author: Hayes, J. D. C.

text:
    LUISA LOPEZ and GLORIA SANTIAGO, PLAINTIFF, v. RENALDO SANTIAGO AND NORMAN SERLIN, DEFENDANT.
    Essex County District Court
    Decided July 17, 1972.

      Mr. George Duggan, attorney for the plaintiff (Jacobson & Silverman, Esqs.)

      Mr. John P. McGee, attorney for the defendant (Gaffey, Webb & McDermott, Esqs.)
   Hayes, J. D. C.

The issue to be determined in this case has not been previously considered by a Court of this State.

The facts are not in material dispute. The plaintiff, Gloria Santiago, suffered personal injury in a two car collision on August 12, 1965. At the time of this accident she was a passenger in a motor vehicle owned by Renaldo Santiago. The owner and operator of the other motor vehicle was Norman Serlin. Neither one of those ears was covered by liability insurance. A judgment was entered in favor of Gloria Santiago and against the defendant Norman Serlin in the sum of $550.00 on April 22, 1971. Subsequently, the plaintiff Gloria Santiago moved for an order directing the Treasurer of the State of New Jersey to pay this judgment out of the Unsatisfied Claim and Judgment Fund. This motion was opposed by the Fund based upon N. J. S. A. 39:6-70 (d). Under this section of the statute the applicant must show: “He was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child, and was not operating a motor vehicle in violation of an order of suspension or revocation.” The plaintiff, Gloria Santiago, says that she was not the legal wife of Eenaldo Santiago at the time of the accident and that, therefore, she is not excluded by this section of the statute.

The testimony of Gloria Santiago revealed that she was living with Eenaldo Santiago at the time of this accident. She had, in fact, lived with him for about six years and she was publicly known as Mrs. Santiago. During the period of time that she lived with him, she had four children by Eenaldo Santiago. All of the every day elements.of a husband and wife relationship were present over this period of time, but no marriage license had ever been obtained and no ceremony was ever performed. The plaintiff filed this suit as “Gloria Santiago.” Every action taken by her to date has been in the name of Gloria Santiago. It was at the argument of this motion that she appeared and testified that she had never been a party to a marriage ceremony with Eenaldo Santiago and that, in fact, her name was Gloria Lopez. She frankly admitted that she had lived with him for 5 to 6 years as his wife and was known as Mrs. Santiago. She said that she held a driver’s license and social security card in the name of Gloria Lopez and that the birth certificates of the children bore the name of Lopez. The birth certificates were not produced.

Black’s Law Dictionary simply defines the word “spouse” as someone’s husband or someone’s wife. The position of the plaintiff, Gloria Santiago, is that she was not legally the wife of Eenaldo Santiago at the time of the accident and, therefore, lie was not her sponse. She admits that his car was uninsured, but says that since he was not her legal spouse, she is not excluded from recovering from the Fund by N. J. S. A. 39:6-70 (d). The position of the Fund is that Gloria Santiago after having actually lived, with Renaldo Santiago as his wife, should be estopped from asserting the invalidity of the marriage so as to obtain money from the Fund which she clearly could not have claimed if, in fact, she had entered into the relationship of husband and wife through a valid ceremony.

The case of Dawson v. Hatfield Wire & Cable Co., 59 N. J. 190 (1970), has been cited by the Fund in support of its position. In this case the petitioner claimed dependency benefits under the Workmen’s Compensation Act as the result of the death of her husband. The deceased had been married before and there was no evidence that this prior marriage had been legally terminated. However, the petitioner had been ceremonially married to the deceased and had lived with him as his wife in good faith over a number of years. Under the facts of this case, the Court found a de facto relationship of man and wife so as to permit recovery under the Workmen’s Compensation Act. Actually, this case is not in point with the issue of the case at bar. However, it does illustrate the Court’s consideration of the test of the husband and wife relationship as it related to the intent and purpose of the particular statute involved. This is what the Court did in the Dawson case in furthering the intent and purpose of the Workmen’s Compensation Act.

The overall purpose of the Motor Vehicle Responsibility Law (L. 1952, c. 173) and the Unsatisfied Claim and Judgment Fund Law (L. 1952, c. 174), is to induce the owners and operators of motor vehicles to procure liability insurance and, therefore, mitigate the evil sought to be corrected by those laws—the helplessness of persons injured by financially irresponsible motorists in the maintenance and use of their motor vehicles. Proskurnja v. Elder, 73 N. J. Super. 466 (1962). A further purpose is to provide a measure of relief to innocent victims who sustain losses or injury inflicted by financially irresponsible operators of motor vehicles where otherwise they would be without remedy. Feliciano v. Oglesby, 102 N. J. Super. 378 (1968); Corrigan v. Gassert, 27 N. J. 227 (1958); Douglas v. Harris, 35 N. J. 270 (1961).

Exclusions such as provided for in N. J. S. A. 39 :6-70 (d) and N. J. S. A. 39 :6-70 (b) (the latter section of the statute excludes the spouse, parent or child of the judgment debtor from recovering out of the Fund), were made part of this statute to effectuate its overall purposes. The Fund is not intended to give financial relief to every claimant. The claimant must be one intended to be protected and he must clearly demonstrate that he belongs to a class for whose benefit the Fund was established. Wormack v. Howard, 33 N. J. 139 (1960); Feliciano v. Oglesby, supra. N. J. S. A. 39:6-70 (d) clearly indicates the Legislative intent that persons riding in an uninsured motor vehicle owned by themselves or by one of such close relationship as a husband or wife, parent or child, constituted a class which was not to benefit from the Fund because to permit them to so benefit would be a contradiction of the aforestated overall purposes and spirit of the Act. Should this Court be bound by the narrow definition of the word “spouse” so as to permit the plaintiff Gloria Santiago to recover from the Eund even though if she had been married in a valid ceremony she obviously could not so recover? If the motor vehicle had been owned by her stepfather, would the plaintiff be allowed to recover from the Eund on asserting that he was not her parent, but denied recovery if he was her natural father ? The Court gives a negative answer to both questions. A narrow definition of the word “spouse” cannot be adhered to when to do so would result in an unreasonable eonstruetion of the statute. The New Jersey Supreme Court in the case of Alexander v. New Jersey Power and Light Co., 31 N. J. 373 (1956), said at p. 378

The statute is to to receive a reasonable construction, to serve the apparent legislative purpose. The inquiry in the final analysis is the true intention of the law; and, in the quest for the intention, the letter gives way to the rationale of the expression. The words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms. The particular words are to be made responsive to the essential principle of the law. . . . The indubitable reason of the legislative terms in the aggregate is not to be sacrificed to scholastic strictness of definition or concept. Wright v. Vogt, 7 N. J. 1 (1951). * * * The intention emerges from the principle and policy of the act rather than the literal sense of particular terms, standing alone. Caputo v. Best Foods, Inc., 17 N. J. 259 (1955).

It lias been similarly held in many other cases including Giles v. Gassert, 23 N. J. 22 (1956), Corrigan v. Gassert, 27 N. J. 227 (1958), and Giacobbe v. Gassert, 29 N. J. 421 (1959).

It is true that this law must be liberally construed to advance and carry ont its beneficial purposes. However, its beneficial purposes do not encompass the claim of the plaintiff occupant of an uninsured motor vehicle in this case. To permit tile payment of this claim out of the Fund would be to thwart the very purposes of the Unsatisfied Claim and Judgment Fund Law. This Court finds that under the facts of this ease, the plaintiff Gloria Santiago and Renaldo Santiago had established a de facto relationship of man and wife and had been living as such for many years at the time of this accident; that the legislature did not intend that a person living in this relationship and riding in an uninsured motor vehicle owned by the other party to the relationship, as it existed m this case, be entitled to the protection of the Unsatisfied Claim and Judgment Fund Law. Therefore, I conclude that the claim of the plaintiff Gloria Santiago that she be reimbursed out of the Fund, is barred by N. J. S. A. 39:6-70 (d). To find otherwise, would be to defeat the overall purposes of this statute. The motion is, therefore, denied. Please submit an order.


source: Caselaw Access Project

author: Paul R. Huot, J. D. C.

license: Public Domain

text:
    CHARLES TANELLA AND ANNA TANELLA, HIS WIFE, PLAINTIFFS, v. MARY ALICE RETTAGLIATA, DEFENDANT.
    Bergen County District Court
    Decided July 19, 1972.

      Mr. Vincent McCarthy, Attorney for Plaintiff (Bergen County Legal Services Assurance Corp.)

      Mr. Guy J. Lanza, Attorney for Defendant.
   Paul R. Huot, J. D. C.

In this action plaintiffs seek (1) damages for the value of a washer and a dryer; (2) damages for distraint of a washer and dryer; and (3) damages for trespass. Defendant counter-claims for rent due March, April, May and June at the rate of $235 per month, and damages to the garage located upon the property. Plaintiffs’ defenses to the counterclaim raise interesting legal questions.

Plaintiffs and defendant entered into a written lease agreement, Ex. J-1 Ev., by which plaintiffs (tenants) leased from the defendant (landlord) an apartment on the second floor of premises known as 263 Terrace Avenue, Hasbrouck Heights, New Jersey, for a term of two years beginning July I, 1969 and terminating June 30, 1971, at a monthly rental of $215 per month during the first year of said term and $235 per month during the second year of said term.

The plaintiffs entered into possession of the apartment and continued therein without event until 1971. Personal problems then developed and under date of February 18, 1971 the plaintiffs wrote to the defendant, Ex. D-l Ev., requesting a termination of the lease on March 31, 1971 and use of the security deposit for March rent.

The defendant replied under date of March 2, 1971, Ex. D-2 Ev., indicating conditions to be met by plaintiffs to obtain defendant’s consent to termination and requiring that such terms be accepted by March 5, 1971.

The plaintiffs did not respond to Ex. D-2 Ev. by March 5, 1971 (which the court notes was a Friday) and on March 8, 1971 a summons and complaint in tenancy was issued from this court by defendant. A copy of the same was served upon the plaintiffs by the constable on March II, 1971 by affixing a copy to the door of the premises. The return date for trial of the landlord-tenant dispossess was March 18, 1971 at which time the plaintiffs herein did not appear. The case was marked default but no proofs were ever received and no judgment of possession was entered. The tenancy complaint sought possession for nonpayment of the rent due March, 1971.

