author: Matthews, J. A. D. Goldmann, P. J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. PAUL CLEMENTE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 10, 1969
    Decided December 31, 1969.

      Before Judges Goldman», Lewis and Matthews.

      Mr. Aibel Goldstein, Assistant Prosecutor, argued the cause for appellant (Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney; Mr. Gregory J. Castaño, Assistant Prosecutor, on the brief).

      Mr. Gerald Miller argued the cause for respondent (Messrs. Miller, Hochman, Meyerson & Miller, attorneys).
   The opinion of the court was delivered by

Matthews, J. A. D.

This is an appeal, pursuant to leave granted, from an order of the Hudson County Court suppressing certain evidence (91 decks of heroin) seized, pursuant to a search warrant, from the automobile and home of the defendant.

The search was made under a warrant issued by a judge of the Jersey City Municipal Court upon the affidavit of detective Potter of the Jersey City Police Department. The affidavit set forth detailed observations that were made by Potter, and other members of the Jersey City Police Narcotics Squad, during a ten-day surveillance, as well as' information that had been received from a “reliable source.” The affidavit contained no dates as to when the surveillance had been conducted, nor did it contain the date when the information from the supposedly reliable source had been received by the police. The affidavit did aver, in its opening paragraph, that narcotics are being stored in both the premises and the motor vehicle described particularly therein.

At the hearing on the motion to suppress, the State produced detective Potter, who had procured the warrant, and who proceeded to testify as to the circumstances surrounding his application for it. Tlie pertinent testimony was as follows:

Q. On that day when you made that application and submitted that affidavit, was there anything else submitted to the magistrate?

A. Just the usual, lie asked how long the surveillance had been on. Q. Did you give him any testimony under oatli?

A. Yes, sir.

Q. Were you sworn in?

A. Yes.

Q. By whom were you sworn in?

A. Judge Lemken.

Q. Did he ask you questions?

A. Yes.

Q. And did you give the answers?

A. Yes.

Q. What specifically did he ask you about the surveillance?

A. “How long have you been watching the place?” and, you know, then I would tell him.

Q. Generally, you would do that. In this case do you have a recollection if you did?

A. Yes, I do.

Q. Did lie ask you about the surveillance?

A. Yes.

Q. Did you tell him when it had been?

A. Yes.

Q. AVhat did you tell him?

A. I told him the surveillance was continuing while I was getting the warrant made up. Other members of the Squad were on the surveillance.

Q. Did you tell him when the surveillance had begun?

A. Yes. I put “ten days”.

Q. It just says for a period of ten days?

A. That’s just prior to the date of obtaining.

Q. Did you tell that to the Judge under oath?

A. Yes.

MR. MILLER: Objection. Leading.

BY MR, CASTAÑO:

Q. In connection with that ten day period, did you tell the Judge anything?

A. I told him, he asked me how long we were on the surveillance and I told him it was still on while I was getting the application.

Q. You told him that under oath?

A. Yes, I did.

The municipal judge who issued the warrant was called as a defense witness. He testified that he could not recall the specific application then before the court because of the large number of applications he had considered in the intervening time.

The County Court Judge in granting the motion to suppress stated:

I have no reason to disbelieve what Officer Potter told me, but I find no eases which permit an affidavit for a search warrant to be supplemented by the testimony of the officer applying for it. The cases indicate that either a transcript of the testimony given in addition to the affidavit or the testimony of the Magistrate are the methods by which that testimony can be brought before a reviewing court. Therefore, I don’t believe the testimony of Detective Potter was competent and don’t find it necessary to characterize as to credibility.

Then, retying on Rosencranz v. United States, 356 F. 2d 310 (1st Cir. 1966), he held that the failure of the affidavit to contain an express statement as to the time when the surveillance was conducted was a fatal defect.

Legal precedents are ol dubious value when a court is called upon to determine whether a search warrant has been issued on probable cause. See State v. Kasabucki, 52 N. J. 110, 116-117 (1968). This observation is amply demonstrated by an examination of the trial judge’s reasoning in determining that the evidence obtained pursuant to the warrant issued here should be suppressed. He noted that in Rosencranz the same deficiency (lack of a date as to the ten-day surveillance) was found to be a fatal defect. He then observed that Rosencranz followed a long series of at least a dozen cited cases in the federal system on all levels, including both the District and Supreme Court.

In Rosencranz, the court had under consideration a search based upon an affidavit of an extremely sparse nature. After reviewing several decisions in which the lack of a reference to the time at which surveillance activities which had taken place had not been referred to in affidavits used to procure warrants, the court said:

We conclude that a combination of undated, conclusory information from an anonymous source and an undated general allegation of personal observation by the affiant, with no other reasonably specific clues to the time of their happening, is inadequate. [Emphasis added]

The determination of whether or not there was probable cause for a warrant to issue must depend on the particular situation existing as it is disclosed either by the testimony or by the record. Barely are two eases factually identical. Numerous decisions have made it perfectly plain that no mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause. As was stated in State v. Kasabucki, above, “each case depends upon a sensitive appraisal of the circumstances shown to the issuing judge.” 52 N. J., at 117-118.

The affidavit Sled in support of the warrant under review closely disclosed the activities of the investigating officers, including the affiant, with respect to the activities of the defendant. There is reference to a ten-day period of investigation which included specific instances of conduct unquestionably disclosing to the officers that traffic in narcotics was being conducted. Further, in support of the observations made by the officers, the affidavit also included the fact that information had been given by a reliable informant as to the narcotics activities of this defendant. In support of Potter’s conclusion as to the reliability of the informant, the affidavit included names of individuals who had been apprehended and convicted for narcotics violations on the strength of this same informant’s information. One of the areas sought to be searched was a motor vehicle. Based on these facts, the affiant concluded that narcotics “are being stored” on the premises, which were specifically described, and in the motor vehicle, also specifically described. Taking all of these factors together, we are satisfied that there was sufficient contained in the affidavit to satisfy the issuing magistrate that the violations of'the law described in the affidavit were currently occurring, and that the investigative activities of the investigating officers were likewise reasonably current.

