J. Super. 433 (App. Div. 1952). The presumption may be rebutted by proof of nonaccess. Wallace v. Wallace and In re adoption by K, supra; Annotation, "Presumption of legitimacy,” 7 A. L. R. 329 (1920).

The birth certificate of the child attests that he was born February 23, 1965, in Pulaski, Virginia. Claudius Lee Jackson is named therein as the father. Notwithstanding these facts, Mrs. Jackson revealed in her testimony that her husband was stationed in Greece for about 16 months while serving in the army, and that she became pregnant about three months after he had gone. She identified as the father one James Junior Hale. It is undisputed that decedent was overseas for more than a year, and that Mrs. Jackson resided in this country during that time. Appended to the trial brief submitted in behalf of Ellen C. Beverly is a copy of a request for admissions addressed to all the parties, indicating that decedent was out of the country from March 10, 1964 to August 31, 1965, and supported by a certificate issued by the Department of the Army setting forth not only the length of decedent’s assignment, but also the absence of any record showing the granting of leave for the purpose of returning to the continental United States.

From March 10, 1964 to February 23, 1965 there are 350 days. It is common knowledge that the duration of a human pregnancy is about 280 days; consequently, conception in this case should have occurred sometime in May 1964. Leaving aside, for the moment, Mrs. Jackson’s testimony regarding the paternity of the child, the question is whether a period of 350 days is so far in excess of the normal term of gestation as to make it impossible for the decedent to have been the father of the child.

In the case of Egnozzi v. Egnozzi, supra the court refused to presume such impossibility from an interval of 301 days, holding that the fact should be established by competent medical proof. It is noted that the case was one in which the plaintiff husband sought a divorce based on his wife’s alleged adultery. Proof of nonaceess for a period of 307 days was held, in Commonwealth v. Cicerchia, 177 Pa. Super. 170, 110 A. 2d 776 (Super. Ct. 1955), to be sufficient to rebut the Dresumption of legitimacy. In Commonwealth v. Young, 163 Pa. Super. 279, 60 A. 2d 831 (Super. Ct. 1948), the court found, in works on medical jurisprudence, references to protracted pregnancies of up to 334 days’ duration, and in one medical text-book there was a statement that pregnancy has been found to vary from 220 to 330 days, the average being 270 days. A period of 320 days, testified to by the complaining witness, was determined in Gillis v. State, 206 Wis. 150, 238 N. W. 804 (Wis. Sup. Ct. 1931) to be extremely rare and as establishing only a possibility of paternity. In re Mc Namara’s Estate, 181 Cal. 82, 183 P. 552, 7 A. L. R. 313 (Sup. Ct. 1919), which also reviews medical reports on delayed births, points out that any period in excess of 300 days is exceptional. None of these eases cites an example of a pregnancy that lasted 350 days.

The presumption of legitimacy, strong as it is, does not require that the possibility of non access be excluded to the point of absolute certainty. Our courts have spoken of “no possible escape” from the presumption. Elsewhere it is required that evidence of nonaccess be “clear and convincing,” or “strong and irresistible,” or “beyond all reasonable doubt”. See In re Findlay, 253 N. Y. 1, 170 N. E. 471 (Ct. App. 1930). What is meant by these pronouncements, according to Findlay is that the presumption will not fall unless common sense and reason are outraged by a holding that it abides.

Mrs. Jackson candidly admits that decedent was not the father of her child, and there is no reason to disbelieve her. She is not motivated by self-interest, since one may infer with reason that if she could not have the insurance money, it is unlikely she would wish to deprive her son of it. Her testimony, coupled with the uncontroverted fact of nonaccess for a period of more than 11 months, can lead to no other conclusion than that decedent was not and could not have been the father of Eonald Odell Jackson.