The plaintiffs removed their possessions, except the washer and dryer, from the premises on March 19, 1971.

I

In this action the plaintiffs seek the value of the washer and dryer which they contend was not removed because the defendant would not permit peaceable removal. The defendant denies this but admits that she did require, before removal, that plaintiffs provide a licensed plumber to disconnect the appliances.

The court finds as a fact that defendant did prevent plaintiffs from removing the washer and dryer on March 19, 1971 and required the services of a licensed plumber as a condition for removal. The court finds that defendant paid a licensed plumber $36.75 on or before July 1, 1971 to remove said appliances and to place them in her garage. The court further finds that since July 1, 1971 the washer and dryer were available to plaintiffs for the taking, but that plaintiffs did not obtain the same until March, 1972.

The complaint in the instant matter was filed June 2, 1971 and seeks damages for the retention of the washer and dryer. These items are now in possession of the plaintiffs so that their value has been eliminated from this case as a measure of damages.

Plaintiffs contend that they are entitled, at least, to the reasonable rental value of the washer and dryer or the cost of doing laundry at a commercial laundry for the period of one year that they were deprived of their appliances.

Defendant contends that plaintiffs are not entitled to any money for such deprivation because the failure to have the use of their appliances was caused by plaintiffs’ acts. Defendant contends that the request for a licensed plumber was reasonable on the part of defendant, that plaintiffs could have obtained such plumber, removed their appliances and, if they felt it to be an unreasonable expense, sued for the costs.

The Building Inspector of the Borough of Hasbrouck Heights was called by the plaintiffs as an expert to testify that a licensed plumber was not required to disconnect the washer and dryer. The court accepts this as a fact and finds the requirement by the defendant to be unreasonable. However, the court finds equally unreasonable the refusal of the plaintiffs to obtain a plumber for such removal. To leave behind two valuable and necessary appliances because of defendant’s demand for a plumber is nonsensical. Plaintiffs’ damage was caused more by their own acts than by the act of defendant.

II

The defendant has counterclaimed for rent for the months of March, April and May at $235 per month, less the security of $215 or a net of $490 in the first count of the counterclaim and for $150 damages to the garage in the second count. No evidence was adduced by the defendant concerning damage to the garage or anjr other property so the second count must fall for failure of proof.

The counterclaim seeks rent for March, April and May but the case was tried and argued, without objection, for March, April, May and June, the balance of the lease term. Likewise, without objection, the case was tried and argued that the plaintiffs were entitled to a return of security. Since both parties presented evidence and legal argument in the assertion of these claims the court amends the pleadings to conform to the evidence and arguments asserted. Rule 4:9-2; Rule 6:3-1.

The defendant did not obtain a new tenant until July 1, 1971 and argues that she is entitled to the rent for the apartment by virtue of the lease, Ex. J-l Ev. The lease term, as cited above, was until June 30, 1971 at a monthly rental, at the time in question, of $235 per month. In addition paragraph Eighth of the lease provides:

EIGHTH: That in case of default in any of the covenants or if the premises become vacant, the Landlord may re-enter by means of summary proceedings or any other method prescribed by law, with or without notice of an intention so to do, and resume possession and re-let the premises in his own name, without terminating this lease or in any manner affecting the obligation of the Tenant to pay the rent herein covenanted to be paid, in which event, however, there shall be credited to the account of the Tenant the amount received from re-letting after deducting the expenses of such summary or other proceedings as may be necessary in order to regain possession under this provision, as well as the cost of re-letting the premises, and rajjairing and redecorating if any, and the execution of a new lease for the same premises shall not terminate the Tenant’s liability or obligations hereunder, which shall in any event remain in full force and effect for the full term of this lease, and a Tenant, who has once vacated may not re-enter without the consent of the Landlord or his Agents, and no act or thing done by the Landlord or Ms Agents during the term hereby granted, shall be deemed an acceptance or a surrender of said premises, and no agreement to accept a surrender of said premises shall be valid, unless the same be made in writing and personally subscribed by the Landlord. And the Landlord further reserves the right to rent the premises for a longer period of time than fixed in the original lease without releasing the original Tenant from any liability. The Tenant hereby expressly waives any and all right of redemption in the event the Tenant shall be dispossessed by judgment or warrant, of any court or judge, and the Tenant waives and will waive all right to trial by jury in any summary proceeding- hereafter instituted by the Landlord against the Tenant in respect to the demised premises or in any action brought to recover rent or damages hereunder. (Emphasis added).

It has long been held that a court must enforce a contract between parties as written, and it may not re-write the terms which the parties have agreed upon. Marini v. Ireland, 56 N. J. 130, 143 (1970) ; citing Kampf v. Franklin Life Ins. Co., 33 N. J. 36 (1960). And it has long been the law in New Jersey that a landlord may recover rent from a tenant for the entire term of the lease. Fibish v. Bennet, 131 N. J. L. 98 (Sup. Ct. 1943), aff'd 132 N. J. L. 168 (E. & A. 1944).

If a tenant abandons the property the landlord may permit it to remain idle and recover rent from the tenant, or, he may re-enter, in which event he has the duty to seek a new tenant to minimize his damage. Weiss v. I. Zapansky, Inc., 65 N. J. Super. 351 (App. Div. 1961), and cases cited therein.

Plaintiffs, however, argue that there was no abandonment. Plaintiffs contend that there was a valid surrender of the premises and that a valid surrender terminates the obligation to pay rent. Plaintiff relies upon Duncan Development Co. v. Duncan Hardware, 34 N. J. Super. 293 (App. Div. 1955), cert. denied 19 N. J. 328 (1955), and Hunt v. Gardner, 39 N. J. L. 530 (Sup. Ct. 1877). In Duncan the court said at page 299 of 34 N. J. Super.:

Surrender may be express or implied by law. To warrant a surrender by operation of law, the minds of the parties must concur in a common intent of relinquishing the relation of landlord and tenant, and that intent must be executed by acts tantamount to a stipulation to put an end thereto. It results from acts which imply mutual consent independently of the expressed intention of the parties that their acts shall have that effect. (Citations omitted). The acts must be incompatible with the continued existence of the relationship of landlord and tenant under the lease.
To constitute a surrender of a lease by act and operation of law, there must not only be an abandonment by the tenant, but an acceptance by the landlord (Citations omitted). But the mere receipt of keys and the landlord’s endeavor to relet the property may not, without more, constitute an acceptance of surrender. (Citations omitted).
V/liether there has been a surrender by operation of law depends on the intention of the parties to be deduced from their words and acts . . . the burden of proof is on the party alleging the surrender, and where it is to be inferred from circumstances or conduct inconsistent with an intention to perform, the proof must be clear (Citations omitted).

The plaintiffs’ position is that the institution of the tenancy action T 25734 by the defendant constituted an acceptance by the defendant of plaintiffs’ abandonment of the premises. The tenancy action sought possession of the premises because the plaintiffs failed to pay rent for the month of March. The court cannot construe the tenancy suit as an acceptance of abandonment because at the time of the suit there had not yet been a physical abandonment. Further, D-l Ev. was precatory in nature, not declaratory, and, thus, does not give rise to the argument of anticipatory breach.

The plaintiffs argue, in the alternative, that the institution of the tenancy action was an act by the defendant so contrary to the landlord-tenant relationship that it constituted a valid ground for removal by the tenant. However, this argument ignores the acts and words of both the plaintiffs and defendant prior to the institution of suit. Further, to accept this argument would be tantamount to saying that a person who breaches a contract is absolved from responsibility for such breach if the other party to the contract takes any action to enforce his legal rights. The results of such a decision would be to require landlords who have a written lease with a tenant to permit the tenant to live out the entire term without paying rent before suit could be brought. It would also permit a tenant to unilaterally breach his contract and not be responsible for the breach. In other words, what the plaintiffs here say is that if a landlord seeks to dispossess a tenant for nonpayment of rent, he thereby waives all his contractual rights. He has, in effect, chosen to enforce statutory rights in lieu of contractual rights. The logical corollary to plaintiffs’ contention is that in order to enforce his contractual rights, a landlord must waive his statutory right to dispossess for nonpayment of rent and be relegated to a suit for damages, that is, upaid rent, at the termination of the term.

In Raleigh Realty Corp. v. Jacobs, 127 N. J. L. 454 (Sup. Ct. 1941), the landlord obtained a judgment for rent due March, April, May and June, 1940, where the tenant had been disspossessed by statutory proceedings. The Supreme Court there affirmed a district court judgment because the lease there, as here, granted the right to the landlord to re-enter, upon default by the tenant, and re-let for the benefit of the tenant who would remain liable for the term. The court there said, p. 455:

The clear implication of the language now under consideration is that the tenant remains liable for rent if he deserts the premises or is evicted because default in his obligations.

And in Fibish v. Bennett, 131 N. J. L. 98, 99 (Sup. Ct. 1943) was said:

* * * here the lease bound the defendants to pay the rent for the period of the letting and authorized the landlord in the event the premises became vacant or deserted to re-enter and relet same and to apply the rent so received toward the rent due under the lease. The eviction (by summary dispossess proceedings for nonpayment of rent) did not absolve the tenants from the obligations of the lease to pay the rent. There was no reletting during the remainder of the term. It seems clear that the meaning of the lease was that the tenant was to pay the rent irrespective of why the premises were vacated, whether by a voluntary vacation by the tenant or by an eviction by lawful proceedings * * *.

Fibish v. Bennett, supra, was affirmed, 132 N. J. L. 168 (E. & A. 1944), but modified by the Court of Errors and Appeals to apply to cases “where the ‘eviction by lawful proceedings’ is the result of the default of the tenant in the discharge of an obligation imposed on him by the lease * *

The tenants here raise this question anew. In effect, the tenants argue that this should not be the law today. In effect, the tenants argue what Judge Pashman said in John F. Inganamort et al. v. Fort Lee et als, 120 N. J. Super. 286, (Law Div. 1972):

The law cannot be so rigid that society is helpless when traditional concepts are not entirely adequate for new issues * * * Judicial imagination must be equal to this challenge.

