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

text:
    DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. AVA TRUCK LEASING, INC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT. DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. SWEETS CO. OF AMERICA, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1968
    Decided May 3, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Gerald Conway argued the cause for Defendant-Appellant and Cross-Respondent, Ava Truck Leasing, Inc. (Messrs. Schreiber & Lancaster, attorneys).

      Mr. William V. Rovelo argued the cause for Defendant-Respondent and Cross-Appellant, Sweets Co. of America, Inc. (Messrs. Moser, Roveto & McGough, attorneys).

      Mr. Bernard Chazen argued the cause for Plaintiff-Bespondent and Cross-Appellant (Messrs. Baker, Garber, Chazen & Dufy, attorneys; Mr. Nathan Baker, of Counsel).
   The opinion of the court was delivered by

Leonard, J. A. D.

Involved herein are two separate personal injury motor vehicle accident cases which were instituted by plaintiff against separate defendants and consolidated for trial.

On April 4, 1961, at or about 3:30 p.m., plaintiff, a salesman for Feldman Food Products, was operating a truck leased from defendant Ava Truck Leasing, Inc. (Ava) in a southerly direction on Park Avenue in Hoboken when he collided with a parked tractor-trailer from which merchandise was being delivered to the plant of defendant Sweets Co. of America, Inc. (Sweets).

Plaintiff testified that immediately before the accident he had traversed the crest of the Park Avenue Bridge. As he was descending the bridge at or about 20 to 25 miles per hour, he allegedly noticed the tractor-trailer parked across the sidewalk fronting Sweets’ warehouse. The tractor-trailer was blocking both lanes of southbound traffic on Park Avenue.

Plaintiff further testified that he attempted to apply his foot brake, but that the brake went down “flat against board.” Purportedly, he then started pumping his brake, but “nothing resulted from that.” Plaintiff stated that he attempted to shift into a lower gear, but was unable to do so. He asserted that he tried to apply his hand emergency brake, but could not slow his truck by such a procedure.

Plaintiff related that he had noticed that several cars were stopped behind the parked tractor-trailer. These cars, according to plaintiff, could not go around the tractor-trailer because of heavy northbound traffic on Park Avenue. Plaintiff testified that he could not move his truck into the left lane because such a maneuver would have produced a head-on collision with an automobile in the northbound traffic. Had plaintiff proceeded straight, he allegedly would have hit the rear of one of the cars stopped on account of the trailer. This, according to plaintiff, would have set up a “chain reaction of several cars.” Therefore, plaintiff chose to pull to the right into the slow lane and crash into the center of the side of the trailer.

Originally, plaintiff instituted an action against Ava, Yen-tre Trucking Company (Yentre), Pan Atlantic Steamship Corporation (Pan Atlantic) and Kelly Mitchell (Mitchell). Yentre and Pan Atlantic allegedly had proprietary interests in the tractor-trailer. Mitchell was the operator of the parked vehicle at the time of the accident.

Plaintiff dismissed his action against Pan Atlantic. The jury returned a verdict of $9000 in favor of plaintiff against Ava and verdicts of no cause of action in favor of defendants Yentre and Mitchell. However, the trial court granted Ava a new trial, a decision which we affirmed. Plaintiff has never appealed from the judgments in favor of defendants Yentre and Mitchell.

Plaintiff also brought an independent action against Sweets, alleging that Sweets “directed and participated in the improper and illegal [negligent] parking” of the tractor-trailer at its plant, and that Sweets, in so doing, created and maintained a public nuisance.

The suit against Sweets was consolidated with the retrial of plaintiff’s action aaginst Ava. At the close of the trial of the consolidated actions, the jury returned a verdict for $17,000 in favor of plaintiff and against both Ava and Sweets. Both defendants moved before the trial court for judgments n.o.v. or, in the alternative, for a new trial. Ava at this time also moved to amend its answer to assert a cross-claim for contribution against Sweets. It had not previously asserted such a claim.

The trial judge granted Sweets’ motion for judgment n.o.v. on the ground of collateral estoppel but denied its motions for a new trial and judgment n.o.v. to the extent that they were based on the alleged failure of plaintiff to make out a prima facie case of negligence against Sweets and on purported trial errors. All of Ava’s motions were denied.

Ava appeals from the judgment of the trial court against it, and from the denial of its motions for a new trial, and from the denial of its motion for permission to amend its answer to assert a cross-claim against Sweets. Ava also appeals from the judgment n.o.v. entered in favor of Sweets and against plaintiff.

Sweets, “in order to protect its rights and interests” in the event of a reversal of its judgment n.o.v., cross-appeals from the judgment rendered against it based upon the jury verdict for plaintiff and from the partial denial of its motions for judgment n.o.v. and for a new trial.

Plaintiff, “for protective purposes”, cross-appeals from the judgment n.o.v. entered in favor of Sweets.

I

We consider first Ava’s appeal from the judgment in favor of plaintiff and from the trial court’s denial of Ava’s post-trial motions with respect thereto.

Initially, Ava contends that the trial court erred in striking the issue of contributory negligence as a defense to the breach of warranty claim against it, refusing to charge the jury on contributory negligence as a possible defense for Ava, and depriving Ava of the right to be heard on that defense in summation to the jury.

Plaintiff’s complaint and the pretrial order charged Ava with both negligence and breach of warranty. Ava in its answer and in the pretrial order asserted that plaintiff was guilty of contributory negligence. In the openings plaintiff made reference to both theories of liability against Ava, and the latter raised the issue of plaintiff’s contributory negligence.

However, after the close of the evidence and prior to summations and charge, plaintiff moved to abandon his negligence claim against Ava and stated that he would proceed against Ava solely upon the theory of breach of implied warranty. Upon the court’s dismissal of the negligence count against Ava, plaintiff moved for a dismissal of Ava’s contributory negligence defense. This motion was granted, the court being of the opinion that the only form of contributory negligence that could be a defense to a breach of warranty claim was that comparable to assumption of risk.

The trial court erred in striking the defense of contributory negligence from plaintiff’s breach of warranty action against Ava. See Maiorino v. Weco Products Co., 45 N. J. 570, 573-575 (1965). Contributory negligence in its broad sense is a defense to a strict liability claim. Maiorino, supra, at p. 574. See also Tanga v. Tanga, 94 N. J. Super. 5, 11 (App. Div. 1967). Therefore, the portion of the lower court’s charge which specifically stated that contributory negligence was not a defense to plaintiff’s action against Ava was erroneous.

However, despite this we hold that Ava is not entitled to overturn the judgment below. Under the unique circumstances here present the affirmance of the judgment is not a denial of substantial justice to Ava. See R. R. 1:5-3 (5); R. R. 2:5.

The issue of plaintiff’s contributory negligence was submitted to the jury in the consolidated action of plaintiff against Sweets, and an appropriate charge on behalf of Sweets was given regarding that defense. The jury, by rendering a verdict in favor of plaintiff and against Sweets, necessarily made a determination that plaintiff was not contributorily negligent.

As previously noted, the contributory negligence defense was not stricken from Ava’s answer until all the testimony had been adduced. Counsel for both Ava and Sweets each thoroughly cross-examined plaintiff as to his driving and as to whether plaintiff knew or should have known that the brakes of his truck were defective. Ava does not contend that there could be any way, under the evidence submitted, that plaintiff could have been contributorily negligent as to it and not as to Sweets. Thus we have no Teason to doubt that if the issue of plaintiff’s contributory negligence had been properly submitted in Ava’s ease, the jury’s verdict would have been the same, i. e., that plaintiff was free from contributory negligence.

Ava’s argument that it was prejudiced by the denial of an opportunity to address the jury in summation as to this issue is without merit. Its counsel was not deprived of a closing. Therefore Aladdin Oil Burner Corp. v. Morton, 117 N. J. L. 260 (Sup. Ct. 1936), on which it relies, is inapposite. In his summation Ava’s counsel spent considerable time discussing the manner in which plaintiff operated his truck, commented upon the evidence regarding when plaintiff first saw the parked tractor-trailer, and referred to plaintiff’s inconsistent testimony concerning this factual issue. Likewise, Sweets’ attorney, in his closing, specifically mentioned plaintiff’s contributory negligence as an issue in the case and also discussed in detail the evidence pertaining to plaintiff’s operation of his truck. Sweets’ counsel raised the questions of when plaintiff first saw the tractor-trailer, why plaintiff failed to turn right at the bottom of the hill and use an open lane, whether plaintiff had been speeding and whether plaintiff had failed to properly control his vehicle. The attorney for Sweets also referred to the alleged inconsistencies in plaintiff’s testimony.