The investigating officers involved here may- well have had probable cause to believe that a crime was being committed in their presence during their investigation, and thus have arrested defendant and searched his motor vehicle without warrant. Instead, apparently mindful of the teachings of the courts with respect to the rights of citizens granted under the Fourth Amendment to the United States Constitution, they applied to the independent judicial mind, here a municipal judge, for a warrant. To characterize them now as “blundering constables” because of a technical defect in the supporting affidavit presented, can only serve to discourage them in the execution of their official activities. in the future. As was stated by Mr. Justice Goldberg in United States v. Ventresca, 380 U. S. 102, 108-109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965) :

* * * Ii the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
sjs ^ ^ £
Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

See also: United States v. Ramirez, 279 F.2d 712 (2 Cir). cert. den 364 U. S. 850, 81 S. Ct. 95, 5 L. Ed. 2d 74 (1960); State v. Zuzulock, 39 N. J. 276 (1963).

While we reverse the order of suppression for the reasons just expressed, we deem it necessary to make some observations about the use of supportive testimony at the hearing, in view of the apparent confusion of the trial judge as to the propriety of its use.

The Fourth Amendment of the Constitution of the United States and Article I, Paragraph 7 of the Constitution of our State require that probable cause for a warrant be “supported by oath or affirmation.” In accordance with these injunctions, our rule R. 3 :5-3 (formerly R. R. 3:2A-3) requires that “an applicant for a search warrant shall appear personally before the judge who must take his affidavit or testimony before issuing the warrant.” In the former rule, the word “deposition” was used in place of “testimony,” but the meaning was the same. Our rule differs from federal Eule 41 (c), which requires that “a warrant shall issue only on affidavit sworn to before the judge, * * Under our rule, therefore, it is proper for an issuing judge, after having sworn the applicant for a search warrant, to interrogate the applicant as to the contents of the affidavit presented, and any additional facts which are known to the applicant at that time. The information so elicited can, of course, be considered by tbe issuing judge in weighing whether probable cause exists. Concededly, better practice would dictate recordation of any supportive information.

If on subsequent proceedings to suppress the issue is one of probable cause, all of the factors before the issuing judge at the time he issued the search warrant must be before the reviewing judge, either in the form of the affidavit submitted, a transcript of any testimony given before the judge, or, if no transcript was taken, testimony based on notes made by the magistrate or on the recollection of either or both the applicant and the issuing judge. There is nothing in our cases requiring that the testimony of the issuing judge be taken at such a proceeding. The authorities relied on by respondent to this appeal, Stale v. Moriarty, 39 N. J. 502 (1963), and State v. Calabro, 81 N. J. Super. 422 (App. Div. 1963), do not hold that the testimony of the issuing judge is mandatory in such a situation. Readings of both of these opinions indicate that, under the circumstances existing in each case, the appellate court concerned directed that the testimony of the issuing judge involved be taken. We do not read these opinions so as to require such a procedure.

Of course, whether the testimony of the issuing judge will be taken at a hearing on a motion to suppress is a decision to be made by the State, or, conceivably by the defendant— as was done here—at the time of the motion. The mere lack of the corroborative testimony of the issuing judge does not, however, render testimony by the applicant incompetent.

The order of suppression is reversed.

Goldmann, P. J. A. D.

(concurring). My concurrence

in the reversal is based solely on Detective Potter’s affidavit, without regard to his uncorroborated testimony at the hearing on the motion to suppress. In testing the adequacy of such an affidavit our approach must be a common-sense one, nontechnical, ungrudging and positive. United States v. Ventresca, 380 U. S. 103, 108-109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). Thus, “when the adequacy of the facts offered to show probable cause is challenged after a search made pursuant to a warrant, and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search.” State v. Kasabucki, 52 N. J. 110, 116 (1968), citing Ventresca. Viewed in the light of those cases, I, like my colleagues, find the affidavit sufficient to support the search warrant which issued.

Rosencranz v. United States, 356 F. 2d 310 (1 Cir. 1966), on which defendant relies, is not persuasive. As the main opinion points out, the affidavit there involved was unusually meagre. The only grounds recited for the issuance of a search warrant were: “Information given anonymously to the Affiant that the aforementioned materials [mash, distillation apparatus and nontax-paid alcohol] are being held on said premises” and “The detection of a strong odor of mash outside the premises by the Affiant.” Although recognizing the holding in Ventresca—a case in which the First Circuit (324 F. 2d 864 (1963)) had been reversed—the court held the affidavit invalid because it failed to allege the time when the affiant received information from the anonymous informant or the time when he detected the odor of mash outside the premises. In footnote 5 of the opinion (356 F. 2d, at 315) the court summarized numerous authorities—all but two predated Ventresca—holding that such a defect was fatal. And see Annotation, “Search warrant: sufficiency of showing as to time of occurrence of facts relied on,” 100 A. L. R. 2d 525 (1965), and particularly 533.

In my view the Rosencranz court failed to give full value to Ventresca. Contrast Rider v. United States, 355 F. 2d 192 (5 Cir. 1966), and United States v. Slapo, 285 F. Supp. 513 (D.C.S.D.N.Y. 1968), where, as here, the affidavits contained an allegation couched in the present tense; and compare the more common-sense, nontechnical and positive approach of our highest court in such cases as State v. Zuzulock, 39 N. J. 276 (1963), and State v. Kasabucki, above.