A lease is a written contract, as any other written contract. A breach of the lease contract gives rise, as the breach of any other contract, to a right to sue for damages for the breach. The New Jersey statutes which govern landlord-tenant relations is a legislative recognition that damages for breach of contract are not always an adequate remedy. Thus, for years summary dispossession was available to a landlord where a tenant failed to pay rent, as was distraint, detainer and the other self-help measures. More recently with the increased shortage of housing, judicially noticed in Academy Spires, Inc. v. Brown, 111 N. J. Super. 477, 480 (Cty. Ct. 1970), measures have been adopted to balance the scale in behalf of the tenant. The Reprisal Act L. 1970, (c. 210, N. J. S. A. 2A:42-10.10 et seq.), The Administrator of Rents Act (c. 224, N. J. S. A. 2A:42-74 et seq.), The Amendments of 1971 concerning distraint (c. 228, N. J. S. A. 2A:33-1), detainer (c. 227, N. J. S. A. 2A:39-1 et seq.) and security deposits (c. 223, N. J. S. A. 46:8-19 et seq.).

All of these statutes, whether for the benefit of the landlord or for the benefit of the tenant, are superimposed on the rights and duties of both landlord and tenant as expressed in the lease.

At the time of plaintiffs’ breach of the lease by nonpayment of the rent due March 1971 the landlord had the following course of action open to her: (1) she could sue for the rent due for March 1971; (2) she could sue, as she did, for possession under N. J. S. A. 2A:18-53; (3) she could wait until the end of the lease term and sue for all unpaid rent; (4) she could enter peaceably, change the locks and detain the premises (Chapter 227 of the Laws of 1971 was not adopted until June 1971); (5) she could distrain the chattels of the plaintiffs until payment of the March rent (Chapter 228 of the Laws of 1971 was not adopted until June 1971).

Thus, at the time of plaintiffs’ breach the defendant had five possible remedies available to her by statute or general contract law. In addition, she had the following remedies through paragraph Eighth of the lease: (1) she could enter without court action; (2) she could enter and re-let the premises; (3) she could hold the plaintiffs for rent for the entire term.

In contrast, at the time of plaintiffs’ breach, a tenant had the following remedies available in the event of a breach by a landlord: (1) he could move out and hope that a court would find that the reason for vacating was sufficient to constitute a constructive eviction; (2) he could sue for damages for breach of the contract; (3) he could withhold the rent for the repair of vital facilities, Marini v. Ireland, supra.

No remedies were provided by the lease contract to the tenant for a breach by the landlord.

This imbalance was somewhat cured by the Legislature in June 1971 as indicated above.

Mutuality of remedy is not a prerequisite to the validity of a contract. Mutuality of obligation is, however, a requirement for all contracts. 51C C. J. S., Landlord and Tenant §§ 189, 210c. Consideration from each party to a contract must be furnished by each party. And, thus, plaintiffs argue that they should not be held to pay rent for “use and occupancy” if the defendant is not obliged to make that “use and occupancy” available. If a landlord exercises his right to dispossess a tenant, he should do so as a waiver of all rights to collect future rent.

If a landlord seeks summary dispossession he may not obtain rent also. In the recent case of Sprock v. James, 115 N. J. Super. 111 pp. 113, 114 (App. Div. 1971), it was said:

* * * (.]j6 actions were simply for possession on the ground of nonpayment of rent. Brought as they were under the summary dispossess statute, they were not actions for recovery of the rent. To the extent that the rent * * * was paid over to the landlord, it gave the landlord a remedy * * * not available in her particular action. To the extent that payment was thus made, the payment abrogated the grounds for possession * * * the court’s action in permitting the landlord to have both possession and the rent was error.

A landlord may not have both possession and rent in a summary dispossess action. Likewise, in a suit for rent, a court could not order dispossession. If a landlord waited until the end of the lease term to sue, obviously he would have waived any right to possession. If a landlord entered peaceably and detained the premises and/or distrained the chattels of the tenant the obligation for rent (without written contrary terms) would cease with the cessation of occupancy. Thus, certainly, without consideration of the written agreement, the use of statute or contract law as a remedy would be mutually exclusive—the landlord would have made an election of remedies.

Does the lease herein alter the obligation of the landlord to elect Ms remedy? Paragraph Eighth is set forth in full above and specifically reserves to the defendant the right to dispossessess the plaintiff and still hold the plaintiff for rent for the term of the lease. And, as the cases discussed above indicate, this has been sufficient to permit recovery by a landlord.

Yet, here is where the basic contractual concept of mutuality of obligation arises. The enforcement of this lease provision is to require plaintiffs to pay rent but not require the defendant to provide anything as consideration for that rent. While this lease, as all form leases, is heavily weighted for the benefit of the landlord, there is mutual consideration to validate the agreement. However, once the tenant is out of possession, the only consideration flowing from the landlord has ceased.

It is true that dispossess proceedings indicate a prior breach of a contract on the part of the tenant. That breach as any breach of contract, gives rise to an action for damages by the aggrieved party. Here, however, the defendant wants damages in the form of rent for the breach of the lease as well as a return of consideration. In no other area of contract law is it possible to obtain a judgment for the purchase price and a return of the article purchased. This court does not believe that it should be true in landlord-tenant actions either.

That does not mean, however, that a landlord would not be entitled to damages for the breach of contract by the tenant. Those damages will be measured under the general rule of damages which flows from the breach and thus may be more or less than the amount of the rent reserved for the term of the lease.

However, it is not necessary for this court to determine that changing circumstances demand a change in law. All of the prior decisions which permitted a landlord to recover rent for the balance of the lease term concern leases wherein rent for the lease term was reserved. In that element they are distinguishable from the case sub judice.

The lease between plaintiffs and defendant here provides for the letting of the premises for the term of two years “to be used and occupied as a strictly private dwelling apartment for the tenant and members of his family only and for no other purpose, payable in monthly payment of Two hundred fifteen dollars, in advance on the first day of each and every month during the said term, * * (Emphasis added).

Here is no reservation of rent other than a monthly reservation. Rent became due on the first of each month, and only then. And, if the tenant is dispossessed before the rent becomes due, the tenant is obligated to pay only the accrued rent. A dispossession does not end a tenancy for all purposes, but the rent and the remedy for its collection are suspended. Hunter v. Reilly, 43 N. J. L. 480 (Sup. Ct. 1881), so holds and is constantly cited as authority and as a landmark decision.

The court concludes that the reservation of rent was for a monthly term not a two year term; that the March 1971 rent in the amount of $235 was reserved and accrued and due to the landlord; that the taking of a default in the dispossess action was a sufficient election of remedy to justify the vacating of the premises by the tenant; Lizak v. Rottenbucher, 140 N. J. Eq. 76 (Ch. 1947); Newsom v. Liberty Sign Co. et al., 416 S. W. 2d 442 (Civ. App. Texas, 1967); Carter v. Long, 455 S. W. 2d 812 (Civ. App. Texas, 1970); that such election bars the recovery of rent where possession is surrendered; that defendant is entitled to $235 which is the rent due for March 1971; that the plaintiffs are entitled to credit of $215 security; that defendant is entitled to a judgment on the counterclaim of $20.

In summary then, there will be a judgment in favor of the defendant on the complaint of no cause for action and a judgment in favor of the defendant on the counterclaim for $20.


text:
    WILLIAM R. SILLERY, PLAINTIFF, v. JAMES FAGAN AND MARIA FAGAN, HIS WIFE, DEFENDANTS.
    Bergen County District Court
    Decided July 24, 1972.

      Mr. Harry II. Chandless, Jr., Attorney for Plaintiff.

      Mr. John J. Dudas, Jr. (Bergen County Legal Services Assurance Corporation), Attorney for co-defendant, Cross-Claimant Maria Pagan.
   Paul R. Huot, J. D. C.

The question which this case ■presents is based upon a well established theory, namely, that it is the husband’s responsibilit}»' to provide “necessities” for his wife. Specifically, the issue is whether a wife can be held liable for medical necessities provided for her while giving birth to a child, when no written agreement had been entered into by her with the hospital or its staff and her husband was with her, living at home.

The facts in this case have been stipulated. Defendants Maria Eagan and James Eagan were living as husband and wife at the time services were rendered. They are now separated and defendant husband is not before the court. While defendants lived together defendant Jams Eagan gave his wife approximately $60 a week for household expenses and occasionally paid other household expenses.

Erom June 25 to July 2, 1969 defendant Maria Eagan was a patient in the Englewood Hospital. Medical services were rendered in connection with the birth of her sixth child in the amount of $250. The amounts are stipulated to be fair and reasonable.

When Mrs. Eagan originally entered the hospital there was no written agreement concerning the charges for the services rendered to her. All bills in this matter were in the name of her husband, James Eagan, but demand for payment was made upon Maria Eagan before the institution of this suit.

The question raised is whether a woman may be held liable for medical necessities provided to her at a time when she is married and living with her husband.

I

The landmark ease in this area is of French vintage and was decided in 1659. It was translated and used as the basis of the English decisions. Manby v. Scott, 1 Sid. 109, was brought in the Exchequer Chamber on assumpsit for goods supplied to defendant’s wife after defendant had given notice that he would not pay for them. The court held for defendant, but the case is important because it stated the underlying theory which became the cornerstone of the common law rule governing the responsibility of a husband for his wife. The ease was cited as authority in England because, it is said, it involved the two sexes and “related to acts of wives, who are, by the law of this country and the law of God, accounted identical with their husbands * *

I. Whether every law but our own imposes on a husband the duty of maintaining Ms wife? The laws of God, of nature, and of nations, tend greatly to promote and encourage matrimony, as the cause to which man owes the successive propagation and continuance of his race; and it nevir can be supposed that laws which encourage such a state, would idace either of the parties to it beyond their care, or expose them to the evils arising from separation, from cold and hunger. Holy scripture enjoins husbands, quod amore affidavit uwores suas. Therefore any neglect of wives can be considered in no more favorable light than a contempt of this ordinance, which, however, it is emphatically our duty to observe, emphatically because, before the sanction of divine authority, it was a law of nature, written on the hearts of all men, of which the practice of all nations is sufficient, testimony. And though hardly any law gives the husband so much, power on marriage as our own (the civil law, for instance, did not),, nevertheless all laws oblige the husband to maintain his wife.