The true issue here present is whether the lower court’s striking the defense of contributory negligence was prejudicial to Ava. Ava’s charge that it was precluded from a summation on this issue is purely a theoretical one. Since, as above noted, the jury found plaintiff was not guilty of contributory negligence, we conclude that on this point Ava has not demonstrated any prejudice mandating a reversal. Cf. Panko v. Grimes, 40 N. J. Super. 588, 599 (App. Div. 1956). It is fanciful to assume that Ava’s counsel, by summation on this issue, could have swayed the minds of the jurors under the facts here present. Ava had nothing to advance on this issue beyond that which was already placed before the jury.

Ava next contends that the trial court improperly and erroneously limited the scope of its cross-examination of plaintiff on the factual issue of how far plaintiff was from the tractor-trailer when he first saw that vehicle. We deem this point to be of no merit. The extent of cross-examination lies in the sound discretion of the trial judge. See, e. g., Graf v. Folarno, 99 N. J. Super. 173, 176 (App. Div. 1968); State v. Steele, 93 N. J. Super. 498, 503-504 (App. Div. 1966). The discrepancy between plaintiff’s 1962 pretrial depositions and his trial testimony had been fully explored by Ava’s counsel on more than one occasion. The judge, in ruling as he did, noted that there had been sufficient evidence adduced on the issue that Ava wished to pursue. We agree and find no abuse of discretion on the part of the trial court.

Ava further contends the trial court erred in denying its motion to strike the evidence regarding prior brake servicing and adjustments of the Ava vehicle, in permitting plaintiff’s counsel to comment thereon, and in instructing the jury that such evidence could be considered in determining whether the brakes were defective at the time of the accident. Ava’s motion to strike was made after plaintiff had abandoned the negligence theory of his claim.

Ava argues that although this evidence might have been admissible on the abandoned negligence aspect of plaintiff’s case, it was not relevant to plaintiff’s breach of warranty claim, since the only pertinent inquiry on that count was whether the brakes were defective at the time of the accident. We agree with Ava’s statement as to the pertinent factual issue. Cintrone v. Hertz Truck Leasing, etc., 45 N. J. 434, 451-452 (1965). However, we disagree with its argument that the controverted evidence was not relevant to that issue, for it could support a reasonable inference as to the condition of the brakes at the critical time. See Pabon v. Hackensack Auto Sales, Inc., 63 N. J. Super. 476 (App. Div. 1960).

The court instructed the jury that in order to hold Ava liable it had to find that there was a defect at the time of the accident and that the evidence as to prior service could be considered only insofar as it bore on that specific issue. This limiting charge cured any alleged improprieties in plaintiff’s summation. We therefore hold Ava’s contention to be without substance.

Finally, Ava argues that the denial of its motion for mistrial, following improper comments of plaintiff’s counsel in his opening to the jury as to injuries suffered by plaintiff in accidents subsequent to the one here involved, constituted error. Although the reference by plaintiff’s counsel, technically, may have exceeded the proper bounds of an opening, it does not rise to the heights of being prejudicial. The court carefully pointed out, in its charge, that plaintiff could recover only for the damages caused by the accident of April 4, 1961 and not for damages connected with any other accident. Additionally, even though plaintiff on direct did not testify as to these subsequent injuries, he was extensively cross-examined about them by Ava’s counsel as well as Sweets’. Upon the record, we find that the trial court did not abuse its discretion in denying the motion for a mistrial.

In sum, we conclude that plaintiff’s judgment against Ava should be affirmed.

II

We next give consideration to Ava’s contention that the trial court erred in granting judgment n.o.v. in favor of Sweets and against plaintiff on the ground of collateral estop-pel.

Preliminarily, we hold that Ava has standing to appeal from this judgment. Ava moved to amend its answer to include a cross-claim for contribution against Sweets under the Joint Tortfeasors Contribution Law. Although this motion took place after the jury verdict against Ava and Sweets, it was made before the entry of the judgment n.o.v. in favor of Sweets. Thus, Donofrio v. Farr Lincoln Mercury, Inc., 54 N. J. Super. 500 (App. Div. 1959), relied upon by Sweets, is inapposite.

Examining the merits of the substantive question, we conclude upon the entire record that the trial court correctly determined that the doctrine of collateral estoppel was applicable to prevent a relitigation against Sweets of the same issues that had been determined adversely to plaintiff in the latter’s prior suit against Ava, Ventre, Pan Atlantic and Mitchell. In that action plaintiff attempted to hold Mitchell and Ventre liable for Mitchell’s negligent parking of the tractor-trailer, which plaintiff asserted to be the proximate cause of the accident. The causation issue was fully litigated therein and the jury resolved it by rendering a verdict of no cause of action in favor of Mitchell and Ventre.

Ava contends that the question considered in the earlier case is different from the one presently involved. It concedes that the relevant issue in the first action was whether the parking of the tractor-trailer constituted actionable negligence. However, Ava argues that the present case involves a different inquiry — whether Sweets should be liable for its negligence in directing the manner in which the vehicle was parked.

The distinction that Ava attempts to draw lacks substance. Whether Sweets was negligent in giving the claimed instructions is immaterial unless it can be established that there was a causal relationship between its actions and the accident. This causal nexus could not be demonstrated without a determination being made that the parking of the tractor-trailer was a liability-imposing proximate cause of the event. This question was resolved adversely to plaintiff in the first suit and cannot be retried.

The fact that Sweets was not a party to the earlier litigation does not prevent it from now asserting the application of the doctrine of collateral estoppel against plaintiff. The question to be decided is whether a party has had his day in court on an issue, not whether he has had his day in court on that issue against a particular litigant. McAndrew v. Mularchuk, 38 N. J. 156, 161 (1963).

The criteria for determining who may assert a plea of collateral estoppel differ fundamentally from the criteria for determining against whom such a plea may be asserted. The doctrine cannot be raised against a litigant unless the latter was a party to the earlier litigation or in privity with a party thereto. However, one raising the plea of collateral estoppel need not have been a party, or in privity with a party, to the earlier proceeding. Coca-Cola Co. v. Pepsi-Cola Co., 6 W. W. Harr. 124, 36 Del. 124, 173 A. 360, 261-262 (Super. Ct. 1945). See also McAndrew, supra, 38 N. J., at p. 160.

Since Ettin was a party in the first suit, Sweets was entitled to utilize the doctrine of collateral estoppel to prevent the relitigation of issues already determined against plaintiff.

Our conclusion disposes not only of Ava’s appeal from the judgment n.o.v. in favor of Sweets, but also renders plaintiff’s cross-appeal from that judgment without merit.

Ill

In view of the above determination, Sweets’ cross-appeal is rendered moot.

Judgment affirmed.

Sullivan, S. J. A. D.

(concurring). I concur in the foregoing opinion except that I do not agree that the trial court erred in striking the defense of contributory negligence from plaintiff’s breach of warranty, action against Ava. I think the trial court correctly held that there was insufficient evidence in the case to present a jury question as to plaintiff’s contributory negligence in the breach of warranty action. See Cintrone v. Hertz Truck Leasing etc., 45 N. J. 434 (1965); Maiorino v. Weco Products Co., 45 N. J. 570 (1965).

Foley, J. A. D.

(concurring) Judge Leonard concludes that the trial court erred in striking the defense of contributory negligence from plaintiff’s breach of warranty action, citing Maiorino v. Weco Products Co., 45 N. J. 570 (1965). Judge Sullivan concludes that the proofs did not raise a jury issue of contributory negligence under the rule of Maiorino (which was a restatement of the rule first enunciated in Cintrone v. Hertz Truck Leasing etc., 45 N. J. 434 (1965) as applied to the proofs in the Maiorino case). I concur with the latter view and agree that the judgment should be affirmed for that reason.

Both of my colleagues hold that, assuming the trial court erred in withdrawing Ava’s defense of contributory negligence from jury consideration, such error was not prejudicial. With this I disagree.

I am of the opinion that if Ava was entitled to have the issue submitted to the jury the court’s refusal to do so was prejudical per se. Furthermore, I feel strongly that the resulting curtailment of Ava’s attorney’s summation was of substantial detriment. We cannot know what Ava’s approach would have been had the issue of contributory negligence remained in its case, nor can we know whether a summation by Ava’s counsel on that issue would have emphasized its importance, or whether counsel’s presentation would have been more convincing or persuasive than the remarks of Sweets’ attorney. I feel that the deprivation of advocacy in relation to a critical issue in a case should not be glossed over because a reviewing court concludes that the result would have been the same had the error not been committed.


source: Caselaw Access Project

author: Hartman, J. C. C.

license: Public Domain

text:
    T, PLAINTIFF, v. M, FALSELY CALLED T., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 11, 1968.

      Mr. Kenneth F. Lay, for plaintiff (Spingarn & Sachs, attorneys) .

      Mr. Jay Krivitzky, for defendant (Schwartz, Horowitz & Krivitzky, attorneys).
   Hartman, J. C. C.

(temporarily assigned). This action to annul a marriage on the ground of impotence is a case of novel impression in New Jersey and, perhaps, in this country, in that the wife, while still a virgin, with an intact hymen, suffered a miscarriage during the marriage. The husband seeks the annulment, charging his wife with being physically and incurably impotent.