       STATE OF NEW JERSEY ) COUNTY OF HUDSON } SS
      Det. Robert Potter oí tile Jersey City Police Department assigned to the Narcotics Squad, being duty sworn upon his oath, dejioses, says and complains:

        Within the premises situated 62 Franklin St., in Jersey City, N. J., on the third floor right, occupied by one PAUL CLEMENTE and within the confines of a 1964 Pontiac Black Vinil over maroon, N. J. Reg. BBC 990, and owned by one JOSEPH P. CLEMENTE of 83 Palisade Ave., in Jersey City, N. J., and operated by PAUL CLEMENTE previously mentioned, are being stored narcotics as defined in the New Jersey Statutes 24:18-4, known as the uniform narcotic drug law and/or narcotic paraphernalia.
      The facts upon which these beliefs are based are as follows:
      1. Personal surveillance by deponent and by Sgt. Edmond Spies of the Jersey City Police Department and by members of the Jersey City Police Narcotic Squad, for a period of ten days, during varied periods of the day and night time, has shown known narcotic violators and in company with PAUL CLEBIENTE entering and leaving his home at 62 Franklin St., this city, and also seen in his company within the aforementioned automobile being the 1964 Pontiac, N. J. Reg. BBC 990. Among the persons seen entering and leaving the premises situate 62 Franklin St., in company with PAUL CLEMENTE include STANLEY RYDZEWSKI, WILLIAB1 NIPPING, JOHN PONTUS, LEONARD ERWINSKI, who are all narcotic users and violators of the Narcotic drug laws of the State of New Jersey. During this period of surveillance deponent noted that the said PAUL CLEBIENTE would contact individuals clustered in a group on corners and would make personal contact with each person handling a small item and receiving something in return. In all cases the person with which he made this contact would immediately leave the scene. Included in these contacts were the aforementioned known users of narcotics and narcotic law violators. In many cases it was observed by the Jersey City Police Narcotics squad and by the deponent in partieular that the aforementioned PAUL CLEMENTE would approach a group of persons on a street corner while operating the 1964' Pontiac N. J. Reg. BBC 990, and would use this vehicle for such unlawful purposes as aforementioned and being violations of the narcotics laws of the State of New Jersey.
      2. Information from a reliable source which has proven exacting in the past and has led the Jersey City Police Narcotics Squad and the deponent in particular to the arrest of persons involved in Narcotic law violations. Among such persons who have been brought before the courts of the State of New Jersey for narcotic violations include: PAUL SUCTIDOLSKI, RONALD SUCTIDOLSKI AND JAMES BLANET, JOHN HENNESSEY, ROBERT WARD. This informant has at close range seen the exchange of glassine bags from the person of PAUL CLEMENTE to persons who in return have given the said PAUL CLEMENTE United States Currency.
      Therefor [sic! the deponent' prays that a warrant may issue so the premises situate 62 Franklin St., third floor right apartment occupied by PAUL CLEMENTE and the person of the said PAUL CLEMENTE and the 1904 Pontiac N. J. Reg. B B C 990, may be searched in a manner prescribed by law.
      S/ Det. Robert Potter D320
      Sworn and subscribed to before me tiiis 20th day of January 1966.
      S/ John J. Lemken
      John J. Lemken, Magistrate Jersey City, N. J.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MONMOUTH COUNTY INVESTMENT CORP., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. BORIS YUSKEWITCH AND HELEN YUSKEWITCH, DEFENDANTS-APPELLANTS, AND SOPHIA YOUSKEVITCH, IGOR YOUSKEVITCH AND ANNA YOUSKEVITCH, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969
    Decided January 8, 1970.

      Before Judges Coseord, Collester and Kolovsky.

      Mr. Robert B. Silverman argued the cause for appellants.

      Mr. Daniel G. Gallop argued the cause for respondent.
   Per Curiam.

In this action on a promissory note executed by defendants to plaintiff and concededly subject to the provisions of the Secondary Mortgage Loan Act, N. J. S. A. 17:11A—1 et seq., the court granted plaintiff’s motion for summary judgment. The court overruled defendants’ contention that the following provision in the note,

the undersigned [defendants] further promise to pay to the holder hereof a reasonable attorney’s fee in the event that this note shall become the subject of legal proceedings instituted to collect any amount due hereon,

violated the Secondary Mortgage Loan Act and rendered the obligation void. After taking testimony, the court then determined that a fee of $1050 was a reasonable attorney’s fee.

Judgments were entered in plaintiff’s favor for $7764.42, the principal and interest due on the note, and for the attorney’s fee award of $1050 plus costs of $52.10.

Defendants appeal, contending that “imposition of an attorney’s fee upon defendants violated the Secondary Mortgage Loan Act.” We disagree. The section of the act upon which defendants rely, N. J. S. A. 17:11A-22, deals only with the fees which may be charged an applicant for a loan. It does not proscribe provisions in the loan obligation aimed at reimbursing the lender for reasonable attorney’s fees he may thereafter incur in seeking to collect by legal proceedings the unpaid balance of the loan.

Such provisions are, however, subject in operation and effect to pertinent rules and regulations adopted by the Commissioner of Banking and Insurance pursuant to the broad powers granted him by the act to adopt “such rules and regulations as shall be necessary to the establishment and maintenance of a standard of fair, equitable and honest conduct in the transaction of secondary mortgage loans.” N. J. S. A. 17 :llA-30. The record discloses that by Regulation Ho. 4 the Commissioner has authorized the lender-licensee to provide for reimbursement to it of “reasonable legal fees actually paid” in collecting the amount due.

While the testimony furnishes adequate support for the court’s determination that a fee of $1050 would be reasonable for the services rendered by plaintiff’s attorney in these proceedings, there is no proof that fees in at least that amount have actually been paid by plaintiff to its attorney or that plaintiff has obligated itself for payment of attorney’s fees in at least that amount whether or not collection is effected.