In Manly v. Scott, the court sets forth reasons for the husband’s liability for necessaries to the wife:

For nobody will dispute that usually the contracts of wives are void, as all their power is transferred 10 the husband by their marriage. Tet, as to matters necessary ”ad suslcntationem vitae,” this power is not transferred, but, on the contrary, established and made absolute in the wife by means of the marriage. This is founded on the necessity of the thing * * * that our law imposes a liability on persons in cases where * * * the support of families * * * are concerned * * *

The court in Manby v. Scott then sets down numerous reasons why wives should be supplied necessaries:

1. As our law gives all that the wife has to her husband on marriage, if wives shall not be allowed to obtain food and other necessaries, wives will be in a worse condition than those who commit treason or felony.
* * Hs H« % * H« *■
5. If husbands shall not be bound by the contracts of their wives for necessaries, without their real assent, husbands may abandon their wives without just cause, when they desire to have others, and thus cause them to perish; and therefore it is more consonant to reason to say, that husbands shall be liable for the contracts of their wives for necessaries, on an assumpsit in law; or that, by marriage, a power is given to wives by the law to take all things necessary for support, by which contracts the husband shall be, during the marriage, irrevocably bound. And thus shall a security be provided for the wife against being stripped on each ungrounded suspicion, and of being starved on each wanton displeasure of her husband.

Manby v. Scott does base the theory on the common law necessity to protect women because of their lack of rights under the law: “If the law willed to empower wives to contract, the same law would also have given them property, that they might retain.”

The modern English cases which are most frequently referred to on this subject are Montague v. Benedict, 3 B. and C. 631 (1825), and Seaton v. Benedict, 5 Bing. 28 (1828), which follow the doctrine or theory handed down in Manby v. Scott.

II

The term “necessaries” in the law of husband and wife has been defined in many different ways according to the circumstances and conditions of the parties involved.

Generally it may be said that a wife has the implied authority as agent of her husband, during his absence, to bind him for medical services which he would have been obligated to have supplied, but that she cannot bind him when he is under no obligation to furnish such services. [71 A. L. B. 059]

The type of medical services involved is not the overriding factor; rather, it is the status of the relationship of the husband and wife. In Vaughan v. Mansfield, 229 Mass. 352, 118 N. F. 652 (Mass. Sup. Jud. Ct. 1918), the court held the wife to have implied authority, as her husband’s agent, to contract for medical services for herself and her child, which are reasonably necessary, in the absence of proof that she has been instructed by him not to run such hills. In Daly’s Astoria Sanatorium v. Blair, 161 Misc. 716, 291 N. Y. S. 1006 (Mun. Ct. 1936), the court held in an action by a private hospital (against a husband living apart from his wife) that a prima facie case was made out by the hospital upon a showing that medical services were furnished to tho wife. Mere proof of separation of husband and wife does not relieve the husband of liability for medical services rendered to the wife. In Overton v. Nordyke, 10 La. App. 317, 120 So. 544 (La. App. 1929), a wife, who had been deserted by the husband, had the implied authority, as her husband’s agent, to contract with a physician for medical services for herself.

There are numerous cases which hold medical services rendered to a wife to be “necessaries.” Kraft v. Wolf, 15 Ohio Dec. 554 (1905): In re Koretzky’s Estate, 180 Misc. 108, 40 N. Y. S. 2d 928 (Sur. Ct. 1943); Johnson v. Coleman, 13 Ala. App. 520, 69 So. 318 (Ala. App. 1915); Zeigler v. David, 23 Ala. 127 (1853); Bevier v. Galloway, 71 Ill. 517 (1874) and Mayhew v. Thayer, 74 Mass. 172 (1857).

Medical services, which have been considered “necessaries,” are usually for a wife or child within the family unit. But a wife has no authority to hind her husband if it is beyond the scope of the family. In Baker v. Witten, 1 Okl. 160, 30 P. 491 (Okl. Sup. Ct. 1892), the wife had no implied authority, as her husband’s agent during his absence, to engage medical services for an employee injured by their son on the husband’s farm. Medical services rendered to an adult daughter, living as a member of the family, was found to be beyond the implied authority of the wife. Breuer v. Dowden, 207 Ky. 12, 268 S. W. 541 (Ky. Ct. App. 1925).

Special circumstances create exceptions to the general rule. Thus, in Kerner v. Eastern Dispensary and Casualty Hos pital, 210 Md. 375, 123 A. 2d 333 (Md. Ct. App. 1956), the husband was found not liable for hospital expenses where they had been separated for 30 years due to no fault of the husband. However, where the separation is caused by the husband, he has been held liable for necessaries. Hall v. Weir, 1 Allen 261 (Mass. Sup. Jud. Ct. 1861); Ott v. Hentall, 70 N. H. 231, 47 A. 80 (N. H. Sup. Ct. 1900); De Brauwere v. De Brauwere, 203 N. Y. 460, 96 N. E. 722 (Ct. App. 1911); and Weiserbs v. Weiserbs, 169 N. Y. S. 111 (Sup. Ct. 1918). Where the wife is of independent means, there seems to be a finer line as to what actually is or is not a necessity. In Connerat v. Goldsmith, 6 Ga. 14 (Sup. Ct. 1849), the court held the wife liable for furniture purchases where she was of independent means and pledged her own note.

Ill

The more recent cases in New Jersey follow the common law doctrine of the husband’s responsibility as to support for necessities of his wife and children. In Tracey v. Tracey, 69 N. J. Super. 382 (App. Div. 1961), the court held the common law duty of a husband to support his wife and children is a continuing obligation enduring throughout continuance of the marital relation, including time during which a suit for divorce between the parties is pending.

In the case of Turi v. Turi, 34 N. J. Super. 313 (App. Div. 1955), the court said:

The duty of a husband to provide suitable support and maintenance for his wife has long been recognized and enforced in this State. This duty is his primary obligation and arises out of the status of wedlock by reason of public policy recognized and enforced by civil and common law, and by the legislation incorporated in N. J. S. 2A:34-23 and 24, N. J. S. A. (formerly N. J. S. A. 2:50-37 and 38). Sobel v. Sobel, 99 N. J. Eq. 376, 378-379 (E. & A. 1926); Bonanno v. Bonanno, 4 N. J. 268, 273 (1950). Such common law obligation to support the wife continues during the existence of the marital relationship.

The husband’s duty to provide “necessaries” to a wife is deeply imbedded in the public policy of New Jersey. In Smedley v. Sweeten, 11 N. J. Super. 39 (App. Div. 1951), the relation of principal and agent was found not to he inherent in the marital relation, hut if the husband wrongfully left the wife without means of subsistence, she became an agent of necessity to supply her wants on his credit. The court indicated that the support of the wife and child is the husband’s responsibility once the “vows” are taken. Only by fault of the wife or where she is provided for can the husband escape liability. In St. Mary’s Hospital v. Paxton, 10 N. J. Misc. 514 (Sup. Ct. 1932), where the spouses had separated by mutual consent, and it was shown that provision had been made for the wife, the hospital could not recover against the husband for services to the wife. The court said:

Where the husband and wife are living in a state of separation, the presumption is against the authority of the wife to bind the husband by her contract. Fncler such circumstances the general rule is that the husband is not liable. To this rule there are two exceptions pertinent to this inquiry, the first of which is where husband and wife separate and live in a slate of separation by mutual consent, without any provision for her maintenance or means of her own for her support; the other, where the wife leaves her husband under the stress of his misconduct of such a character as in law is regarded as justifiable cause for the wife's quitting her husband’s society. In such cases, the presumption being against the liability of the husband for the wife’s contract, the burden of proof is upon the party seeking to enforce against him a liability for her contract. He must show affirmatively the special circumstances which shall fix the responsibility on the husband in order to establish his cause of action, [at 515]

There are no facts in this case that indicate the reason for the separation of the defendants. But it would not matter because the services were rendered while the parties resided together.

Other types of “necessities” to which a wife is entitled is determined by the husband’s status in society. “Where husband and wife are living together, the wife has implied authority to pledge her husband’s credit for such things as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the style in which the husband chooses to live.” Gimbel Bros., Inc. v. Barrett, 109 N. J. L. 63 (E. & A. 1932). It is a question for the trier of the facts as to whether any certain item is a necessary to which their station in life and his financial standing entitled her.

It is obvious that under our facts James Eagan is liable for the medical services rendered to his wife and newborn child.

IY

But the problem raised here is whether the underlying theory creates exclusive liability in the husband so that a creditor may not recover from the wife for necessities.

If a third person provides necessaries to a wife, the liability of the husband may be based either (1) upon his consensual contract to pay for them, made either by him directly or through his wife as agent, or (2) upon his neglect or refusal to perform a legal duty to provide necessaries for his wife.

In some instances it has been held, applying the principles of law of restitution, that a person who has performed non-contractual duty of another by supplying a third person with necessaries which, in violation of such duty, the other has failed to supply, is entitled to restitution from the other. 60 A. L. R. 2d 14.

In order that one who has furnished necessaries to the wife may recover from the husband under the rules of an agency or authority, it must appear that the husband is guilty of a breach of duty; it must appear that he had a duty to supply necessaries or the means of acquiring them, and that he failed to do so. [60 A. L. R. 2. 14]

It is the duty of the husband to support and maintain his wife and family. Hollingshead v. Hollingshead, 91 N. J. Eq. 261 (Ch. 1920); Furth v. Furth, 39 A. 128 (Ch. 1898). There is not only a moral obligation resting on the husband to support his wife, but also a duty imposed by law. Barefoot v. Barefoot, 83 N. J. Eq. 685 (E. & A. 1914).

In Ewell v. State of Maryland, 207 Md. 288, 114 A. 2d 66 (Md. Ct. App. 1955), defendant husband was found guilty of wilfully neglecting to provide for support and maintenance of bis wife under a criminal statute. The court said:

Statutes have been passed in almost all of the States which have made failure of the husband to perform his duly of support, unless adequately excused, a crime. * * They have carried over into the testing of the criminal offense the same standards applied at common law to necessaries and what constituted them.