The question to be determined is whether a virgin wife, capable of procreation, can legally be declared to be impotent so as to warrant annulling the marriage. I have decided this question in the affirmative and will grant the husband an annulment.

The action is not contested on the merits. The wife filed an appearance seeking to be heard as to certain property rights which claims were withdrawn by her attorney at the final hearing.

I am satisfied that the evidence supports the following findings of fact. The parties were married in this state on July 25, 1964. Numerous efforts at sexual intercourse proved to be abortive because of the inability of the female organ to permit penetration to the slightest degree. On one occasion the husband used force in his attempt to penetrate. This resulted in his ejaculating against the vulva, causing a “splash pregnancy”.

The husband urged his wife to see a doctor. At first she refused to do so. She asked him to give her time, that she was nervous, that eventually it would work out. Although they continued to try, the situation did not change and the parties separated. At that time neither of them were aware that conception had taken place.

A few months thereafter the wife advised the husband that she was then prepared to see a doctor because she thought she was pregnant. In November, 1965, they both went to see Doctor George Massell, an obstetrician and gynecologist. The wife complained of lower abdominal cramps; she had missed a period; about two weeks before this visit to the doctor she had “spotted”.

The doctor attempted to examine her pelvieally by manual examination. He testified that this proved to be impossible. Two days later the doctor learned that her bleeding had progressed and he admitted her to the hospital. He again found it impossible to examine her physically but her symptoms indicated early miscarriage. In the operating room she was anaesthetized and dilated at which point it was discovered that she had an intact hymen. An incision was made into the hymen and the doctor proceeded to perform a D & 0 for the miscarriage.

It was the doctor’s opinion that there had been no penetration by the husband beyond the hymen, and that the wife was suffering from a firm, fixed, deep-seated psychological problem. When asked how a pregnancy could occur in a woman whose hymen was intact he testified that this was possible and that it was not unknown in medical science. To use his own expression, it was a “splash pregnancy”.

A few months after the operation the parties attempted intercourse again with the same negative results. They then returned to Doctor Massell to seek his help in repairing the problem. The doctor recommended a gynecologist in New York who, he advised, had a great deal of experience with psycho-sexual problems. Doctor Massell had little confidence, however, that psychology or psychogenic treatment of the wife could correct her condition. He felt it was too deep-seated despite the fact that she loved her husband and still was unable to have intercourse with him. After seeing the New York gynecologist the wife was recommended to a psychiatrist; after two visits with the psychiatrist she refused further help. It was then that the husband again separated from his wife and brought this action to annul the marriage.

It was Doctor Massell’s opinion that there had been no sexual contact between the parties unless it was made between the thighs or in the neighborhood of the labia. He stated that in his experience as a gynecologist it was not rare for a pregnancy to occur when there is ejaculation against the opening of the vagina.

The case was continued to permit the husband to produce additional expert testimony and to provide the court with a brief. On the continued date plaintiff produced Doctor Lawrence F. Burnett, of Newark, N. J., who specializes in obstetrics and gynecology. He holds a position as Senior, Attending in Obstetrics and Gynecology at St. Michael’s Hospital in Newark and a similar position at the Presbyterian Hospital in Newark. He was recently elected Associate Chief of Staff of Hnited Hospitals of Newark.

Doctor Burnett testified that he had read the transcript of the testimony taken at the previous hearing and had formed his opinion with regard to the subject matter in issue.

It was his opinion “that this woman is impotent.” He defined impotency as the lack of ability to perform the sexual act — he stressed the word “perforin” • — - which could be absolute or relative; in women, “it is the lack of ability to allow penetration for the performance of the sexual act.”

Doctor Burnett then referred to an article which appeared in the January, 1968 issue of the OB-GYNE NEWS, written by a Doctor Maurice Martin, a recognized authority in the field and a consultant in psychiatry at the Mayo Clinic, Rochester, Minnesota, entitled “Frigidity is Difficult to Treat”. The article sets forth three types of problems which comprise psychological relations for frigidity or impotency. The first one is fear, either conscious fear of being hurt or fear of pregnancy. This results in the holding back of emotions. It could be unconscious fear of being hurt when involved in the sexual act. The second problem involves displaced love, either conscious love for another person, resulting in the loss of interest in the spouse, or the type of unconscious displaced love in an unresolved Oedipal situation as in the son-mother or daughter-father complex. The third problem involves a hostility, either conscious anger directed toward the spouse or unconscious hostility towards members of the opposite sex. Doctor Burnett was not able to pinpoint which of these problems, or combinations of them, were precisely applicable here.

Doctor Burnett further testified that in this case, on the occasion when the husband attempted forcibly to penetrate, that it was likely “that he gained the position of the penis against the hymen and he ejaculated. Pregnancy could have occurred at this point.” He then cited from Delee Greenhill, Principles and Practice of Obstetrics, 9th ed., page 9, where, referring to copulation, this authority stated: “Copulation is not absolutely necessary if the semen is injected into the vagina or even on the iniroitus vulva which is the external opening to the vagina, conception may take place.” (emphasis supplied). He stated that the treatise from which he was quoting was his text book in medical school and is a recognized authority. He is presently treating a patient who is seeking a church annulment for iinpotency due to vaginismus. It is interesting to note that this patient, who is impotent so far as her husband is concerned, was raped by a third party between the time the annulment proceeding was instituted and the time of the doctor’s first examination of her, and she eventually gave birth to a child, the direct result of the rape.

Doctor Burnett concluded that in our case the wife’s problem is obviously a psychogenic one, due to vaginismus producing impotency, “that if such a long trial by these partners with obvious positive direction, that this would support a conclusion that this case is incurable.”

The court’s research has uncovered a short article written by one Arthur Stein of New York, in the Medical Journal of Record, Vol. 127, 1928, pgs. 550-551, entitled "Pregnancy with Intact Hymen”. This article indicates that it has been fully established that pregnancy may occur after incomplete sexual intercourse outside of the vagina, and observed that this has happened between unmarried persons “especially in the southern part of Russia (Little Russia), where custom permits this type of intercourse out of wedlock but maidens strive to keep the hymen intact until marriage.” This article cites twenty-five cases of pregnancy with intact hymen published in medical literature between 1672 and 1885, and six cases reported between 1924 and 1926. In all of these six cases, except one, a child was born; in the other there was a miscarriage. And in one of the cases where a child was born, examination after birth indicated that the hymen was still in its virginal state.

By statute in New Jersey, impotence is a ground for nullity of marriage. N. J. S. 2A: 34-1 provides for a number of grounds for nullity. Sub-paragraph c. dealing with impotency, provides as follows:

“The parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, and has not subsequently ratified the marriage.”

Vaginismus, physical or psychical, is a recognized cause of incurable impotency in New Jersey. D. v. C., 91 N. J. Super. 562 (Ch. 1966); Godfrey v. Shatwell, 38 N. J. Super. 501 (Ch. 1955); and, imperfect intercourse is not enough to rebut a finding of impotence. Impotency is the inability to have sexual intercourse; impotence is not sterility. Donati v. Church, 13 N. J. Super. 454 (App. Div. 1951); Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7 (Ch. 1920).

Annulment of a marriage, where the parties, or either of them, were at the time of the marriage, physically or incurably impotent, may be accomplished in one of two ways. Where the impotency was known before the marriage but was not disclosed, that marriage may be annulled at the suit of the innocent party for the fraud inherent in the non-disclosure, invoicing the inherent jurisdiction of the Court of Chancery to deal with fraudulent contracts. The inherent jurisdiction of the Court of Chancery to annul fraudulent contracts has been held sufficient to include a contract of marriage. Carris v. Carris, 24 N. J. Eq. 516 (E. & A. 1873); “the absence of ecclesiastical courts, the existence in the Court of Chancery of the general jurisdiction stated, and there being no provision in the Constitution for a different tribunal, and consent being a common-law essential of the marriage contract, all show that that jurisdiction must embrace the right to annul such a contract for sufficient fraud.” Steerman v. Snow, 94 N. J. Eq. 9, 12 (Ch. 1922).

The second method of approaching nullity of marriage for impotence is statutory. It lies where the disability was not known at the time of the marriage; here fraud is not involved.

Impotence was at the time of the common law a canonical disability and was treated in the ecclesiastical courts where, according to Canon 1068 of the Code of Canon Law, “inability to perform the marital act was a diriment impediment, and thus invalidated the marriage.” 52 Iowa Law Review 768 (1967). There were no ecclesiastical courts in New Jersey when we adopted the common law as the law of this state; the only jurisdiction to annul a marriage for impotence was that which involved a fraudulent concealment of it. Relief from this type of marriage was, as I have stated, vested in the court of chancery pursuant to its inherent jurisdiction to annul contracts for fraud. This explains the dismissal of a suit to annul a marriage for impotence by Chancellor Runyon where no fraud was involved and the impotence was known after the marriage. See Anonymous, 24 N. J. Eq. 19 (Ch. 1873). The Chancellor there held that if the jurisdiction of the Court of Chancery was to be extended to include eases of this character, it was for the legislature to decide. And the legislature did so enact in the following year, 1874, incorporating into the revision of the Divorce Act a section 4 which provided for “divorce” from the bond of matrimony in such cases of impotence. Our current statute, N. J. S. 2A :34-1, subd. c, provides the relief by way of annulment,

I have not been able to find a reported opinion in this country where a dissolution of a marriage was sought because of an impotent wife, not able to copulate yet capable of procreation.