So much of the judgment as embodies an attorney’s fee allowance of $1050 is therefore reversed and remanded to the trial court for a hearing and determination as to the legal fees actually paid by plaintiff or for which plaintiff has obligated itself as above mentioned, and the allowance to plaintiff of such amount, not exceeding, however, $1050, as part of the final judgment to be entered herein.

The judgment is otherwise affirmed.


author: Lewis, J. A. D.

text:
    LAWRENCE DELLA FAVE, PETITIONER-RESPONDENT AND CROSS-APPELLANT, v. DAVID KAHN, INC. RESPONDENT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided January 13, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Isidor Kalisch argued the cause for appellant and erossKrespondent.

      Mr. Samuel L. Marciano argued the cause for respondent and cross-appellant (Messrs. Florio, Bunn, Marciano & LypimTci, attorneys).
   The opinion of the court was delivered by

Lewis, J. A. D.

Respondent David Kahn, Inc. appeals from a judgment of the Hudson County Court affirming an award to petitioner Lawrence Della Pave by the Division of Workmen’s Compensation of 3 permanent disability on a claim for abdominal strain. Petitioner cross-appeals from that part of a judgment which dismissed his claim for a compensable hernia.

It appears from the record that on March 30, 1965 and July 15, 1965 Della Pave was operated on for a right-sided and a left-sided inguinal hernia respectively. He returned to work on August 16 with a note from his doctor, which was given to the employer, advising that petitioner “was to do no lifting.” He was assigned to light work involving the operation of a plastic molding machine and the placement of the molded parts in boxes which weighed from 10 to 12 pounds when filled.

Subsequently, on Thursday, October 14, 1965, the foreman “switched” petitioner to another molding machine which turned out plastic parts at a faster rate. They were placed in a barrel weighing from 80 to 90 pounds when filled. At about 11:45 p.mv toward the end of the day’s work shift, the “main boss helper” did not respond to petitioner’s call for assistance, and he attempted to place the weighted barrel on a hand truck for the purpose of removing it to the back room. Petitioner claims that while in the process of lifting the barrel to the hand truck he felt a sharp pain in the right groin. After work he went home without reporting the alleged incident to anyone at the plant.

The following day Della Pave remained away from work and, at about 1 p.m., he met a fiiend by the name of “Joe”, whoso last name and address were unknown to him, at the Ideal Cafeteria in Hoboken. He testified that he asked his friend to telephone a “message” to his employer. Joe was not produced as a witness. When Della Pave was asked why he did not make the telephone call himself, he said, “I don’t know why. I was afraid, I guess, to call up.”

On Tuesday night, October 19, petitioner consulted Dr. Eustico Camangian. The doctor gave him a “slip” which he delivered the next day (Wednesday) to the personnel manager at the plant with the comment, “I had a hernia again from picking that barrel up.” The manager then told him that the company could no longer use his services.

In his claim petition filed December 14, 1965, Della Pave described the extent and character of his injury thusly, “right abdomen, body, and possible hernia.” In a pretrial memorandum filed with the Division, Dr. Camangian’s “reported finding” was listed as: “Recurrent right inguinal hernia.” The only testimony before the Division was that of petitioner and his medical expert Dr. Joseph Visconti who examined him on January 3, 1966. The doctor testified in substance that the prior hernia operations were successful, they performed the purpose for which they were intended and “there was no evidence of recurrence within a reasonable time.” It was his opinion that the new hernia, in the region of a scar, occurred in the abdominal wall—“what we call a direct hernia”—and it was attributable to the work incident described by petitioner. He further testified that there was “an antecedent strain.” The doctor opined that the resultant disability was 10% partial permanent.

The compensation judge dismissed petitioner’s claim at the close of his ease for failure to meet the statutory notice requirements of N. J. S. A. 34:15-12 (c) (23) which provides :

Where there is a traumatic hernia compensation will be allowed if notice thereof is given by the claimant to the employer within 48 hours after the occurrence of the hernia but any Sunday, Saturday or holiday shall be excluded from this 48-hour period.

He determined that the proofs established that petitioner had a “direct hernia” and that he could not separate the hernia from the strain which accompanied it, saying, “I think it is all part and parcel of the same injury.”

The County Court considered the matter de novo on the record and concluded that petitioner failed to sustain any right to compensation benefits for a hernia, citing the aforequoted statute and Buzza v. General Motors Corp., 49 N. J. Super. 322 (App. Div. 1958). There this court reviewed the legislative history of the 48-hour notice requirement and made the observation that the ordinary applicable rule of liberality of construction of the 'Workmen’s Compensation Act “will not excuse judicial disregard of legislative intention made clearly manifest by a study of the background, objectives and contents of the statute as it stands, in order to foster what the court might deem more liberal treatment of an employee’s claim.” 49 N. J. Super., at 333.

After noting that petitioner’s medical proofs indicated he suffered and still endured pain causally related to the October 14 episode, the County Court held that the notice provision of N. J. S. A. 34:15-12 (c) (23) is inapplicable to a claim for a work-connected strain. Accordingly, the ease was remanded to the Division for a hearing on the merits of an independent claim for a compensable strain. At the hearing on remand the parties relied on the original record and the judge of compensation, in light of the County Court’s opinion, made an award fixed at 3J4% permanent disability. That award was affirmed and the aforementioned appeal and cross-appeal ensued.

Petitioner argues here, as he did below, that he gave his employer notice within 48 hours of the occurrence of the hernia since the notice was given the day following such a diagnosis by Dr. Camangian, and, if it should be determined otherwise, he nevertheless is entitled to a compensable award for the attendant strain. Respondent counters that the County Court’s remand order was functus officio but, in any event, petitioner failed to produce any credible evidence to support a partial permanent disablility award for strain.