Counsel for the infant defendant argues, however, that if Mrs. Jackson is barred from recovering the proceeds, her child is rightfully entitled to them through her. He overlooks the principle that, as constructive trustee, Mrs. Jackson holds title to the proceeds for the benefit the other next of kin of decedent, a category which does not include the child. It is further urged that acquiescence to parenthood by married adults bars and estops a later denial of parenthood, but no cases are cited to support this proposition. Finally, the contention that Mrs. Beverly and Delmas L. Jackson have no standing to assert the illegitimacy of the infant defendant is without merit.

For the reasons stated, the court concludes that the infant defendant, Ronald Odell Jackson, is not entitled to the proceeds of the life insurance policy in question.

The parties have stipulated that Ellen C. Beverly is decedent’s mother, that Delmas L. Jackson was his natural father, and that the two were never married. It is also stipulated that decedent had not been adopted by Delmas L. Jackson.

Since Mrs. Jackson is precluded from recovering the proceeds, title to which vests in her as constructive trustee for the benefit of decedent’s other next of kin, and since Ronald Odell Jackson, being illegitimate, has no claim to decedent’s estate, it necessarily follows that Mrs. Beverly, decedent’s mother, is the next of kin who is entitled to the proceeds, subject only to the claim advanced by Delmas L. Jackson as decedent’s natural father.

Although Jackson concedes that he cannot inherit from his illegitimate son because of N. J. S. 3A: 4-7, he contends, nevertheless, that the right of inheritance is not involved and that he is entitled to share the proceeds as parent by virtue of the Servicemen’s Group Life Insurance Act, supra. His position is that the word “parent” in the statute includes the natural father. There is no need to determine the meaning of the act insofar as this case is concerned. But see Gibbs v. United States, 80 F. Supp. 907 (E. D. N. Car. 1948); Howard v. United States, 2 F. 2d 170 (E. D. Ky. 1924). A decedent’s spouse is the person to whom the insurance proceeds are initially payable in the absence of a designated beneficiary, and decedent’s parents are not entitled to the money unless there is no spouse or child. As has already been established, Mrs. Jackson has title to the proceeds, but she holds it as constructive trustee for the benefit of the other next of kin. The money goes to the one entitled thereto under our statute of distribution; consequently, Del-mas L. Jackson has no valid claim to it.

Judgment will he entered declaring that Stella Mae Jackson, Bonald Odell Jackson and Delmas L. Jackson are not entitled to and have no right in the insurance proceeds now on deposit with the clerk of the court, and that Ellen C. Beverly is entitled to the fund.


author: Gascoyne, J. C. C.

text:
    ROBERT DRAKE AND DOROTHY E. DRAKE, HIS WIFE, PLAINTIFFS, v. TOWN OF BOONTON, DEFENDANT-THIRD-PARTY PLAINTIFF, v. CATHERINE D. PHELAN, THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 9, 1969.

      Mr. James M. Kenihan, for plaintiffs (Messrs. Fullerton, Kenihan & Porfido, attorneys).

      Mr. Robert F. Tadlon for defendant-third-party plaintiff (Messrs. Maraziti & Maraziti, attorneys).

      Mr. John II. Orammond, for third-party defendant (Messrs. McDonald, Podesta & Meyers, attorneys).
   Gascoyne, J. C. C.

(temporarily assigned). This matter comes on before the court by way of a complaint in lieu of prerogative writs to compel defendant municipality to supply plaintiffs with water. There appears to be little or no factual dispute. The parties have stipulated the following facts:

(1) Plaintiffs are the owners of Lots 12, 13 and 14 as they appear on the tax map of the town of Boonton. These lots front on Green Street.

(2) On June 4, 1956 a resolution was duly adopted by the municipal governing body authorizing the entry into a contract with James W. and Catherine D. Phelan for the construction of a water main along Green Street.

(3) Pursuant to this resolution a contract was ultimately entered into by and between the parties. The contract is attached to the complaint. The Phelans constructed the water main and the main was accepted by the town pursuant to the resolution and the agreement, so that the town is presently the owner of this main.

(4) Plaintiffs filed an application in the proper form requesting that they be supplied with water. They were advised that before such application could be honored that they would have to pay their proportionate share of the cost of installation, in accordance with the terms of the contract.