Nelson, in his work on Divorce and Annulment, citing authorities, refers to impotency as “a want of potentia copu-landi, that is, inability to copulate, and, although, the inevitable result of the absence of such power will be an absence of the power of procreation, it does not include sterility, * * *” (emphasis supplied): Nelson, 2d. ed., vol. 1, sec. 8:03, p. 327; and further, at the same page: “In other words, it is an incapacity that admits of neither copulation nor procreation, * * *” (emphasis supplied). The difficulty I have with the Nelson text is that the cited cases deal with the inability to copulate; none apparently involve a wife who has the ability to procreate but not to copulate. His observation that the inevitable result of inability to copulate will be an absence of the power of procreation is not sustainable according to medical science as disclosed by the expert testimony adduced here.

Bishop in his work on Marriage, Divorce and Separation (1801) devotes several sections to the subject of impotence. In sections 773-775, pages 331, 332 he reasons that if there is an ability on the part of the woman to procreate an annulment should be denied despite imperfect intercourse which, but for the conception, would normally result in granting the annulment. He puts the question in this manner: “Is the child to be made a bastard and is the woman to be held infamous? One of the chief ends of marriage has been attained.” I do not believe that this 19th century reasoning is applicable today.

The begetting of children is truly an important end of marriage. Eminent commentators on canon law held the opinion that it was the chief end of marriage. Canon law should be distinguished from civil law. If the begetting of children were the chief end of marriage it should follow that our public policy would favor annulling marriages in sterility cases where the fact of sterility is unknown to the parties at the time of the marriage. But no statute in this state permits annulment in such eases. We are living in a time when the population growth is a major concern to all nations. Birth control and planned parenthood are on-going programs throughout the world. Abortion laws are being seriously debated in this country with a view towards revising old laws. Health and happiness appear to be the touchstone.

Children are no longer bastardized in this, and in many other states, by reason of the fact that the marriage of the parents is later annulled by court action. When a judgment of nullity of marriage is declared in New Jersey, children of that marriage are not thereby rendered illegitimate except in the single instance where a marriage, not a ceremonial one, is dissolved because either party had another wife or husband living at the time of the marriage. N. J. S. 2A :34-20. Another statute in New Jersey legitimatizes children born out of wedlock where the natural parents thereafter intermarry, and such children enjoy all the rights and privileges that they would enjoy had they been born after the marriage. The status of such children is statutorily declared to be the same as if they were born in lawful wedlock. N. J. S. A. 9:15-1. Still another statute makes legitimate any child born of a ceremonial marriage notwithstanding the marriage be thereafter annulled or declared void. N. J. S. A. 9 :15-2. Our legislature has thus declared the public policy in this state with regard to the legitimation of children. The reasons of concern expressed by Mr. Bishop as to children being bastardized would seem to have no force, in reason or logic, in present day legal thinking. Nor is it any longer valid to say that annulments of marriage result in characterizing the female as an infamous person to the world. The old scandal has lost its bite.

I have, therefore, decided that it would be unjust to hold the husband to his marriage contract. My factual reasons may be summarized as follows: (1), he was at the time of the marriage ignorant of the facts alleged; (2), his efforts to secure medical assistance for his wife were motivated by a desire to continue the marriage; (3), the blame for the failure to rectify the sexual problem may not be attributed to him; (4), his decision to disaffirm the marriage was made, and the action to annul was brought, within a reasonable time, not subject to successful attack by reason of any equitable defense of laches, whether raised by the wife (she raised no such defense) or by the court itself (I gave thought to it and found no reason to apply it); and, (5), after his decision to disaffirm, there were no further acts nor conduct between the parties to bar the action.

The wife is impotent. Judgment of nullity will be entered in favor of the husband:


author: Mintz, J. S. C.

text:
    DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, PLAINTIFF, v. PASSAIC VALLEY SEWERAGE COMMISSION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 24, 1968.
    Addendum to Opinion May 1, 1968.

      Mr. Theodore A. Schwartz, Deputy Attorney General, for plaintiff (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Thomas E. Durkin, Jr. for defendant.
   Mintz, J. S. C.

This matter is on an order to show cause why defendant Passaic Yalley Sewerage Commission (hereinafter the “Commission”) should not be directed to comply with orders of plaintiff Department of Health (hereinafter the Department). The Department issued two directives ordering defendant to improve its sewage treatment facilities so that its effluent, which is pumped through an outfall line into Upper New York Bay near Bobbins Eeef Light, will be less harmful to these New Jersey waters. Pursuant to N. J. S. A. 58:12-4 the Department has sued for summary injunctive relief. The Commission contends that the Department has no jurisdiction over it or its treatment and pumping plant at Wilson Avenue adjacent to Newark Bay in the City of Newark.

The Department’s initial directive, issued April 25, 1965, ordered defendant Commission to install post-chlorination equipment for the disinfection of its effluent at its Newark Bay plant for the period May 15, 1967 to September 15, 1967 and for said periods in succeeding years. In this connection, pursuant to the State Public Sanitary Sewerage Facilities Assistance Act of 1965 (N. J. S. A. 26:2E-1), plaintiff issued to defendant a $20,000 grant in September 1965 for a project feasibility study.

An amended directive, issued March 31, 1967, repeats the Department’s demand, which had gone unheeded, for the in? stallation of post-chlorination equipment, and further orders the Commision to effect a substantial improvement of its effluent treatment. The Department therein prescribes that on or before October 30, 1970 the Commission must achieve a minimum 80 % reduction in the biochemical oxygen demand (B.O.D.) of the sewage discharged from its plant into Upper New York Bay. Paragraph 2 of this order also requires the Commission to file a report for the Department’s review and approval on or before October 1, 1967 regarding the proposed basis of the design of additions and alterations to its sewage treatment plant. Defendant has likewise failed to comply with this amended order.

Plaintiff contends that the Legislature’s broad delegation of water pollution control authority to the Department in N. J. S. A. 58:12-2 and 3 and N. J. S. A. 26:1A-37(i) confer sufficient jurisdiction to it over defendant Commission to validate the instant administrative orders.

N. J. S. A. 58:12-2 in part provides:

“The State Department of Health * * * shall investigate the various methods of sewage disposal in order that it may ho able to make proper recommendations in regard thereto, shall require alterations, additions or improvements to sewage treatment works, shall investigate all complaints of pollution of the waters of this State which shall be brought to its notice, and may inspect any of the waters of this State.
If the department finds that any of said waters are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this State, either in their health, comfort or property, or that any sewage treatment works are inadequate in capacity or unit design to properly care for, treat and dispose of sewage before an effluent from such works is discharged into any of said waters, it shall notify in writing any person, corporation or municipality found to be polluting said waters or owning, operating or controlling, separately or jointly, any such inadequate sewage treatment works, that prior to a time to be fixed by the department, which time shall not be later than five years from the date of the notice, the person, corporation or municipality polluting said waters must cease such polluting and make such disposition of its sewage and other polluting matter as shall be approved by the department. Such person, corporation or municipality owning, operating or controlling inadequate sewage treatment works as aforesaid must alter, add to or improve such works in order that the sewage being received therein shall be cared for, treated and disposed of, and the effluent discharged into said waters in a manner approved by the department. * * *”

N. J. S. A. 58:12-3 in part provides:

“Except under such conditions as shall be approved by the department, no person, corporation or municipality shall build any sewer, drain or sewerage system from which it is designed that any sewage or other harmful and deleterious matter, solid or liquid, shall flow into any of the waters of this state, or build, cause to be built or operate any plant for the treatment of sewage or other polluting substance from which the effluent is to flow into any of such waters, or, after the date specified in the notice provided for by section 58:12-2 of this title, permit any sewage or other polluting matter to flow into such waters from any sewer, drain or sewerage system under its control. * * *”

N. J. S. A. 26:1A-37(i) provides that the Department shall supervise sanitary engineering facilities and in the exercise of such supervision make and enforce rules and regulations concerning plans and specifications for construction or improvement of sewerage systems and disposal plants for the treatment of sewage. As the waters of Upper New York Bay, into which the Commission’s effluent is discharged, are within the Department’s jurisdiction, N. J. S. A. 58:12-1, the Department urges that defendant’s sewage treatment facilities are necessarily subject to plaintiff’s orders.