The duty of the husband to support the wife flows from, and depends upon, the marriage relation. Boehm v. Boehm, 88 N. J. Eq. 74 (Ch. 1917). It has been declared that the duty of a husband to provide for the support and maintenance of the wife remains so long as the relation of husband and wife exists between the parties. As stated previously, if the parties are separated, the husband’s liability usually depends upon whose fault it is that they are separated. If it is by mutual consent, and the wife is adequately taken care of, the husband will normally not be held liable.

Even in cases where the husband is not made a party, the wife is usually found not liable if the goods are necessaries. In Davenport v. Rutledge, 187 S. W. 988 (Tex. Civ. App. 1916), a wife was sued for medical services rendered to her child and the husband was served by publication. On appeal, judgment against the wife was reversed and remanded, the husband being in default, with the court saying:

In order to make the wife personally responsible for the services, she must have entered into a contract with the appellee for services rendered necessary to her child. If there was no such contract, and she only acquiesced or consented for the doctor to treat the child, this would not bind her personally or make her separate property liable. ... It is not sufficient that she merely give an order or call in a physician, for in such case the presumption is that she does so as the agent of her husband, whose duty it is to supply such things. * * * She would not be bound personally for the default of her husband by such verbal promise to pay his debt, [at 990]

A view of the public policy of New Jersey with respect to the family unit indicates that medical services which are supplied to a wife and newborn baby is the obligation of the husband. New Jersey is concerned with maintaining the marital relationship, and the neglect or failure of the husband to perform his legal duty, which arises from the marriage relation, creates his liability for such “necessaries.”

However, in the recent case of Imer v. Risko, 56 N. J. 482 (1970), our Supreme Court abolished the theory of inter-spousal immunity in automobile negligence cases. In so doing the court noted that “At common law, a husband and wife were regarded as one, the legal existence of the wife being merged with that of the husband.” It continued to say that “This fictitious concept was largely dissipated by the widespread enactment of ‘Married Women’s Acts’ in the mid-nineteenth century. These acts were designed primarily to secure a married woman a separate legal identity and to grant her some of the rights theretofore denied her at common law.” The New Jersey Married Persons Act, N. J. S. A. 37:2-1 et seq., is generally in accord with the legislation of other states. Although Immer v. Risko does not concern “necessaries,” it does evidence another inroad upon the long-held common law view of the husband-wife relationship and a weakening of this legal concept. In Long v. Landy, 35 N. J. 44 (1961), the theory of the legal identity of husband and wife was referred to as “artificial and technical.” In that case a widow was allowed to maintain an action against her deceased husband’s estate. In so holding the court said:

The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice.” State v. Culver, 23 N. J. 495, 505 (1957). When the policy behind a rule no longer exists the rule should disappear. Johnson v. Peoples First National Bank & Trust Co., supra [394 Pa. 116] [at 50]

Plaintiff urges that, indeed, the times have changed and that continued application of the common law rule is an instrument of injustice.

It must be conceded by all that the status of women in 1971 is not the same as it was in 1659. But, that is true of society in general. “The laws of God, of nature, and of the nations, tend clearly to promote and encourage matrimony, as the cause to which man owes the successive propagation and continuance of his race” says Manby v. Scott, supra. But, whether that be true or not today, is it cognizable by the court?

The use of prayer is prohibited in tax-supported schools. Chamberlin v. Dade County Road of Public Instruction, 377 U. S. 402, 84 S. Ct. 1272, 12 L. Ed. 2d 407 (1964); atheism is protected as an exercise of free speech. Kingsley International Pictures Corp. v. Regents of University of New York, 360 U. S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 (1959), and the law of God has no power to bind those who have no belief in him.

What are the laws of nature ? Are they evidenced by a song that was popular 25 years ago called “Doing What Comes Naturally” or do these laws come from man’s intellect rather than his emotions. In 1659 it was believed that homosexuality was violative of the laws of nature, and yet today, society’s belief that such acts were unnatural is being eliminated.

Similarly, the laws of nations today have dramatically changed in this area. Divorce was then unknown. Divorce in England was not established until the close of the 17th Century, and then only by Parliament. It was not until 1857 that a secular divorce court was created, and even then it could only grant an absolute divorce in cases of adultery. The laws of nations, of other states in this nation, and of New Jersejp have changed since 1659. And New Jersey has recently passed a new divorce and annulment act in response to the needs of a changing society. See L. 1971, c. 212, which permits support to be awarded in favor of the husband and paid by the wife. That wives may be required to pay alimony to their husband is recognized by the Internal Revenue Code of 1954, § 7701.

Society’s views on birth control and legalized abortion are also in a state of flux. In Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Supreme Court held that a statute which prevented medical advice as to the different forms of contraception was invalid as an unconstitutional invasion of the right of privacy of married persons. The mere fact that a statute of this type was still in effect in the 1960’s is proof of the changing atmosphere of our times.

There are numerous cases now holding abortion statutes unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children. Babbitz v. McCann, 310 F. Supp. 293 (E. D. Wis. 1970); Roe v. Wade, 314 F. Supp. 1217 (N. D. Tex. 1970). The inclusion of these new “freedoms” illustrates the rapidly changing status of the family as a unit.

So today, a court cannot say as did the Manby court: “The laws of God, of nature, and of the nations, tend clearly to promote and encourage matrimony, as the cause to which man owes the successive propagation and continuance of his race; * * *."

Since the “laws of God, of nature and of nations” have been diluted, abrogated, ignored or defied increasingly over the past 300 years, and since they formed, as it were, the premises of the syllogism, is the conclusion still valid?

The status of women has changed in New Jersey over the years. In 1877 laws were enacted which permitted women to retain personal property as a separate estate; to contract as a femme sole; and to absolve a husband from liability for the debts of his wife contracted before marriage. In 1912 women were permitted to sue or be sued without the necessity of joining the husband as a party to the action. In 1929 wives became responsible for their torts. The 19th Amendment to the United, States Constitution was adopted by New Jersey in 1920. This was two years after England permitted women wlio were 30 years of age and owners of realty to vote. In 1928 England eliminated the property requirement and reduced the age to 21 years. Of interest, but not important to this determination, is that the 19th Amendment was not adopted by the State of Florida until May 13, 1969.

N. J. S. A. 37:2-1 et seq.—the Married Women’s Act— was adopted to relieve women of the disability of coverture. Patusco v. Prince Macaroni, Inc., 50 N. J. 365.

It has taken 1500 years for married women to regain the rights they held under Anglo-Saxon law in the latter part of the 5th Century. At that time a married woman could hold her own property, prosecute legal action, act as a witness, make her own wall and obtain a divorce by mutual consent. Knapper, Constitutional and Legal History of England, 72 (1942).

In recent years the Legislature of New Jersey has established as its public policy that discrimination based on sex or marital status is of concern to the government of this State and is a threat to the rights and privileges of the citizens of New Jersey, and a nuisance to the institutions and the foundation of a free democratic state. N. J. S. A. 10:5-3.

Pursuant to the policy there expressed, the Legislature has enacted and the Governor has signed laws which prohibit discrimination in accommodations, facilities or privileges on account of marital status or sex (N. J. S. A. 10:1-3); respecting the qualifications of jurors (N. J. S. A. 10:1-8); with respect to burial (N. J. S. A. 10:1-9); with respect to employment in the production or distribution of military equipment or supplies (N. J. S. A. 10:1-10); with respect to employment in public works (N. J. S. A. 10:2-1); with respect to general employment and accommodations and privileges (N. J. S. A. 10:5-4); with respect to employment (N. J. S. A. 10:5-12); with respect to public educational institutions (N. J. S. A. 18A:6-6); with respect to State competitive scholarships (N. J. S. A. 18A:71-6).

N. J. S. A. 17:12B-146 prohibits discrimination by mortgagees because of race, creed, color, national origin or ancestors. This section has not been specifically amended to include marital status or sex; however, N. J. S. A. 10:5-12(i) prohibits discrimination by reason of sex or marital status by any bank, banking organization, mortgage company, insurance company or other financial institution or lendor to whom application is made for financial assistance for the purchase or repair of any real property.

Judicial notice must be taken of the efforts of the Womens Liberation movement to end all inequity between the sexes. New Jersey Rules of Evidence, Rule 9(2) (d).

From their public utterances, it must be inferred that this common law rule is to be one of their targets. It is a law which depicts them as weak and dependent with no recognition of their individuality.

Throughout the land is heard the cry, “Give us our rights!” It is being heard from every segment of society: ethnic groups, economic groups, the various age groups, religious groups, regional, area, county and local groups, and currently stridently from the more militant of our women.

The court accepts the oft-stated principle that every right carries with it a corresponding duty. We recognize that under the common law the rights of women have enjoyed a slow but almost uninterrupted expansion. We at the same time recognize the inescapable logic that the expansion of such rights involves, in fact demands, an equivalent expansion of the responsibilities of women who have been given these greater rights.

While there is no question that defendant James Eagan is liable to plaintiff for the medical services rendered to his wife and child by the Englewood Hospital, this court does not believe that today it is plaintiff’s exclusive remedy. This court finds that the action against defendant Maria Pagan is cognizable by it, and that she, as the recipient of the services rendered to her, is liable for the services furnished to her.

This court does not find a similar change in the laws relating to the obligation of a father to support his child, but does note the recent New York case which held a parent’s obligation to financially support his child ends when the child refuses to obey the parent’s orders. 94 N. J. L. J. 677 (July, 1971).

There will, therefore, be a judgment in favor of the plaintiff against defendant Maria Pagan for $250.


author: Conford, P. J. A. D.

text:
    ROGER ZINCK, ELINOR M. ZINCK, AND MARY A. SCHOUDT, PLAINTIFFS-APPELLANTS, v. ROBERT WHELAN, KENNETH J. SCHOUDT, AND PATRICK SCHOUDT, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1972
    Decided August 23, 1972.

      Before Judges Contobd, Matthews and Fritz.