We agree with the concordant findings of the Division and County Court that petitioner failed to give his employer the mandatory notice within 48 hours after he allegedly suffered a traumatic hernia. Under cross-examination Della Eave testified:

Q. Then you have had that pain from the time you lifted the barrel at work that night.

A. The barrel.

Q. xlnd I believe you said you knew that you had a hernia; is that right?

A. That’s right.

Q. Now, you knew that you had a hernia, didn’t you, because you had had that pain before, before you were operated on; isn’t that right?

A. That’s right.

If the lifting of the barrel precipitated the hernia causing sufficient pain of a character with which petitioner was familar, so as to impute knowledge to him that he had a new hernia, it became incumbent upon him to notify his employer within 48 hours thereafter. Petitioner not only failed to do so, but he did not consult a doctor until five days after the incident. The legislative reasons for such short notice are fully set forth in Buzza v. General Motors Corp., supra, and need not be repeated in this opinion other than to summarize that they “serve as a probative assurance of the validity of the. claim.” 49 N. J. Super., at 332. Indeed, as was observed in Fuferi v. Pennsylvania R. R. Co., 117 N. J. L. 508, 516 (E. & A. 1937), the special statutory-notice provision relating to a hernia is in the nature of an exception to the rule of liberal construction of the Workmen’s Compensation Act and is to be strictly construed. See also 1A. Larson’s Workmen’s Compensation Law, §39.70, pp. 662.70-662.71 (1966).

The date of the new hernia was fixed by petitioner as October 14, 1965. This was confirmed by ,the medical evidence. It is therefore plain that the notice which was given to respondent on October 20 was fatally inadequate.

We find no merit to the contention that a separate award can be made for the strain. Although Dr. Yisconti at one point in his testimony stated that “there was an antecedent strain,” no. evidence was adduced that the type of strain involved was different from that which directly produced the hernia. The proofs demonstrate a strain concomitant of hernia and, as such, should not be considered separately, but rather a hernial strain. See McKeon v. Foundation Co., 134 N. J. L. 375, 377 (Sup. Ct. 1946), aff’d. o.b. 136 N. J. L. 196 (E. & A. 1947). If the result reached is a hardship, the remedy lies with the Legislature, not with the courts. 134 N. J. L., at 378.

Having reached the foregoing conclusions, it is unnecessary for us to discuss further the propriety of the County Court’s remand to the Division. The judgment of the County Court in favor of petitioner is reversed and the order of the Division dismissing his claim petition is reinstated.

So ordered.


author: Halpern, J. A. D.

text:
    GEORGE STUMPER, SR. AND VIRGINIA STUMPER, HIS WIFE, PLAINTIFFS-APPELLANTS, v. VICTOR KIMEL, DEFENDANT-RESPONDENT, AND BRUNO HENNIG, JULIUS GUSTAV MEDEK, MIGUEL MOYA, AND THE BETH ISRAEL HOSPITAL ASSOCIATION OF PASSAIC, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969
    Decided January 8, 1970.

      Before Judges Sullivan, Carton and Halrern.

      Mr. George B. Gelman argued the cause for appellants {Messrs. Galissi, Gelman, Guccio and Klinger, attorneys; Mr. Peter 8. Levitov on the brief).

      Mr. Raymond M. Tierney, Jr. argued the cause for respondent {Messrs. 8hanley & Fisher, attorneys; Mr. Philip D. Saxer on the brief).
   The opinion of the court was delivered by

Halpern, J. A. D.

Plaintiffs appeal from a judgment entered on a jury verdict in favor of defendant Dr. Victor Kimel. This medical malpractice suit was originally instituted against Beth Israel Hospital of Passaic, two nurses, Dr. Bruno Hennig, a resident physician employed by the hospital, and Kimel. Shortly before summations plaintiffs settled their claims with all defendants, except Kimel, for the sum of $25,000.

A brief summary of the facts will point up the issues involved. On January 29, 1965 Kimel, a specialist in thoracic and cardio-vascular surgery and general surgery, operated on plaintiff George Stumper, Sr., and resected an aortic aneurysm. On the seventh post-operative day plaintiff developed an intestinal obstruction. To relieve this condition Kimel inserted a Miller-Abbott tube (M-A tube). The purpose and function of an M-A tube is not in dispute and is described in defendant’s brief thusly:

A Miller-Abbott tube is a device which is inserted through the patient’s nostril and passes through the esophagus into the stomach and ultimately into the small intestine. The purpose of the device is to decompress the small intestine by extracting the gastric contents.
The device consists of a tubular rubber hose which surrounds two lumen. One lumen is used for suction; the other communicates with a balloon. The lumen do not communicate with each other. The tube has a forked metal tip; one fork is marked ‘suction', the other ‘balloon’. The markings are engraved in the metal. The tips communicate with their respective lumen.
The suction lumen communicates with the interior gastric system through holes at the end of the tube. It is through this lumen that the gastric contents may be extracted.
The balloon lumen does not communicate with the interior gastric system, it ends with a balloon which is attached to the end of the M-A tube. The balloon is deflated when the tube is inserted. However, after it is inserted, water, air or mercury may be placed in the balloon. The tube is carried into the small intestine by the peristaltic action of the stomach. The balloon provides the bulk and weight on which these contractions may work.
Because the intestines or stomach may contact the suction holes, it is necessary to irrigate the tube with fluid in order to maintain suction. This is accomplished by introducing a saline solution through the suction lumen.

After Kimel had inserted the M-A tube on February 6, 1965 he entered orders on the hospital chart for the nursing staff to irrigate and advance it periodically. The hospital records indicate these orders were carried out. Plaintiffs do not dispute the fact that leaving such orders is the accepted standard hospital procedure, since the nursing staff are hired, trained and qualified to perform this task.