As earlier noted, defendant Passaic Valley Sewerage Commission operates a sewage treatment plant in the City of Newark. This plant provides treatment for 28 municipalities or portions thereof in four counties who have jointly contracted for these services with the Commission. Through its outfall line into the New Jersey waters of Upper New York Bay, the said plant discharges approximately 200 mgd (million gallons per day) of sewage effluent. It is estimated that this discharge contains a residual pollution load “equivalent to [that] contributed by the discharge of raw sewage for a population of 3.5 million people.”

The Passaic Valley Sewerage District and Commission was originally created under L. 1902, cc. 48-49. The statutory provisions dealing with the District and Commission are to be found in N. J. S. A. 58:14-1 to 58:34.30. This statute (chapter 14) established a 5-member operating board — a “body politic and corporate” — authorized to coordinate the planning and financing of sewage disposal and water pollution control in the Passaic Valley Sewerage District. N. J. S. A. 58:14-2, 3. The discharge, directly or indirectly, of sewage or other polluting matter “into the waters of the Passaic river at any point between the Great falls in the City of Paterson and the mouth of said river at Newark Bay” or into the waters of its tributaries is prohibited. N. J. S. A. 58:14-7. The commissioners, or others injured by such discharges, may sue in the name of the commissioners to enforce this prohibition. N. J. S. A. 58:14-7, 33. In the ordinary course, projects for the District are initiated with a request from an appropriate municipal body to the commissioners for the preparation of plans and estimates for the construction of sewer lines and treatment plants. N. J. S. A. 58:14-9, 10, 11. Any municipality in the district may contract with others and with the Commission for the “construction, maintenance and operation” of sewers, plants and works. N. J. S. A. 58:14-12. The statute further provides a formula for cost apportionment among the contracting municipalities. N. J. S. A. 58:14^-13. A contracting municipality finances projects by raising taxes or by borrowing “upon its notes or other temporary obligation” or by issuing permanent bonds. A municipality may not incur indebtedness for these purposes which exceeds 5% of its tax ratables. N. J. S. A. 58:14-23. Por moneys required by the commissioners in the performance of a contract, they too may borrow upon their corporate notes or other obligations, N. J. S. A. 58.14-24, but may not mortgage or encumber any part of the sewerage system. N. J. S. A. 58:14-34.21.

The Commission contends that N. J. S. A. 58:12-2 and 3 do not vest any authority in the Department to control its operations. It bases its exemption, inter alia, on the concluding section in Title 58, chapter 12, which provides:

“The provisions of this chapter shall in no way affect or modify the provisions of any law conferring power and authority upon the Passaic valley sewerage commission in relation to the purification of the Passaic river and the streams tributary thereto, and particularly the provisions of chapter 14 of this title (§ 58:14-1 et seq.).” N. J. S. A. 58:12-40.

Under N. J. S. A. 58:14-7 the Commission, as already observed, is entrusted with enforcng a prohibition against pollution of the Passaic River and its tributaries between Paterson and the mouth of said river at Newark Bay. However, the pollution, of which the Department herein complains, is caused by the Commission’s discharge of inadequately treated sewage into the waters of Upper New York Bay, not among those waters over which the Commission has the “power and authority” to prohibit pollution.

The commissioners and the District’s contracting municipalities are vested under N. J. S. A. 58:14-16 with “absolute discretion in the determination of the size and capacity of each such intercepting sewer, plant and works * * and it is argued that under this provision they have “absolute discretion” over those matters dealt with in the orders disputed herein to the exclusion of the Department. However, the Department’s orders for the post-chlorination and B.O.D. reduction of defendant’s effluent do not affect intercepting sewers; nor do they affect determinations of the “size and capacity” of defendant’s plant insofar as such plant is of “reasonably sufficient” construction to be able to “dispose of sewage and other polluting matter of the contracting municipalities.” N. J. S. A. 58:14-16. The orders deal, instead, with the intensity of effluent treatment afforded by defendant’s facility, which at this time discharges inadequately treated wastes into waters outside defendant’s jurisdiction. The “absolute discretion” granted the Commission and the contracting municipalities does not extend to such matters. Moreover, although the Legislature delegated supervision to the Department over plant “unit design” for the proper care and treatment of sewage, N. J. S. A. 58:12-2, it did not delegate to the Commission and the contracting municipalities “absolute discretion” over the determinations of treatment plant “unit design.”

The Commission argues that N. J. S. A. 58:11-10 exempts it from having to submit reports and plans to the Department, as demanded in the amended order of March 31, 1967. Such an exemption would seriously impair the Department’s administration of its orders. N. J. S. A. 58:11-10 provides that:

“No work upon the construction of changes, improvements, extensions or alterations to any water purification or treatment plant, sewer system or plant for the purification or treatment of sewage or industrial wastes shall be begun until detailed plans and specifications therefor have been submitted to and approved by the state department of health, but the provisions of this section shall not be deemed to apply to changes, improvements, extensions or alterations to any sewer system or plant for the purification or treatment of sewage or industrial wastes located within the territory over which the Passaic valley sewerage commissioners have jurisdiction.”

The apparent purpose of N. J. S. A. 58:11-10 is to enable the Department to exercise routine pre-construction supervision over all sewage and industrial waste treatment projects in the State, except over those to be situated in the territorial jurisdiction of the Commission. This statute, however, does not deprive the Department of the authority, pursuant to N. J. S. A. 58:12-2 and 3, to investigate the Commission’s method of sewage disposal in waters within its jurisdiction and beyond the Commission’s “power and authority,” and to prevent pollution therein by issuing a corrective order to the Commission. If the Department could not require the Commissioners to submit reports, plans and specifications of the improvements ordered, it could not effectively administer its directive. Hence, the exclusion of the Commission’s projects in N. J. S. A. 58:11-10 from the blanket pre-construction obligation to submit detailed plans and specifications cannot serve to cripple the Department’s administration of properly issued pollution control orders.

I am of the opinion that no legislation is extant which has whittled away the power of the State or its agency, the Department, so as to deprive the Department of jurisdiction over pollution prevention in the New Jersey waters of Upper .New York Bay, or to bar the Department in the instant situation from prescribing certain unit design improvements in the Commission’s treatment of sewage or from requiring that plans and specifications to effectuate said improvements be submitted to the Department for its approval.

Defendant further contends that the Department is barred from asserting jurisdiction over its polluting discharges into Upper New York Bay by a stipulation entered into between the Commission and the Federal Government in the proceedings of People of State of New York v. State of New Jersey, 256 U. S. 296, 41 S. Ct. 492, 65 L. Ed. 937 (1920). The United States Government had been permitted to intervene after New York State had sued to enjoin the construction of defendant’s sewage treatment and disposal facilities. The State of New York had alleged that the pollution prevention measures required for the project by New Jersey were inadequate to protect the public health and welfare.

By a stipulation authorized and approved by the State of New Jersey, L. 1910, c 158, the Commission and the Federal Government agreed, in return for the Federal Government’s dismissal from the litigation without prejudice, that the Commission would execute specified improvements in the treatment plant at Newark Bay and sewage dispersal equipment near Robbins Reef Light. The stated purposes of these adjustments were to eliminate from defendant’s effluent “visible suspended particles,” deposits harmful to navigation, odors, grease or discoloration, health hazards, to avoid property damage and to achieve the “absence of reduction in the dissolved oxygen contents of the waters of New York Bay, resulting from the discharge of Passaic Valley sewage, to such an extent as to interfere with major fish life.”

Further, defendant and the Federal Government stipulated that these objectives would be secured either through compliance with the requirements of the specified improvements agreed to “or through requisite lawful additional arrangements * *

Perhaps as recently as 1935 the aforesaid stipulation was still considered the arrangement controlling the Commission’s obligation to prevent pollution in New York harbor. The New Jersey legislation authorizing an interstate compact for the formation of the Interstate Sanitation Commission, L. 1935, c. 321, exempted the defendant from the supervision of that body contingent upon the continued enforcement of this stipulation. N. J. S. A. 32:18-13. But, significantly, the same legislation states that:

“Nothing in this compact shall be construed to * * * prevent the enactment o£ any legislation or the enforcement of any requirement by any signatory state imposing any additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdiction.” N. J. S. A. 32:18-10.

Although the State of New Jersey, in empowering the Commission to enter into the stipulation, approved of and consented to it, People of State of New York v. State of New Jersey, supra, at p. 307, 41 S. Ct. 492, nothing in the stipulation is directed toward prohibiting the State from enforcing more stringent pollution controls over waters within its jurisdiction, and no such prohibition should be implied.