(5) Plaintiffs refused to make such payment.

(6) There are other properties which face on Green Street.

It further appears from the undisputed facts that another property owner has complied with the terms of the contract and has paid a pro rata share.

Procedurally, Boonton, by leave of the court, has joined Catherine D. Phelan, as a surviving party to the contract, as a third-party defendant. Mrs. Phelan has filed an answer and counterclaimed, asking that the court declare the contract valid and binding on the Drakes. In the alternative, should the contract be held to be invalid, she asks the court to enter judgment against Boonton in the sum of $3,500, the agreed cost to the Phelans for the construction of the main. If the court refuses to do any of the foregoing, Mrs. Phelan requests that the ownership of the main be declared in her.

The legal questions as framed are: (1) Is the contract between the town and the Phelans valid? If so, is the contract entered into between the Phelans and the town enforceable against a third party, such as the Drakes? (2) Can the town be compelled to supply water to the Drakes? (3) If the contract is not valid, is Mrs. Phelan entitled to a judgment in the sum oi $3,500 against the town? (4) Or, in the alternative, is she entitled to have the ownership of such main returned to her?

It would appear from a factual point of view that initially when the Phelans applied to the town to have water supplied to them, the town refused to comply with this request of the extension of the water main to the Phelans’ property. The reasons given for this refusal were that the construction costs would be unreasonably high, due to the rocky terrain of the area; that at the time the Phelan residence was the only one situated on that part of Green Street, and therefore the return on the investment would be too small to warrant the cost of installation; and that there were no immediate prospects of development of the properties which could be serviced by the line.

It was under these circumstances that the resolution mentioned above was adopted, and the subsequent contract was entered into between the town and the Phelans.

A municipality has the power to enter into a contract for the construction of the necessary facilities to supply water within its boundaries. N. J. S. A. 40 :62-47 provides as follows:

“The governing body may adopt all ordinances and resolutions, enter into all agreements and contracts, and do all other acts necessary to provide water to the public and private uses of the municipality and its inhabitants in accordance with the provisions of 40:62-48 to 40:02-105 of this title.”

This broad grant of power to municipalities makes it clear that it is within their specific province to supply water to the residents within their boundaries. When it becomes necessary for a determination to be made respecting the enlargement or extension of a municipal water system, several factors come into play in which the discretion of the municipal officials may be exercised. This was set forth in Reid Development Corp. v. Parsippany Troy Hills, 31 N. J. Super. 459 (App. Div. 1954), which quoted the following from 56 Am. Jur., Waterworks, § 61, p. 966:

- “A municipality which, engages in furnishing water to its inhabitants is generally regarded as having a governmental discretion as to the limits to which it is advisable to extend its mains, and an extension will not be compelled by the courts at the instance of an inhabitant. Thus, it has been held that it is the function of the municipal authorities to determine when the necessity exists for the extension of a main to a particular territory, what size main is needed, and whether the financial condition of the city will warrant the expenditure, and their discretion, exercised in good faith, cannot be controlled by mandatory injunction. Accordingly, it is held in several cases that a municipality is not bound to furnish a supply of water to every inhabitant who demands it regardless of the expense involved or the returns that will result, and that there is no duty to extend water mains where the cost thereof and the return therefrom could be greatly disproportionate.” * * * (at p. 463)

The determination of the town officials not to extend water service to the Phelans in 19'56 thus was a proper exr ercise of discretion, taking into consideration their determination that the operation would not be economically feasible and that the return on the investment would be outweighed by its cost.

The municipality had the power to enter into an agreement with the Phelans with respect to the construction of a main at the expense of the individual property owner, so that the agreement per se was not illegal. Paragraph Sixth of the agreement provides:

“If any party owner desires to connect with said water system along the portion of the pipe installed by the party of the first part, the party of the second part herein shall first require said applicant to repay to the party of the first part a proportionate share of the cost of the installation of the water main.”

By this provision the municipality abdicated its function of collecting water rents under N. J. S. A. 40:62-77 to a private individual.