      Mr. H. Hurlburt Tomlin argued the cause for appellants (Messrs. Tomlin and Lewis, attorneys).

      Mr. Ernest F. Piclcnally argued the cause for respondents (Messrs. Schuenemann & Piclcnally, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Plaintiffs appeal from grant of summary judgment in favor of defendants Schoudt. Although the judgment is technically interlocutory and should therefore have been the subject of a motion for leave to appeal, we grant leave to appeal on our own motion nunc pro tunc and reverse. We hold the ease should have gone to trial on the factual issues of negligence, at least as to Patrick T. Sehoudt ("Patrick”), and as to legal (proximate) cause.

On the basis of the pleadings and depositions, and the affidavit of defendant Whelan, together with legitimate inferences therefrom favorable to plaintiffs, a fact-finder could have found as follows.

On the evening of June 24, 1970 Patrick, son of defendant Kenneth J. Sehoudt, and a licensed driver for three or four years, parked his father’s automobile on the street in front of their home at 110 East Court Drive, Blackwood, unlocked and with the key in the ignition. The vehicle was inferably intended to be left there for the night. The area is apparently of a suburban, residential character, about three blocks from the business section of town and from a major highway. In the very early morning of June 25, 1970 defendant Whelan, then not quite 17 years of age, accompanied by three friends, saw the Sehoudt car in the darkness on the street. The doors were unlocked. The boys entered the car and found the key in the ignition, whereupon they drove off, Whelan at the wheel. They parked and locked the car near Whelan’s home. At about 1 p.m. on June 27 the boys, Whelan driving, were traveling south on IT. S. Rt. 611 near Riegelsville, Pa. (about 50 miles from the scene of the theft of the car), when the vehicle crossed the center line into the northbound lane and collided head-on (according to the complaint) with a car traveling north in which plaintiffs were driver and passengers, respectively. All three were severely injured and their car extensively damaged.

By coincidence, plaintiffs Elinor Zinck and Mary Sehoudt are, respectively, sister and mother of defendant Kenneth Sehoudt.

In granting summary judgment for defendants the Law Division judge felt himself bound by the holding of this court in Saracco v. Lyttle, 11 N. J. Super. 254 (1951). In that case defendant parked his car on the street, leaving the ignition key in it while visiting a friend. The car was then taken without permission by a son of the host, and several blocks distant it collided with plaintiff’s vehicle. At the end of the trial the court directed a verdict in favor of defendant. In affirming, this court quoted the general rule “that a person who leaves an automobile in a public street unattended is under a duty to exercise such care in doing so as a person of ordinary prudence would exercise in the circumstances; and failure to exercise such care whereby the machine by force of gravity, or by some other cause reasonably to be anticipated or guarded against, gets under way and inflicts injury, renders such person liable therefor in an action for damages” (emphasis added), Barbanes v. Brown, 110 N. J. L. 6, 7 (Sup. Ct. 1932). The court then said:

No claim was made that Lyttle violated any provision of a statute or ordinance. See Note, 158 A. L. R. 1374.
Under the facts of the present case, it was not reasonably to be anticipated that an intermeddler would not only drive the car away but also would later negligently operate it. The leaving of the automobile unlocked afforded an opportunity for the unlawful taking by Padula, but this was merely a circumstance and not the proximate cause of the collision. Responsibility for an accident cannot attach to one unless his act or failure to act was the proximate cause of the injury. The proximate cause of the collision was the unskillful handling of the car by Padula. The negligence of the inter-meddler, in driving into the vehicle of plaintiff, was an intervening efficient cause interrupting the chain of causation between defendant Lyttle’s act in leaving his key in the ignition switch (whether or not such act in itself constitutes negligence) and the damage to the plaintiff. [N. J. Super. at 257]

Cf. Reti v. Vaniska, Inc., 14 N. J. Super. 94 (App. Div. 1951); Kinsley v. Von Atzingen, 20 N. J. Super. 378 (App. Div. 1952); Della Cerra v. Burns, 69 N. J. Super. 110, 121 (App. Div. 1961).

The principles stated in Saracco were then and still remain the view of a substantial majority of the jurisdictions in this ■country that have passed on the basic point, whether or not there was a statute or ordinance (frequently found) prohibiting the leaving of an unlocked car on a public way with key in the ignition or with an open ignition switch. Most of them find as a matter of law no proximate cause; some, no duty of the driver to the injured plaintiff, and therefore no negjjgenee. In some, both concepts coalesce to preclude liability. A fair sampling of the out-of-state decisions against recovery in this fact-pattern follows:

Galbraith v. Levin, 323 Mass. 255, 81 N. E. 2d 560 (Sup. Jud. Ct. 1948) (reg.); Richards v. Stanley, 43 Cal. 2d 60, 271 P. 2d 23 (Sup. Ct. 1954) (no reg.); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A. 2d 336 (Sup. Ct. 1966) (no reg.) ; Midkiff v. Watkins, 52 So. 2d 573 (La. Ct. App. 1951) (no reg.); Bennett v. Arctic Insulation, 253 F. 2d 652, 17 Alaska 537 (9 Cir. 1958) (applying Alaska law, no reg.); Lingefelt v. Hanner, 125 So. 2d 325 (Fla. Ct. App. 1960) (reg.); Ross v. Nutt, 177 Ohio St. 113, 203 N. E. 2d 118 (Sup. Ct. 1964) (reg.); Liberto v. Holfeldt, 221 Md. 62, 155 A. 2d 698 (Ct. App. 1959) (reg.), but see note below as to Khoyan v. Turner, 255 Md. 144, 257 A. 2d 219 (Ct. App. 1969), apparently contra; Hersh v. Miller, 169 Neb. 517, 99 N. W. 2d 878 (Sup. Ct. 1959) (reg.); Bouldin v. Sategna, 71 N. M. 329, 378 P. 2d 370 (Sup. Ct. 1963) (reg.); Clements v. Tashjoin, 92 R. I. 308, 168 A. 2d 472 (Sup. Ct. 1961) (reg.); see Meihost v. Meihost, 29 Wis. 2d 537, 139 N. W. 2d 116 (Sup. Ct. 1966) (dictum; key left in box in glove compartment) (reg.).

Prior to the adoption of a regulatory statute the New York Court of Appeals affirmed a short, conclusional opinion of the Appellate Division denying liability for absence of proximate cause. Wilson v. Harrington, 269 App. Div. 891, 56 N. Y. S. 2d 157 (1945), aff'd 295 N. Y. 667, 65 N. E. 2d 101 (1946). After adoption of a regulatory statute, however, the Appellate Division ruled the issues of negligence and proximate cause were for a jury, the statutory purpose having been both to deter theft and to protect the life and property of others on the highway. Guaspari v. Gorsky, 36 App. Div. 2d 225, 319 N. Y. S. 2d 708 (1971), app. dism. 29 N. Y. 2d 892, 328 N. Y. S. 2d 679 (Ct. App. 1972).

In Sailor v. Ohlde, 71 Wash. 2d 646, 430 P. 2d 591 (Sup. Ct. 1967), where the truck stolen had been parked upon private warehouse premises, the court, although holding against liability, distinguished the ease where the vehicle is left on a public street, saying “there is a significant difference” between the two situations (at 593).

Most of the cases denying liability are fairly conclusions! in asserting that the theft of the car or the negligent operation by the thief, or both, are not foreseeable, thereby precluding postulates of negligence and proximate cause. Richards v. Stanley, supra, gives another reason for its holding against any duty to the injured person—that the risk of negligent operation by a thief is “'less than the risk [defendant] might intentionally have created without negligence by entrusting [his] car to another” (271 P. 2d, at 27); for example, to one under 25, where the statistics indicate higher than normal susceptibility to accidents. We think the analogy was not apt even in 1954, when Richards was decided, and that it is decidedly inappropriate today in view of the statistics set forth below concerning the very high incidence of accidents involving thief-driven vehicles. The judicial value-judgment involved is perhaps more candidly stated in Meihost v. Meihosi, supra, where the court simply said (139 N. W. 2d, at 121) : “Under most circumstances, allowance of recovery would place too unreasonable a burden upon the owners of motor vehicles.”

The California no-duty rule of Richards v. Stanley, supra, was modified in Hergenrether v. East, 61 Cal. 2d 440, 39 Cal. Rptr. 4, 393 P. 2d 164 (Sup. Ct. 1964), where “special circumstances” were found to create a jury question in respect of both duty and proximate cause. The defendant parked a truck leaving a key in the ignition on a “skid-row” type street from which an inebriate took the car and crashed into plaintiff’s vehicle not long after. There, as distinguished from the situation in Richards v. Stanley, the court thought defendant had reason to expect a thief would be an incompetent driver.

A substantial and growing number of jurisdictions, though still a minority, have held, in the ordinary fact ease of theft and accident within a reasonable time thereafter, that there are at least jury questions as to duty, negligence and proximate cause, particularly where there is a statute or ordinance prohibiting the leaving of the key in the ignition of an unattended car in a public place. Davis v. Thornton, 384 Mich. 138, 180 N. W. 2d 11 (Sup. Ct. 1970) (reg.), (in effect overruling the no-liability decision of Corinti v. Wittlopp, 355 Mich. 170, 93 N. W. 2d 906 (Sup. Ct. 1959)); Ney v. Yellow Cab Co., 2 Ill. 2d 14, 117 N. E. 2d 14 (Sup. Ct. 1954) (reg.); Ross v. Hartman, 78 U. S. App. D. C. 217, 139 F. 2d 14 (1943) (reg.); Myers v. Gaither, 232 A. 2d 577 (D. C. Ct. App. 1967), aff’d sub nom. Gaither v. Myers, 131 U. S. App. D. C. 216, 404 F. 2d 216 (1968) (reg); Justus v. Wood, 209 Tenn. 55, 348 S. W. 2d 332 (Sup. Ct. 1961), 2d reh. den. 349 S. W. 2d 793 (Sup. Ct. 1961) (reg.); Guaspari v. Gorsky, supra (reg.); Alberone v. King, 26 Conn. Super. 98, 213 A. 2d 534 (Super. Ct. 1965) (no reg.); Mellish v. Cooney, 23 Conn. Sup. 350, 183 A. 2d 753 (Cir. Ct. 1962) (no reg.); but see, contra, Consiglio v. Ahern, 5 Conn. Cir. 304, 251 A. 2d 92 (Cir. Ct. A. D. 1968) (no reg.; decision by a court of lower rank than that of Alberone v. King, supra); Mezyk v. National Repossessions, Inc., 241 Ore. 333, 405 P. 2d 840 (Sup. Ct. 1965) (no reg.) (an a fortiori case since ear was taken from used car lot); accord: Schaff v. R. W. Claxton, Inc., 79 U. S. App. D. C. 207, 144 F 2d 532 (1944); contra: Kalberg v. Anderson Bros. Motor Co., 251 Minn. 458, 88 N. W. 2d 197 (Sup. Ct. 1958); Khoyan v. Turner, 255 Md. 144, 257 A. 2d 219 (Ct. App. 1969) (reg.) semble (apparently contrary to Liberto v. Holfeldt, supra; cf. Tyn dall v. United States, 295 F. Supp. 448 (E. D. N. C. 1969)).