In passing, it is noted that the specific engineering requirements of the stipulation have probably been rendered outmoded by progress in sanitary science and that recent federal statutes re-aligning the water pollution control responsibilities of all levels of government have, in effect, supplanted the additional “requisite lawful arrangements” contemplated in the stipulation. Even in 1920 the United States Supreme Court observed that due “to the rapid advances in sanitary science then in progress,” People of State of New York v. State of New Jersey, supra, at p. 308, 41 S. Ct., at p. 496, new practicable methods of reducing the polluting effect of sewage disposal were evolving. This scientific advance has accelerated. See Cloyes v. Delaware Township, 41 N. J. Super. 27, 42 (App. Div. 1956) (concurring opinion by Conford, J.), affirmed 23 N. J. 324 (1957). Moreover, in 1953 when the State Legislature enacted L. 1953, c. 388, (N. J. S. A. 58:14-34.10), it declared that defendant Commission must improve its sewage treatment and disposal facilities “in order to provide for the increase of population and the rise in acceptable standards for sewage treatment and disposal.”

Teamed with this scientific progress, the Federal Water Pollution Control Act of 1948, 62 Stat. 1160, and its amendments have wrought such radical changes in national water pollution control policy that the direct working arrangement between defendant and the United States, embodied in the 58-year-old stipulation, now appears anachronistic.

The declared policy of the Federal Water Pollution Control Act is that Congress shall

“* * * recognize, preserve and protect the primary responsibilities and rights of the States in preventing and controlling water pollution * * *.” 33 U. S. C. A. § 466(b)

The Congress has also declared that

“Nothing [in this Act] shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” 33 U. S. C. A. § 466(c)

Moreover, the act provides that efforts by a state to abate pollution endangering the public health and welfare shall not be displaced by federal enforcement until the full course of lengthy preliminary procedures (see 33 U. S. C. A. § 466 g(d)(1), (d)(4), (e), (f) and (g)(1)) result in a federal court order, 33 U. 8. G. A. 466g(h). This protracted abatement process affords the states or their appropriate water pollution control agency, 33 U. S. C. A. § 466g(e), time and encouragement toward the exercise of their primary responsibility of water pollution control.

In the Water Quality Act of 1965, 79 Stat. 903 (which added, inter alia, section 10(c) to the Federal Water Pollution Control Act) the policy of delegating first-line responsibility to the states was extended. The legislation requires that the state water pollution control agency, e. g., the Department, adopt water quality criteria for application to "interstate waters or portions thereof,” such as Upper New York Bay, and prepare an implementation and enforcement plan, said criteria and plan being subject to review and approval of the Federal Water Pollution Control Administration, U. S. Department of the Interior. 33 U. S. G. A. § 466e (c)(1). Upon a state’s establishment of enforceable water quality standards approved by the Secretary of the U. S. Department of the Interior, water pollution control projects in that state, such as that prescribed herein by plaintiff, become eligible for an increased percentage of federal aid. 33 U. S. C. A. § 466e(6). The Water Quality Act also gives the Federal Government the power to abate discharges into these waters which reduce the quality of such waters below the water quality standards established by the state. 33 U. S. G. A. § 466g (c) (5).

Before the enactment of the Water Quality Act which made the adoption of water quality criteria for interstate waters obligatory upon the states, plaintiff Department had already established general classifications of quality standards for the fresh and tidal waters of the State. These standards, however, had not yet been assigned to each of said bodies of water or portions thereof and plans for their implementation had not yet been drawn. New Jersey Department of Health, "Regulations Establishing Certain Classifications to be Assigned to the Waters of This State and Standards of Quality to be Maintained in Waters so Classified,” effective September 1, 1964. Pursuant to N. J. S. A. 58:12-3 and section 10(c)(1) of the Federal Water Pollution Control Act, the Department next promulgated a TW-2 classification for the surface waters of the Hudson River, encompassing the disposal area of the Passaic Valley Sewerage Commission’s outfall in Upper New York Bay. New Jersey Department of Health, “Classification of the Surface Waters of the Hudson River, Arthur Kill and Tributaries,” effective May 16, 1966. Prior to the adoption of this classification a representative of defendant appeared at a February 1966 public hearing held by the Department on its proposed classification of tidal waters. He objected to the stringency of a TW-2 water quality standard for the waters of Upper New York Bay and suggested instead a TW-3 standard. A TW-2 water quality standard is more rigorous than a TW-3 classification in that it requires for dissolved oxygen a higher minimum percentage of saturation. Defendant also objected at this public hearing to the Department’s orders for seasonal post-chlorination effluent disinfection until all disposers of wastes into the harbor, including those in New York State, are similarly compelled to treat their effluent.

The orders disputed herein were drawn by plaintiff Department to assure that the treatment and disposal of the Commission’s effluent meets the applicable water quality standards for Upper New York Bay — those contained in classification TW-2. The directive to the Commission to achieve an 80% reduction in the biochemical oxygen demanding substances of its effluent follows the conclusion and recommendation of the Hudson River Conference, Second Session, called by the Secretary of the Interior under 33 U. S. C. A. § 466g(d) (1) in September 1967.

The TW-2 water quality criteria for Upper New York Bay and its implementation plan were reviewed and approved by the Secretary of the Interior on March 13, 1968. In fact, the Secretary noted that although he was “presently approving the dissolved oxygen criteria for TW-2 * * * waters, it [was his] hope that installation of treatment measures will improve water quality to the extent that these limits can be raised.” Pertinent to the Department’s order for post-chlorination treatment is the Secretary’s suggestion that “[bacteriological criteria appear necessary in TW-2” waters. See the letter from Stewart L. Udall, Secretary of the H. S. Department of the Interior to New Jersey Governor Eichard J. Hughes, March 13, 1968, copy of which was recently furnished to the court with the consent of counsel.

My conclusion that the Department has jurisdiction to issue the directives in question to the Commission, in effect enables the Department to discharge the responsibilities of pollution control over interstate waters assigned to it under section 10(c) of the Federal Water Pollution Control Act. However, it is unnecessary to decide, and the issue is not raised in the complaint, as to whether the Department may exercise jurisdiction regarding pollution in the intrastate waters of the Passaic Eiver between Great Falls in Paterson and its mouth at Newark Bay.

The Commission also challenges the reasonableness of plaintiff’s orders. I have already alluded to the fact that the Department by regulation assigned to the waters of Upper New York Bay a TW-2 water quality classification, after a public hearing at which the Commission registered objection to its stringency. The federal authority recently approved this classification. Apparently the Commission never appealed the classification. Nevertheless, Seymour Lubetkin, Chief Engineer for the Commission, in his affidavit asserts that the Department’s order requiring 80% B.O.D. removal “is arbitrary and at this time not necessary for the preservation of acceptable water in New York Harbor.” The reply affidavit of Ernest E. Segesser, the Department’s Chief Engineer of the Water Pollution Control Program, explains that the Department retained a consulting engineering firm to determine the requisite degree of treatment of all sewage discharged into the Hudson Eiver complex in order to restore this area to the level of quality established for TW-2 waters, e. g., in regard to dissolved oxygen, a minimum percentage of not less than 50% of saturation. This firm’s analysis indicated that an 80% biochemical oxygen demand removal would be necessary to achieve this goal. The federal authority has concurred in this degree of treatment. See letter of March 13, 1968, supra.

As to seasonal post-chlorination, the Lubetkin affidavit states that since the Commission contemplates certain improvements in its treatment plant, independent of the Department’s order, an evaluation of the effluent’s need for chlorination should be postponed until these improvements are effected. Segesser, in his affidavit, states that there is no justification in delaying the installation of post-chlorination equipment, because the effluent’s chlorination demand will not be reduced significantly by the Commission’s proposed improvements. He also notes that the aforementioned Hudson River Conference concluded that all the waters within its jurisdiction should receive effective disinfection as required to protect desired water uses. Segesser further indicates that, except for defendant’s plant, seasonal post-chlorination equipment has been installed, or plans for such installation are under way, in all of the New Jersey primary sewage treatment plants discharging into the Hudson River complex.

Even though Lubetkin’s affidavit raises issues on the merits of the Department’s orders, it must be noted that the Commission failed to bring any action in the Superior Court to review the findings or orders of the Department within the three-month period prescribed in N. J. S. A. 58:12-2, State Dept. of Health v. North Wildwood, 95 N. J. Eq. 442 (Ch. 1924). Cf. Bergsma v. Town of Kearny, 24 N. J. Super. 43 (App. Div. 1952). In any event, the record supports a finding that plaintiff’s orders are based upon reasoned judgment and should be enforced.

The conventional financing procedure for Passaic Valley Sewerage Commission projects and its constrictions were earlier noted. The Commission urges that financing of the improvements ordered by the Department would cost millions of dollars and severely strain the resources of the contracting municipalities. See N. J. S. A. 58:14-34.10. The fact that these sewage treatment improvements are costly and difficult to finance does not relieve the Commission from its responsibility to cease polluting the waters of Upper New York Bay. State Dept. of Health v. North Wildwood, supra; Interstate Sanitation Comm. v. Weehawken Twp., 141 N. J. Eq. 536, 549 (Ch. 1948), modified 1 N. J. 330 (1949). Perhaps federal and state financial aid can be obtained for this project.