On February 8, 1965 word reached Kimel that the wrong lumen of the M-A tube may have been irrigated. Kimel testified that he checked this report by personally examining the M-A tube and aspirating the balloon lumen, but found no fluid therein. He caused x-rays to be taken and when they appeared to be satisfactory he ordered the M-A tube removed by a resident physician. Dr. Hennig, one of the resident physicians employed by the hospital, attempted to remove it (not in Kimel’s presence) but was unable to do so. Hennig testified that in his opinion someone had previously tried to remove it. Kimel verified the fact that it could not be removed, and ultimately determined that plaintiff had a perforation of the esophagus and a partially collapsed lung. Presumably these injuries were sustained when attempts were made to remove the M-A tube. Kimel performed a thoracotomy operation to repair the perforation and to remove the M-A tube. When the balloon was removed clear fluid came out of it which indicated that someone had improperly irrigated the M-A tube, preventing its removal in the normal manner and resulting in plaintiff’s injuries.

There was a conflict in the testimony as to whether Hennig or Kimel first attempted to remove the M-A tube. Plaintiff testified it was Kimel, and this was inferentially supported by Hennig, who testified someone had previously tried to remove it. Kimel testified his attempts were made only after Hennig’s failed.

Defendant and his medical experts testified that KimeFs post-operative procedures in treating plaintiff conformed in all respects with accepted medical and hospital standards. Plaintiffs’ medical expert testified that there would be a deviation from such standards if (a) Kimel knew there was water in the balloon and ordered the M-A tube’s removal without imparting this fact to the resident, and (b) Kimel knew there was water in the balloon and failed to eliminate the water before trying to remove the M-A tube.

The jury having resolved all issues in Kimel’s favor, plaintiffs now seek a reversal and new trial based on alleged legal error. They contend that defendant, as a surgeon adminislering post-operative care, should be held vicariously liable for the negligence of a hospital-employed resident physician carrying out his orders requiring the expertise of a doctor. This argument is based on the so-called “borrowed servant” rule, which plaintiffs contend made Ilennig the employee of Kimel while carrying out Kimel’s orders. We disagree and hold that a surgeon rendering post-operative care to a patient is not liable for the negligence of a hospital-employed resident physician, when the orders given relate to procedures which are not potentially dangerous to the patient and fall within the ambit of his training and qualifications, and is the accepted medical and hospital standard of practice. Barrette v. Hight, 253 Mass. 268, 230 N. E. 2d 808 (Mass. Sup. Jud. Ct. 1967). See also Morris v. Winsbury-White, 4 All Eng. 494 (1937).

Prescut-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses, interns, as well as administrative and manual workers, and they charge patients for medical care * * *. The Standards for Hospital Accreditation, the state licensing- regulations and the defendant’s bylaws demonstrate that the medical profession and other responsible authorities regard it as both desirable and feasible that a hospital assume certain responsibilities for the care of the patient. [Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N. E. 2d 253, 257, 14 A. L. R. 3d 860 (1905), cert. den. 383 U. S. 9-16, 86 S. Ct. 1204, 16 Ed. 2d 209 (1966)]

As medicine is practiced today it would be unrealistic and unreasonable to adopt any other view. There are exceptions to this rule; as examples only, if the patient proves the surgeon was negligent in giving his instructions, or he knew the resident was not qualified to perform the task assigned, or he was present and could have avoided the injury, or that some special contract arrangement existed with the patient or the resident which would require a different result. Ho henthal v. Smith, 72 App. D. C. 343, 114 F. 2d 494 (1940); Bria v. St. Joseph’s Hospital, 153 Conn. 626, 220 A. 2d 29 (1966).

The trial judge, being of the opinion that a fact question was presented on whether Kimel’s order to remove the M-A tube was potentially dangerous to plaintiff, properly charged the jury that if they found that the order given by Kimel was “such that the potential dangers and risks attending it are unduly great with respect to the patient,” then such would be a nondelegable duty, and Kimel would be responsible for Pfennig’s negligence. The jury, by its verdict, found such order to be delegable and in accordance with accepted medical and hospital standards, and absolved Kimel from responsibility.

Plaintiffs, in seeking to hold Kimel liable, advance the same “borrowed servant” rule argument with respect to the admitted negligence of the hospital and the nurses in irrigating the M-A tube. What we have said with respect to Pfennig applies with equal force to the hospital and the nurses. The proofs in the record are undisputed that the orders Kimel left for the nursing staff met the accepted medical and hospital standards in such situations. Therefore, the court in its charge properly instructed the jury that Kimel was not responsible for the negligence of the hospital and the nurses. See Martin v. Perth Amboy General Hospital, 104 N. J. Super. 335 (App. Div. 1969), where this rule is stated but the surgeon was held liable on other grounds. See also Moore v. Guthrie Hospital, Inc., 403 F. 2d 366 (4 Cir. 1968), where a surgeon was held not liable for negligence of a staff nurse who injected a patient intravenously instead of intramuscularly.

Finally, plaintiffs charge prejudicial error, which we are asked to recognize as plain error, because defense counsel in summation quoted from the poem “The Cremation of Sam McGee.” We have considered this argument in the light of the entire record and fail to find plain error affecting the substantial rights of the plaintiffs.

Affirmed.


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

text:
    TOWNSHIP OF WINSLOW IN THE COUNTY OF CAMDEN, PLAINTIFF-RESPONDENT, v. BOARD OF EDUCATION OF THE CITY OF CAMDEN IN THE COUNTY OF CAMDEN, DEFENDANT-APPELLANT.
    Superior Cour! of New Jersey Appellate Division
    Argued December 15, 1969
    Decided January 9, 1970.

      Before Judges Coneord, Collester and Kolovsey.