In its recent reappraisal of the law on this subject in Davis v. Thornton, supra, 180 N. W. 2d 11, the Michigan court dealt with a ease of several minors taking a car on the street, keys in ignition, and becoming involved in an accident with plaintiffs the same day. The court quoted the statistics cited in Gaither v. Myers, supra, 404 F. 2d 216 at 222-223, and see infra, from a study made in 1968 by the National Auto Theft Prevention Campaign concerning the substantial incidence of stolen vehicles involved in accidents and the high correlation between thefts and keys left in ignitions. It concluded that even as a matter of common law, independent of the Detroit ordinance there involved, the issues of negligence and proximate cause were for resolution by a jury. 180 N. W. 2d at 14, fn. 8 at 16-17 (“In our view, the ordinance in this case is an affirmation of the common law”). Standard principles of tort liability for creating unreasonably increased hazards of harm to others were cited in support of the result reached, passim.

In the Gaither case, supra, where the court had a choice of law problem as between the District of Columbia, where the car was parked and the theft occurred, and where violation of the statute is regarded as the proximate cause of the injury to the third person ensuing from the negligence of the thief, and the State of Maryland, where the accident took place, but whose law (as of that date) regarded the action of the thief as an intervening event breaking the chain of causation, the court applied the law of the former as furthering an important policy interest of the District. The court, whose bench included then Judge Burger (now Chief Justice), said:

The strength of the District’s policy of “discouraging the hazardous conduct which the ordinance forbids” has not diminished during the intervening 25 years. [Since Ross v. Hartman, supra.] On the contrary we have never had greater need for doctrines helping to deter injuries and crimes traceable in significant measure to keys left in unattended ears. [404 F. 2d at 222]

The court then alluded to the National Auto Theft Prevention Campaign launched by the Attorney General of the United States and 19 responsible organizations in March 1967 and referred to some of its campaign findings, as well as those by a survey of the U. S. Department of Justice, Criminal Division. This data indicated that of the over one million cars stolen nationally in 1966 24% were involved in accidents; that the accident rate for stolen cars is estimated to be approximately 200 times the normal accident rate, and that of the total cars stolen the key had been left in the car in 42.3% of the cases.

The District of Columbia Court of Appeals, whose decision in Myers was affirmed by the United States Circuit Court of Appeals, had said:

Tbe high incidence of auto thefts in the District of Columbia, the constant warnings to the public to remove keys to prevent such thefts, the frequency of high speed chases involving stolen motor vehicles, all persuade us that the District has an overriding interest in preventing such occurrences and in encouraging owners to exercise greater caution in parking their automobiles. [232 A. 2d 584]

The wisdom in this area which presently available statistics have imparted (or should have) to the general public was manifest early to the Circuit Court of Appeals of the District of Columbia in the leading Ross case, supra, 139 F. 2d 14. The trial court had dismissed the action on the basis of a 1916 precedent. The facts were in the classic pattern we are considering. The appellate court said (at 15, 16), “Both negligence and causation are too clear in this case for submission to a jury.” Further:

Everyone knows that children and thieves frequently cause harm by tampering with unlocked cars. The danger that they will do so on a particular occasion may be slight or great. In the absence of an ordinance, therefore, leaving a car unlocked might not be negligent in some circumstances, although in other circumstances it might be both negligent and a legal or “proximate” cause of a resulting accident.

But, said the court, where there was a violation (as there) of an ordinance designed to promote safety, a more affirmative approach was required (at 15, 16).

The evident purpose of requiring motor vehicles to be locked is not to prevent theft for the sake of owners or the police, but to promote the safety of the public in the streets. * * * This negligence created the hazard and thereby brought about the harm which the ordinance was intended to prevent. It was therefore a legal or “proximate” cause of the harm.
There are practical as well as theoretical reasons for not excusing [defendant]. The rule we are adopting tends to make the streets safer by discouraging the hazardous conduct which the ordinance forbids. It puts the burden of the risk, as far as may be, upon those who create it. * * * Since appellee was responsible for the risk, it is fairer to hold him resjDonsible for the harm than to deny a remedy to the innocent victim.

The foregoing logic (without accepting the negligence per se approach of the District) seems unassailable.

In the Illinois case of Ney v. Yellow Cab Co., supra, 117 N. E. 2d 74, the Supreme Court settled the preexisting difference of views on the subject in the lower appellate courts. In holding the issues of negligence and proximate cause were for the jury, the court adverted to the flexibility of the common law to meet newly arising exigencies and social usages (at 79), and said, ibid.

The incidence of automobile thefts and damages and injuries resulting from such larcenous escapades has accordingly increased. * * * Incidents of serious havoc caused by runaway thieves or irresponsible juveniles in stolen or “borrowed” motor vehicles frequently shock the readers of the daily press.

The expression of one other court espousing the minority view will round out the reasoned rationale typically invoked by that line of authority. In Justus v. Wood, supra, 348 S. W. 2d 332, the Tennessee court said:

Considering the nature of the acts and the circumstances surrounding the entire matter, it seems quite clear that reasonable minds might differ as to whether this intervening force of the negligent thief was within the range of reasonable anticipation of [defendant] [at 335]

and further:

It is common knowledge that a person possessed of the characteristics which would cause him to thus steal an automobile is a person who is irresponsible and totally devoid of regard for the rights and safety of others who might he using the street at the same time that he, the thief, was operating it in heavy traffic, [at 338]

In denying a second petition for rehearing the court struck to the core of the intervening-cause approach of the majority rule, saying:

To hold, as is the contention of the petitioner, that the injuries herein were due solely to the negligent operation, by an unauthorized person, of this automobile appears to beg the question, * * * [it] assumes that the misappropriation of the car was unforeseeable. The statute, itself, is based in part on the likelihood that cars left unattended in violation of this statute will be taken, and implies a degree of foreseeability of that result. * * *
[The statute] is protection to life and property which might otherwise be affected by improper movement of the automobile. [349 S. W. 2d at 793-794]

This court itself began to entertain reservations concerning the Saracco rule when it stated, in the 1961 case of Della Cerra v. Burns, supra:

* * * We wish to note, specifically, that we are expressing no opinion concerning the present scope, applicability or continued justification of the holding in Saracco v. Lyttle, 11 N. J. Super. 254, 257 (App. Div. 1951), that if one were regarded as negligent in leaving an unlocked, unattended car on a street with key available, liability would not extend to the consequences of the negligent use of the car by a thief, that being either an “intervening efficient cause” or a risk “not reasonably to be anticipated” by the owner. Compare Ney v. Yellow Cab Company, 2 Ill. 2d 74, 117 N. E. 2d 74 (Sup. Ct. 1954), 51 A. L. R. 2d 624, Ross v. Hartman, 78 U. S. App. D. C. 217, 139 F. 2d 14, 158 A. L. R. 1370 (App. D. C. 1943), certiorari denied 321 U. S. 790, 64 S. Ct. 790, 88 L. Ed. 1080 (1944). Also contrast the philosophy of Rappaport v. Nichols, 31 N. J. 188, 203 (1959). [69 N. J. Super. at 121]

Assuming, arguendo, as a number of the foregoing authorities have averred, that leaving a key in the ignition of an unlocked car in a public place could be found by a reasonable jury to be negligence, whether or not a prohibitory regulation were involved, the hypothesis of a jury question on the issue of proximate cause as to the ensuing accident and injury has the expressed approbation of the Supreme Court of this State. See the approving syntheses in Rappaport v. Nichols, 31 N. J. 188, 199, 200 (1959), of the minority-rule cases of Ney v. Yellow Cab Co. and Ross v. Hartman, both supra, particularly in respect of the proposition “that if the intervention of the theft might reasonably have been foreseen it would not break the chain of causation” (at 200), and that since the defendant had created the risk it was “fairer to hold him responsible for the harm than to deny a remedy to the innocent victim” {ibid.). And see Restatement, Torts 2d, §§ 447, 448 (1964), the latter section impelling the conclusion that foreseeability of the asserted intervening intentional tort or crime need not be anticipated by the actor as a literally probable consequence of his action (i. e., more likely to occur than not in the particular instance), but merely that the actor “realized or should have realized the lilcelihood” that his action "might” create an opportunity for the third person to commit the tort or crime. As for the eventuation of the accident, the criterion of foreseeability is whether the actor should have realized that a thief “might so act” or whether a reasonable man, knowing the situation at the time of the thief’s negligence, “would not regard it as highly extraordinary” that the accident had taken place. § 441.

“The fact that there were also intervening causes which were foreseeable or were normal incidents of the risk created would not relieve the tortfeasor of liability.” Rappaport v. Nichols, supra, 31 N. J. at 203. Foreseeability can in appropriate contexts extend to criminal activity by third persons. See Genovay v. Fox, 50 N. J. Super. 538, 550-551 (App. Div. 1958), rev’d on other grounds, 29 N. J. 436 (1959). See also 2 Harper and James, Law of Torts (1956), § 20.5 at 1141 et seq.