As already noted, plaintiff’s order of April 27, 1965 required effective post-chlorination of the effluent from defendant’s plant to be accomplished on or before May 15, 1967. This order was reaffirmed in the amended order of March 31, 1967. Obviously, the permanent facilities to perform this work cannot now be installed within the time prescribed. Defendant is directed to accomplish the same within such time as the Department may deem appropriate.

Defendant is also directed to comply with that part of plaintiff’s amended order of March 31, 1967 which requires that the Commission cease the discharge of improperly and insufficiently treated sewage into the waters of the Upper New York Bay. It is for the Department to determine whether the exigencies of the situation reasonably demand adherence to the order’s October 30, 1970 deadline or permit a delay. The report upon the proposed basis of design of additions and alterations which was to have been submitted by the Commission for review and approval by the Department on or before October 1, 1967 will be submitted to the Department for such review and approval on a date the Department now deems feasible.

Addendum: To Opinion Eiled

After filing the opinion in this matter the following provision has been brought to the court’s attention:

“* * * The jurisdiction of the Surgeon General, or any other agency which has jurisdiction pursuant to the provisions of this Act, shall not extend to any region or areas nor shall it affect the rights or jurisdiction of any public body where there are in effect provisions for sewage disposal pursuant to agreement between the United States of America and any such public body by stipulation entered in the Supreme Court of the United States. While any such stipulation or modification thereof is in force and effect, no proceedings of any kind may be maintained by virtue of this Act against such public body or any public agency, corporation or individual within its jurisdiction. Neither this provision nor any provision of this Act shall be construed to give to the Surgeon General or any other person or agency the right to intervene in the, said proceedings wherein such stipulation was entered.” Water Pollution Control Act, ch. 758, § 2 (d)(7), 62 Stat. 1159 (1948), as amended 33 U. S. C. A. 466-466j (1966).

In effect, the above provision in the 1948 Water Pollution Control Act excluded the Passaic Valley Sewerage Commission from the jurisdiction of the federal enforcing agencies and restricted the federal government’s efforts to secure improvement of the Commission’s pollution control facilities to negotiation with the Commission of “requisite lawful additional arrangements” pursuant to the 1910 stipulation. In the course of overhauling and strengthening the federal water pollution control scheme in 1956, Congress repealed this jurisdictional limitation pertaining to the stipulation. Significantly, the 1956 amendments also provided that the Act should not be construed as impairing in any manner the jurisdiction of states over their waters (Upper New'York Bay included) and that state and interstate action to abate pollution in interstate waters shall be encouraged and shall not be displaced by federal enforcement except when federal enforcement eventuates in a court order. Federal Water Pollution Control Amendments, ch. 518, §§1 (b), 8 (b), 70 Stat. 498, 504 (1956), as amended 33 U. S. C. A. 466-466h. (1966). As noted in my opinion, the Water Quality Act of 1965 underscored the first-line enforcement responsibility of the states in regard to all interstate waters by requiring the states to promulgate water quality criteria and to implement and enforce them. 33 U. S. C. A. § 466g(c).

Hence, the history of the federal legislation confirms the court’s observation in the opinion that these statutes have in effect supplanted the “requisite lawful additional arrangements” contemplated in the 1910 stipulation and bolsters the conclusion therein stated that the Department has authority to impose water pollution controls respecting discharges from the Commission’s plant into Upper New York Bay beyond those provided for in the stipulation.


author: Collester, J. A. D.

text:
    M. & O. DISPOSAL CO., ETC. AND DISPOSAL ASSOCIATES, INC., ETC., PLAINTIFFS-RESPONDENTS, v. TOWNSHIP OF MIDDLETOWN, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 7, 1966
    Decided September 1, 1967.

      Before Judges Goldmann, Kilkenny and Collester.

      Mr. Vincent C. DeMaio argued the cause for appellant.

      Mr. Peter F. Williams argued the cause for respondents (Messrs. Williams & Willette, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant Township of Middletown appeals from a judgment entered in the Law Division based on a jury verdict awarding plaintiff contractors $53,046, and from a denial of defendant’s motion for judgment and a new trial.

Following competitive bidding plaintiffs M. & O. Disposal Co. and Disposal Associates, Inc. (acting in joint venture) entered into a contract with defendant on December 8, 1960 to collect and dispose of garbage, refuse and rubbish in certain areas of the township for a three-year period, 1961-1963, at a contract price of $177,160.

In August 1964, after the contract had been performed and the contract price fully paid, plaintiffs brought suit to recover on quantum meruit for extra work allegedly performed during the three-year period at the request and direction of defendant township, its servants, agents and employees, which work plaintiffs claim was not required under the specifications of the contract.

Defendant township denied that plaintiffs performed extra work and asserted that the work they had performed was included under the terms of the contract. It alleged that any other work performed by plaintiffs was done without authorization of the township; that no servant, agent or employee had authority to bind the township, and that no appropriation was ever made for the alleged extra work.

Plaintiffs’ claim for additional compensation is based on their interpretation of paragraphs 12 and 28 of the specifications included in the contract. The paragraphs or those parts thereof which are pertinent read as follows:

“12. Definition of Terms
* * *
The term ‘rubbish’ and ‘refuse’ * * * shall be held to include all of the accumulations and waste substances from private houses and premises, boarding houses, stores, other building's of whatever nature and public places, and shall include particularly such articles as ashes, discarded clothing, paper cartons, wooden boxes, crates, baskets, paper and paper materials, tin cans, rags, corn husks, grass, lawn and yard rakings, hedge and plant trimmings, provided such trimmings, etc. are tied in bundles or placed in containers, floor covering from residences, broken glass, bottles, discarded Christmas trees, crockery, metal beds and bed springs, metal leaders and gutters when removed for replacement, discarded household receptacles and utensils, toys and such other household equipment as may be discarded from a private residence, and such articles and things as are daily discarded from a private residence, and such articles and objects as are daily thrown into waste baskets and rubbish containers, but shall not include building materials nor the refuse from any new building, nor the refuse from any old building which is torn down in whole or in part, * * * trees, tree branches, tree stumps, waste from excavations, * * * The above materials are to be placed in containers weighing not more than seventy-five (75) pounds.
If and when any question arises as to what is intended to be collected and removed in the Township of Middletown, the Township of Middletown shall be the judge of what was intended to be covered by said contract or specifications.” (Italics ours)
“28 Clean-Up Week
The contractors shall supply and rise a sufficient number of trucks of ample power and capacity to render services in connection with three (3) cleanup weeks. These Olean-up Weeks shall be designated by the Township Committee. Use of the above mentioned trucks will be required to service the collection areas for Clean-up on the same day as regular collections take place. All vehicles used shall be subject to the Township or its duly authorized representative. All open body trucks used in the collection of Clean-up Materials shall be equipped with tight-fitting canvas covers which will prevent any materials from spilling out, blowing off or being pushed off the truck.”

Plaintiffs allege that under paragraph 12 they were not required to pick up specifically described refuse and rubbish set out by residents for collection unless it was tied in bundles or placed in containers. They also claim that the contract called for only one clean-up week each year during which they were not required to pick up materials specifically excluded under paragraph 12.

Defendant disagrees with plaintiffs’ interpretation of paragraph 12. Moreover, it contends that the contract calls for three clean-up weeks each year and that the materials specifically excluded under paragraph 12 are not excluded from collection during clean-up weeks.

Plaintiffs’ main witness was Anthony Miele, president of M. & O. Disposal Company and secretary of Disposal Associates, Inc. He testified that he had prepared the bid for the contract which was accepted by the municipality and that, based upon the specifications set forth therein, he had estimated the contract could be performed by use of three roto-pack trucks during the winter and four in the summer. He said that when operations began in January 1961 he discovered storm debris caused by hurricane Donna in September 1960 was still being placed out for collection by residents — that it was not tied in bundles or placed in containers, and included trees, branches, wood from buildings, and the like which were excluded under the specifications. He stated further that similar conditions arose following a flooding of the area in March 1961 and after a severe storm which occurred in March 1962, and that during the entire contract period residents set out refuse and rubbish which did not comply with the contract specifications.

On May 21, 1961 Miele sent a letter to the township business administrator stating that plaintiffs were not obligated to take away materials which did not comply with the specifications, and that the removal of such materials entailed additional work “for which we will be obliged to bill you accordingly.” The letter was not answered and plaintiffs admittedly submitted no bill therefor until after the contract had expired some three years later.

Miele testified that at different times during the three-year period he complained to township officials and said he wanted to be paid his additional costs for such work. His complaints were made to Richard Seuffert, township business administrator, Ernest Kavalek and Earl Moody, members of the township committee who served successively as the chairman of the garbage collection subcommittee, and Joseph Quail, the sanitation officer of the board of health. Miele admitted these officials had never promised payment of his additional costs; that they had merely directed him to go ahead and do the work. He said both Seuffert and Quail told him that if he didn’t pick up the garbage his bonding company would come in and pick it up.