There is a complete absence of any authority in this jurisdiction, or in fact, any jurisdiction, which authorizes such abdication. As was said by Justice Heher in the case of Reid Development Corp. v. Parsippany-Troy Hills Twp., 10 N. J. 229 (1952) :

“The water facility is a municipally owned piiblic utility established under legislative authority. R. S. 40 :62-47, et seq. The provision of water for the public and private uses of the munieipalily and its inhabitants is the exclusive province of the local agency; and it is elementary that the exercise of the power must be in all respects fair and reasonable and free from oppression.” (at p. 232)

A review of the cases pertinent to this subject indicates that the municipality must adopt ordinances which are fair and just to all its inhabitants. Here there is no ordinance per se governing what would be a fair and just fee to a property owner fronting on Green Street.

In the second Reid case, as well as in Ecloss Co., Inc. v. Parsippany-Troy Hills Tp., 55 N. J. Super. 552 (App. Div. 1959), certification denied 30 N. J. 561 (1959), and in Lake Intervale Homes, Inc v. Parsippany-Troy Hills Tp., 28 N. J. 423 (1958), the court was concerned with the question of who should bear the ultimate cost of installation of extensions of the municipal water supply facilities. In each instance the developer bore the initial cost, but was subsequently reimbursed, at least partially, for that cost. Each case stands for the proposition that the municipality and the individual can enter into an agreement whereby the initial cost would be borne by the individual, but there would be reimbursement over a number of years from the revenues collected in the operation of the system.

Paragraph Sixth of the 1956 agreement is invalid and unenforceable in so far as it relates to the payment of a proportionate share to the Phelans by those who subsequently tie in to this water supply extension. An individual cannot act as a collector of revenues for a municipality.

Under the circumstances of this case, there would be no lawful reason why Boonton should not be required to supply water to the Drakes. The facility to accomplish this is now available and under the ownership and control of the municipality.

Since Boonton has now taken over the operation and maintenance of the extension, it would be inequitable to require the return of title to Mrs. Phelan. Nor 'would it be just to require her to bear the entire expense of the improvement.

Although this action has its venue in the Law Division pursuant to the rules, this being an action in lieu of prerogative writs the Superior Court has inherent equitable jurisdiction. N. J. Const. (1947), Art. VI, § 3, par. 4. The relief prayed for by the parties includes any other equitable relief that the court in its discretion deems fit.

One of the inherent powers of a court of equity is to grant reformation of a contract so that it conforms with what the parties intended. However, the court may not write a new contract for the parties but must look to the intent of the parties to determine if reformation is in order. S. P. Dunham & Co. v. 26 E. State St. Realty Co., 134 N. J. Eq. 237 (Ch. 1943). There is no question that the parties here intended that the initial cost of the installation of the water system would be borne by the Phelans, since the municipality felt that at that particular time the expenditure of municipal funds was unwarranted. It is equally clear that the municipality, upon completion of the installation, intended to take over the installation and to maintain it. A reading of the contract leads to the inescapable conclusion that the municipality felt that the Phelans ought to be reimbursed for this expenditure. The only defect in the contract was the method of reimbursement. The contract will therefore be reformed to provide as follows:

Third party defendant Catherine Phelan will be reimbursed in the sum of $3,500, which represents the total cost of the installation. Such reimbursement shall be paid out of revenues collected by the municipality from other persons who subsequently tie into the extension pursuant to ordinance or ordinances duly adopted by the governing body.

It would also seem to the court that the party who has already paid his pro rata share should be reimbursed for the excess over and above such share after the municipality has decided the reasonable assessment and/or tie-in fee that would be fair and just to all persons along the particular main.

Judgment in favor of the respective parties will be entered as follows: (1) plaintiff will be entitled to tie in, subject to payment of reasonable fee pursuant to duly adopted ordinance or ordinances; (2) title to the extension will remain in the Town of Boonton, and (3) Catherine Phelan is to be reimbursed in the sum of $3,500 under the conditions set forth above.