A study of the authorities cited above makes it evident that basically the key to duty, negligence and proximate cause in the fact-pattern under review is the foreseeability vel non to a reasonable man of an unreasonably enhanced hazard, when a motor vehicle is left unlocked in a public place with key in the ignition, of both the theft or misappropriation of the vehicle and an ensuing mishandling of it by the taker with death, injury or destruction of property of others lawfully using the highways as the result. If there is such foreseeability, then, on principle, particularly in the light of the minimal social utility of the causative conduct of the possessor of the car, a duty arises toward the members of the public using the highways, its breach is negligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find in the generality of the cases. See, generally, Prosser, Torts (3d ed. 1964), at 148, 149, 151, 173, 311 et seq.

It is implicit in the foregoing statement that the result should not necessarily depend on whether or not there is a prohibitory regulation. Some of the courts which have permitted recovery where there was a regulation have indicated that the same result would obtain without it on common-law principles; e. g., Ross v. Hartman and Davis v. Thornton, supra. A clear majority of the cases involving regulations, even where recovery was disallowed because of absence of proximate cause, have conceded that the purpose of such regulations, at least in part, was to reduce the hazard of accidents caused by the takers of the vehicle. This is certainly the purpose of the Uniform Vehicle Code, § 11—1101 of which prohibits, among other things, leaving an unattended car in a public place with key in the ignition. That section or its equivalent is law in 23 states. Uniform Vehicle Code, Annot. 1967, at 560-562. The purpose of the Code is stated in Uniform Vehicle Code and Model Traffic Ordinance (rev. 1968), Poreword p. VII (“* * * that no legitimate user of the highway, whether in a vehicle or on foot, shall be killed, injured or frustrated in such use by the improper behavior of others”).

Common-law courts having evolved the law of negligence, they are obviously free to and should mold its application as developing experience and sound judgment counsel in the broad public interest and in the interests of justice. The fact that New Jersey has no pertinent legislation in the field under consideration is no bar against our courts performing their traditional common-law function in this regard. See Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29, 42 (1958). In undertaking to do so, however, courts should inform themselves on the basis of such reliable empirical data as are available. Such data were not available in 1951 when we decided Saracco v. Lyttle, supra. However, the data now at hand, taken in conjunction with social trends which are commonly known, indicate that the hazard of car theft is rapidly growing and that both its relationship to keys being left in the ignitions of unlocked vehicles and the extraordinary correlation between thefts and disastrous incidental accidents are far clearer now than in the days when the doctrine of no-proximate-cause in this area was getting its foothold in judicial thought.

Some of the data is mentioned in the discussion above of the recent District of Columbia Circuit Court of Appeals opinion in Gaither v. Myers, supra, 404 F. 2d at 222, particularly the allusion therein to the estimated accident rate for stolen ears being 200 times the normal accident rate. But there is much other concordant, convincing data from sources supplied us by appellants which we deem reliable.

In 1950 the national rate of stolen vehicles per 100,000 population was about 100. President’s Commission on Law Enforcement and Administration of Justice, Task Force Be-port: Crime and Its Impact—An Assessment, at 27 (1967). In 1970 the rate was 453.5, an increase of over 350%. United Crime Deports: Crime in the United States (1970) (promulgated by F. B. I.) (“Uniform Crime Reports”). The 1964 rate was 242. Since 1960 the rate increased 149.7%. That increase has been four times greater than both the percentage increase in automobile registrations generally and that of persons aged 15-24 years. 1970 Uniform Crime Reports, at 28.

As of 1964 50% of the thefts involved minors under 18. Uniform Crime Reports, at 19. 42% of the cars stolen had the keys left in the ignition or the ignition unlocked. Id. at 20. “Most auto thefts, two-thirds, occur at night, and over one-half of the thefts are from private residences, apartments and/or from streets in residential areas.” Id. at 20.

In 1966 the Department of Justice conducted a survey of this subject. See Hearings on II. E. 15215 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Congress, 2d Session, at 31-39 (1968) (“Justice Department Survey”). This was based upon questionnaires returned by 1,659 convicted car thieves involved in 4,077 offenses. The purvey showed that 59% of the cars stolen had the keys left in the ignition or the switch unlocked. Justice Department Survey, at 32. 18.2% of the cars taken were subsequently involved in accidents. Id. at 33.

Since 1967 the Attorney General of New Jersey has promulgated an annual statistical crime summary. Uniform Crime Reports of New Jersey. The 1969 report (at 57) indicates a rise in auto theft of 25% from 1967 to 1969. 48% of the thefts were by persons under 18. Ilid. Over 45% of the thefts were from the streets of residential areas and more than 70% occurred at night. Id. at 59. Inquiries of owners of cars stolen indicated that 34% professed to be unable to inform the police as to whether the key was in the ignition or whether the car was locked; but of those who purported to remember, the key was left in the ignition or elsewhere in the vehicle in 17% of the cases. Id. at 59. In any event, the same report (at 59) observes:

The degree of negligence of motor vehicle operator in most cases dictates whether or not the theft will occur. The portion of thefts attributed to the professional car thief is relatively small when compared to that portion perpetrated by the non-professional whose actions depend chiefly on the opportunities afforded by careless operators who fail to take normal safeguards when leaving a motor vehicle unattended.

We think the reasonably prudent motor car operator can today justly be held to an awareness of the gravamen of the foregoing data, if not of the specific figures, which may vary from time to time, locality to locality or from one study to another. As noted above, on March 1, 1967 the United States Attorney General publicly announced the start of the Justice Department’s National Auto Theft Prevention Campaign, a drive against the very problem here of concern. The campaign has continued since, abetted by wide media and other publicity. Automobile owners are continuously warned to remove the key and lock the vehicle when parking. By virtue of Motor Vehicle Safety Standard 114 (33 Fed. Reg. 6471 (1968)), as announced by the Federal Highway Administrator (effective January 1, 1970), new cars must contain separate systems to lock the engine and steering mechanism so as to prevent the operation of either without a key. There is also mandated the implementation of warning devices to signal the presence of the key in the ignition to an operator leaving the vehicle. All of these well-publicized indicia of the danger involved reinforce the common-sense awareness thereof which some of the minority jurisdictions felt justly imputable to a reasonably prudent driver years ago.

The fact that 23 state legislatures and countless municipal governing bodies have for a long time deemed it necessary as a matter of public safety to prohibit leaving ignition keys in unattended unlocked cars in public places further attests to the wide-spread general recognition of the hazard in question and its potential for great harm to innocent users of the highways. The New Jersey scene is not exempt from these conditions notwithstanding our Legislature has not acted on the subject. There being no decision of the New Jersey Supreme Court on the subject, we are free to, and do herewith hold, that Saracco v. Lyttle, supra, does not accord with present-day realitic-s, subserve existing social needs or accomplish essential justice. It is overruled. A “cause reasonably to be anticipated or guarded against,” Barbanes v. Brown, supra, 110 N. J. L. at 7, may be found by a jury to include the theft of the car in such a situation as here and the negligent injury of others on the highway by the thief.

Nothing stated hereinabove is intended to imply that a fact-finder could not reasonably return a verdict for defendants in the present case, or that the evidence in some comparable situations might not possibly justify even a judgment for defendant as a matter of law. Findings as to either negligence or proximate cause, whether by fact-finder or by the court as a matter of law, must depend on the entire circumstantial spectrum revealed by the proofs in a particular case. See, e. g., the reference in Alberone v. King, supra, to such relevant circumstances as the position and location of the parked vehicle, access thereto, operational condition of vehicle, its proximity to surveillance, the time of day or night taken and the length of time elapsing from the taking to the accident; see also, Ross v. Hartman, supra, 139 F. 2d at 15.

We do not believe that the instant circumstances of a lapse of %y2 days between theft and accident and the 50-mile distance between the points of theft and accident dictate judgment for defendant as a matter of law whether on the grounds of remoteness or otherwise. And this notwithstanding the fact that the great preponderance of the reported cases allowing recovery involves same-day and relatively nearby accidents. See the apparently contrary decision in Casey v. Corson and Gruman Co., 95 U. S. App. D. C. 178, 221 F. 2d 51 (D. C. Cir 1955), and the later implicit criticism of that case by the same court in Gaither v Myer, supra, 404 F. 2d at 221 “* * * [where] the mishap occurs substantially later and distant, the hiatus may tend to negative proximate cause.” (Emphasis added).

So here, a jury might give such circumstances sufficient weight to find absence of proximate cause because of remoteness ; but an equally reasonable jury, in our view, might conclude that the likely potential for disastrous driving by the defendant juvenile incident to his misconduct and inferential inexperience, guilt-consciousness or carefreeness was not fully spent by either the time or distance differential involved. Motor vehicles can be driven great distances on today’s highways in a short time.

As to the question of Patrick’s negligence in leaving the key in the ignition, a fact issue for the jury was clearly presented. The cover of darkness and absence of surveillance was an inviling setting for the taking. The car was inferably left in the street for the night. And the statistical data cited above indicate that thefts from residential streets, or after nightfall, are of relatively high incidence.

Judgment reversed.

      We note the incidence or absence of a prohibitory statute or ordinance by “(reg.)” or “(no reg.)” in the citations of the cases.

      The decisions are collected in 51 A. L. R. 2d 633 (1957), as supplemented by A. L. R. 2d Later Case Service for 49-55 A. L. R. 2d, at 216 (1967), and annual pocket supplement. See also Von Wald, “Failure to Remove Ignition Key — the Key to Liability,” 14 S. D. L. Rev. 116 (1969); Peck, “An Exercise Based Upon Empirical Data,” etc. 1969 Wis. L. Rev. 909; Note: 34 Ia. L. Rev. 376 (1949)).

      But see Khoyan v. Turner, supra, 257 A. 2d 219.

      Even if that datum, is discounted substantially for possible defects in the statistical method employed, or in application to New Jersey conditions, its cogency in relation to our problems remains impressive.

      This low rate as compared with the 59% figure reflected by the Justice Department Survey of 1966, supra, may well be explained by the reluctance of owners to admit leaving keys in ignition, as contrasted with the probable candor of thieves already convicted — the source of the Justice Department Survey figure. See Peck, op cit., supra, 1969 Wis. L. Rev. at 916.