      Mr. Frank E. Vittori argued the cause for appellant (Mr. Leonard A. Spector, attorney).

      Mr. Charles A. Cohen argued the cause for respondent (Mr. Samuel L. Supnich, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Por several years prior to 1968 the Camden Board of Education conducted a summer “day-camp” program for selected categories of school children, more fully discussed infra, in a county-park area in Berlin. During that period it was also engaged in plans to acquire a 70-acre tract, inclusive of a lake, in the Township of Winslow, for the permanent site of a somewhat expanded camp program. It did acquire the property, with the aid of federal funds, and had effected an outlay of about $200,000 for land and improvements when the consummation of the plan to change the site from Berlin to Winslow was blocked by the institution of this declaratory judgment action by Winslow (“township” hereinafter).

The Law Division held the acquisition of the land by the Camden Board of Education (“board”, hereinafter) illegal; enjoined its use for the aforestated purpose; directed divestiture of title, and adjudged that in the meantime the property was to be held subject to all ordinances of the township as though owned by a private corporation and that it was taxable real estate from the date of acquisition. The board appeals.

The core holding of the trial court was that the board had acquired the land “for school purposes,” contrary to N. J. S. A. 18 :7—74, which restricts the extraterritorial location of lands acquired for such purposes to the “municipalities adjoining the school district.” Winslow does not adjoin Camden. The corresponding revised statutory section is now N. J. S. A. 18A:20-4.2. The board’s position was that the acquisition was legally supported by N. J. S. A. 18:5-43, which authorized establishment of, and acquisition of land in or out of the municipality without restriction for “public playgrounds and recreation places.” The current revised reference is N. J. S. A. 18A :20-17.

The board on this appeal for the first time raises a question as to the township’s standing to challenge this project, but we think the general public interest requires reaching the meritorious question adjudicated below. We find the project a valid one and the acquisition of the land in Winslow therefor to have the statutory sanction cited above for establishment of “public * * * recreation places.”

Much of the attack on the project and the rationale of the trial court was based on the language of certain formal documents executed for and on behalf of the board in connection with applications for federal funds available under the Elementary and Secondary Education Act of 1965, P. L. 89-10. 205(a) (1) specifies the permitted purposes of such grants

* * * for programs and projects (including the acquisition of equipment and where necessary the construction of school facilities) (A) which are designed to meet the special educational needs of educationally deprived children in school attendance areas having high concentrations of children from low-income families * * *.

The hoard’s applications for federal funds recite that it will use the funds only for the purposes provided in the act. The board purported to intend to use the Winslow site for an “Outdoor Educational Program,” under which 750 selected students would be transported daily to the site during the summer for lectures, arts and crafts, nature and science instruction, musical activities and physical education and development. Children would be selected for the program on the basis of their “educational disadvantage.”

As against the emphasis on “educational” reflected by the foregoing representations, the testimony of the Camden superintendent of schools and of the local director of the project for the board bore more pointedly on the recreational aspect of the program and the breadth of its availability to all disadvantaged children. While, at Berlin, only public school children from grades 1 to 6 were included in the program, the board contemplated that in the future it might extend to pre-school age and parochial school children falling within the disadvantaged category.

As operated heretofore, the children selected for the program had a period of special remedial classroom instruction in Camden in the morning and were then transported in buses to the campsite. Attendance in the camp program was optional on the part of any child selected. At the campsite lunch was provided and out-of-door activities conducted, such as “swimming, hiking, nature study, arts and crafts, singing, * * * dancing * * * when it fits with music,” and various kinds of games—-reflecting, in composite, what is commonly known as a summer “day-camp” activity. Directing the aetivities of the children were equal numbers of regular school teachers and “aides” or “counsellors,” the latter generally college students. There was no instruction in any formal sense nor any tests or grades. The program contemplated for Winslow is essentially the same, with such expansion and improvement as ownership of the property will permit.

A building already constructed at the Winslow site contains children’s locker rooms, shower rooms, toilets, a nurse’s office, a kitchen, a mechanical room and storage areas. There axe no classrooms. It is contemplated that eventually overnight sleeping facilities may be provided.

School officials of Camden testified, in effect, that educational and recreational purposes and functions are interrelated and mutually contributory. Common experience fortifies this observation, and the Legislature has recognized its truth by selecting local boards of education as appropriate agencies for the establishment of “public playgrounds and recreation places.” Considered semantically, and in isolation, this project can be assimilated to the concept of “school purposes,” prohibited in noncontiguous municipalities by N. J. S. A. 18 :7—74. It can, however, in our view, also be accommodated within the broad concept of a public recreational area, within N. J. S. A. 18 :5-43. The judicial function here, then, is to read the two pertinent statutes together and distill therefrom the pervading legislative intent as to which policy, the prohibitory or the permissive, should govern the fate of a noncontiguous extraterritorial project of this particular kind. In so doing we should be guided by the constitutional precept for liberal construction in their favor of laws concerning municipal corporations. N. J. Const., Art. 4, § 7, par. 11. The particular justification for that approach in this instance is manifest from the salutary and progressively modern objectives of the program. Moreover, the problem of construction of our own statutes should not be beclouded by any consideration of whether the program as here conceived and projected falls outside the purposes of the federal aid legislation, although representations made by the board in seeking federal funds are certainly probative as to its intent in relation to the nature of the project.

A clue to the purpose for legislative allowance of public “recreational areas” in noncontiguous localities while forbidding “school-purpose” projects therein may well be found in the facts of this case. It may have been deemed that boards of education in urban cities like- Camden should have recourse to more rural areas for establishment of a recreational facility like this one, and that unrestricted freedom of choice of site would subserve that objective. But strictly school facilities, like school buildings, presented no occasion for departure from conventional notions as to proper location of such buildings.