Miele testified that as a result of this extra work it was necessary to use an additional truck and two men daily throughout the three-year period, and to replace the three roto-pack trucks with new super-pack trucks in the summer of 1962. Plaintiffs claimed extra compensation of $60,070 consisting of $31,870 for labor, $21,000 for use of the truck, and $7,200 for use of the super-pack trucks for 18 months.

Miele further testified that the contract called for one clean-up week in each year but that because of the large accumulation of storm debris plaintiffs were required to provide extra clean-up days to remove it. He contended plaintiffs were entitled to additional compensation of $4,630.50 for 18 days in 1961, $2,415.20 for 14 days in 1962, and $637.44 for 6 days in 1963.

On cross-examination Miele admitted that no resolution had ever been adopted by the township committee authorizing plaintiffs to perform extra work or that they would be paid for extra work — that, in fact, plaintiffs never asked for adoption of such a resolution. He conceded that monthly bills for payments due under the contract were submitted and paid throughout the contract period and that no bill for extra compensation was submitted until February 21, 1964 after the contract had terminated. He also admitted that under the contract clean-up weeks were to be designated by the township committee and that plaintiffs had received letters advising them of the weeks so designated.

Joseph Quail, a former employee of the township board of health who had served as its sanitation officer during the contract period, was called as a witness for plaintiffs. He testified that when residents complained that their garbage was not being collected he would call Miele and tell him to pick it up. When Miele informed him he intended to seek compensation for picking up materials not covered by the contract specifications he told Miele this was not his concern since he had no authority to compensate plaintiffs.

At the close of plaintiffs' case defendant moved for a judgment of dismissal on the ground there was no proof of a contractual or gwasi-contractual relationship between the parties which was binding on the township. The trial judge reserved decision. The trial then proceeded and the township offered evidence in defense of the action. Richard Seuffert, the township business administrator, admitted that Miele complained to him during the first two years of the contract period that residents were not setting out garbage for collection as they should. However, he denied he had directed Miele to collect material not called for in the contract and maintained that he had told Miele not to do so. He testified that he had told Miele he expected plaintiffs merely to live up to the terms of the contract. Seuffert also testified the contract called for nine clean-up weeks during the three-year period, three each year, and that the township designated only six clean-up weeks during the entire period. He said plaintiffs were never promised extra compensation above the contract price.

. Both Ernest Kavalek and Earl Moody, members of the township committee, also denied they ever directed plaintiffs to collect materials not called for under the contract and denied that plaintiffs were ever promised additional compensation.

Following the jury verdict awarding damages to plaintiffs, defendant renewed its motion for judgment of dismissal upon which decision had been reserved, and in the alternative, for a new trial. Both motions were denied and this appeal followed.

We are satisfied that the decisive issue involved in this appeal is whether the trial judge erred in denying defendant’s motion for a judgment of dismissal at the close of plaintiffs’ case.

Defendant argues that, assuming plaintiffs’ evidence and the inferences drawn therefrom to be true, the motion for dismissal should have been granted because the township was not legally obligated to pay plaintiffs for the additional work allegedly performed. It contends the proof showed that no extra work was authorized either by the township or any authorized representative on its behalf; that there was no agreement, express or implied, to compensate plaintiffs for any additional work, and that view in the light most favorable to plaintiffs it showed only that township employees told plaintiffs to collect and dispose of all refuse and rubbish set out for collection by residents.

The trial judge based his denial of defendant’s motion for judgment on Home Owners Construction Co. v. Borough of Glen Rock, 34 N. J. 305 (1961). In that case plaintiff brought suit against the municipality for extra labor and materials furnished in construction of a road. The trial judge granted defendant’s motion for summary judgment and plaintiff appealed. Plaintiff’s affidavit alleged that during construction it was discovered that the road base was unstable and that in order to correct the same it was necessary to excavate to a greater depth than called for in the specifications and to replace it was a stone base. Defendant’s engineer directed plaintiff to do the additional work and said the cost would be paid by the borough separately and not under the original contract. Plaintiff also performed other additional work at the engineer’s request under the same arrangements for payment. The Supreme Court stated that bidding and appropriation statutes must be faithfully observed but should be construed fairly and sensibly, and that in the course of a construction contract bona fide emergencies might arise and incidental alterations might be required. It further stated that in such cases where the additional expenses are reasonable and conscientiously view as being in fulfillment of the original undertaking, rather than as departing therefrom, it would be contrary to the public interest to halt the undertaking and call for bidding on the additional work entailed by the emergency or the incidental alteration. The court said that the original contract between the parties disclosed that the contract price was based on estimated quantities which could be increased or decreased on order of the borough engineer, and that if the case went to trial plaintiff might well establish that the extra work and materials were within contemplation of the original contract and that the engineer had authority to authorize the extra work. Concluding that factual issues were presented, the court vacated the summary judgment and remanded the case for a plenary trial.

We are satisfied that the facts in the instant case readily distinguished it from Home Owners Construction Co. v. Borough of Glen Rock, supra. Here there was no bona fide emergency which could not have been dealt with by the municipality under the provisions of N. J. S. A. 40:50-1 pertaining to municipal action when emergencies arise. Nor do the facts show that an incidental alteration of the contract was agreed upon by the parties. Plaintiffs concede that the alleged additional work was not within contemplation of the original contract, and there was no evidence that any municipal employee had authority to authorize the performance of extra work which would be binding on the township.

Since plaintiffs concede no express contract was entered into with the township or any employee authorized to act on its behalf we are not here concerned with the statutory restrictions and limitations relating to municipal contracts for the collection and disposal of garbage. See N. J. S. A. 40 :66-4, 40 :50-1, 40 :50-6.

Plaintiffs claim defendant is liable either upon an implied contract or in gwasi-contract. They allege they performed services outside of the scope of the contract for which they should be paid; that defendant, having accepted the benefit of the service, is estopped to deny payment, and that the township’s failure to specifically deny plaintiffs’ right to compensation and to repudiate the services as they were rendered constituted a ratification sufficient to imply its responsibility therefore.

[ 1-3 ] It is well established in this jurisdiction that a municipality can ratify a contract entered into by an unauthorized agent so long as such contract is one within the corporate power of the municipality. Johnson v. Hospital Service Plan of N. J., 25 N. J. 134, 135, 140 (1957). And see Potter v. Borough of Metuchen, 108 N. J. L. 447, 450-451 (Sup. Ct. 1931). Ratification need not be expressed; it may be implied when the conduct .of the municipality manifests an intention to affirm the unauthorized act of its agent. The intention to ratify an unauthorized transaction may be inferred from a failure to repudiate it. Johnson v. Hospital Service Plan of N. J., supra, 25 N. J., at pp. 140-141. Moreover, it has been repeatedly held that equitable principles of estoppel will be applied against municipalities where the interests of justice, morality and common fairness clearly dictate that course. 405 Monroe Co. v. City of Asbury Park, 40 N. J. 457, 463 (1963); Gruber v. Mayor and Tp. Com. of Raritan Township, 39 N. J. 1, 13 (1962).

However, since ratification and estoppel are based upon knowledge and intention it must be shown that the governing body of the municipality acted (or failed to act) with full knowledge of the material facts involved, either actually or as a matter of law. Board of Education of City of Asbury Park v. Hoek, 38 N. J. 213, 215 (1962).

In the instant case plaintiffs concede that no public officer promised them payment for the alleged extra work. There was no evidence that the governing body of the township had knowledge that plaintiffs were performing work outside the scope of the contract. The first time the governing body was advised of plaintiffs’ claim was on February 21, 1964, after the three-year contract had terminated.

Furthermore, even if unauthorized township employees had promised plaintiffs they would be paid if they performed extra work, the township could not be held liable. Giardini v. Mayor, etc., of Town of Dover, 101 N. J. L. 444 (Sup. Ct. 1925); Car Spring and Rubber Co. v. City of Jersey City, 64 N. J. L. 544 (E. & A. 1900).

We conclude, therefore, that there was no ratification of an implied contract by the municipal governing body and that the municipality did not engage in such conduct as to estop it from denying ratification. There having been no ratification, there can be no recovery. Potter v. Borough of Meluchen, supra; Giardini v. Town of Dover, supra; Car Spring and Rubber Co. v. City of Jersey City, supra. To hold otherwise would empower unauthorized municipal employees to impose liability on a municipality without the determination and judgment of the governing body to whom that function has been committed by statute, and would subvert the legislative purpose of the bidding statute to protect the public interest by keeping costs at a minimum and preventing fraud in municipal contracts.

The motion for judgment of dismissal should have been granted. In view of that determination we find it unnecessary to pass on the other grounds of appeal raised by defendant.

The judgment will be reversed and the cause remanded with the direction that judgment be entered in favor of the defendant.