The township argues that this project cannot properly be regarded as a public recreation place (it must be conceded it is not a “public playground,” as commonly understood), since a public facility assertedly is open to all of the public for its enjoyment, not merely children of school age. But this is not necessarily so. There is no inherent reason why appropriately chosen segments of the public at large may not be selected by the responsible agency for enjoyment of a recreational facility particularly suited to such a segment — e. g., programs for the middle-aged or elderly, or for the young or very young, or for housewives, etc. The instant project, we are credibly informed by the proofs, will be available to all children, whether or not regularly attending public schools, falling within the educationally or culturally disadvantaged category, from pre-school age to grade 6. And it seems particularly compatible with the legislative selection of boards of education for sponsorship of public recreational places that the restriction of one such establishment to persons of school age should not be deemed to detract from its public character. We thus conclude that the class here so chosen does not derogate from the public character of the enterprise.

We entertain no doubt that “recreational place” better describes the actual functions and purposes of the particular activity here involved, as a whole, than “school”. It is certainly not a school in any conventional sense, notwithstanding that the activities are appropriately incidental to school administration in modern educational theory. But the fact that the Legislature did not contemplate that the existence of educational incidents or the use of school personnel should necessarily strike down a public recreational establishment sought to be validated under N. J. S. A, 18 :o-43 is best attested by the allocation of the creation and maintenance of such establishments to local boards of education. The Legislature did not empower with one hand while destroying with the other.

The township points out- that the board’s brief does not expressly attack the trial court’s finding that the acquisition by the board of this land was for school purposes. While this is so, we broadly construe the board’s brief and oral argument as a plea to sustain the project as basically valid, even if defectively carried out (but we find no such defect). The board certainly contended below that the project was validly located in Winslow as a public recreational activity, and it would disserve the interests of justice and the public interest for this court to avoid a decision on the merits of the underlying legal question because of deficiencies, if any, in the board’s appellate presentation.

We conclude that the lands in question were lawfully acquired by the board for the establishment of a public recreational place and that the judgment under review must be reversed in all respects.

Eeversed; no costs.

       The amount of land in other municipalities so to be used is limited to 50 acres, no more than 25 of which may be in a single such municipality without its consent.


author: Labrecque, J. A. D.

text:
    SHIRLEY YERZY AND RICHARD YERZY, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. DAVID LEVINE, M.D., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1969
    Decided January 15, 1970.

      Before Judges Kilkenny, Labbecque and Leonabd.

      Mr. Lawrence D. Smith argued the cause for appellants (Messrs. Hein, Smith, Mooney & Berezin, attorneys).

      Mr. John J. Francis, Jr. argued the cause for respondent (Messrs. Shanley & Fisher, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

In this suit alleging medical malpractice plaintiffs appeal from a judgment in favor of defendant.

On January 16, 1964, while a patient in Barnert Memorial Hospital, Paterson, plaintiff Shirley Yerzy came under the surgical care of defendant. She had previously suffered several gall bladder attacks and defendant diagnosed her condition as chronic cholelithiasis (chronically inflamed gall bladder with stones). On his recommendation plaintiff consented to surgery for removal of the gall bladder. The operation took place on January 17. On the second day thereafter plaintiff observed a large quantum of bile, which was staining, saturating and seeping through the padding which cov ered her surgical incision, and accompanied by pain in the right side of her back. The heavy drainage persisted throughout her stay in the hospital.

When Mrs. Yerzy questioned defendant he attributed the unusual, heavy bile drainage to a loosening of a suture at the cystic duct, and suggested that plaintiff “wait and see, perhaps nature will take care of it and it will close up by itself.” He told her this notwithstanding that he had never seen a suture loosen at the cystic duct. By January 27, when the time for Mrs. Yerzy’s discharge was at hand and the drainage had not stopped, he ordered X-rays (an intravenous cholangiogram) for the asserted purpose of effectuating a visualization of the common bile duct. Because the dye used had not been properly absorbed so as to permit visualization, the X-rays were negative.

By this time defendant, after telling Mr. Yerzy that his wife had a biliary fistula, recommended that she be examined by someone with more experience. In line with this, following her discharge from the Barnert Hospital she was admitted to the Hew York Hospital, where she came under the care of a Dr. Glen (who, along with another, had been recommended by defendant). Dr. Glen performed a second operation on February 3, 1964 'which revealed that the common bile duct had previously been completely severed.

Mrs. Yerzy testified she was not thereafter informed of the real nature of the condition found or its relationship to the manner in which the first operation had been performed. She was told by Dr. Glen only that her bile duct had been found to be “interrupted.” She thought he also said there was a stone in the duct.

For better understanding of the contentions of the respective parties, we are told that the gall bladder is located on the underside of the liver and that it discharges concentrated bile through the cystic duet into the common bile duct which in turn discharges into the upper end of the small intestine. Bile (not concentrated) is also discharged directly from the liver through the hepatic duct into the common bile duet. Thus severance of the common bile duct permitted bile to be freely discharged from the liver into the upper abdominal area.

Dr. Levine testified that prior to beginning the removal of Mrs. Yerzy’s gall bladder he palpated the common duct and found nothing abnormal. During the course of the removal of the gall bladder he “dissected out” the cystic duct, i. e., it was ligated in two places and then cut in-between, so as to sever the gall bladder from it. The operation did not call for surgery of the common duct, which was beyond, and at the other end of the cystic duct. While Dr. Levine denied severing it, he conceded that “apparently it must have happened” at the time of his operation.

Mrs. Yerzy testified that her knowledge of her true condition and defendant’s responsibility in connection with it began with her discovery, on a visit to the Yew York Hospital sometime in the first half of 1966 for further X-rays, that her bile duct had been severed. Her complaint was filed on October 6 of that year. The first count charged medical malpractice and the second, fraudulent concealment by defendant of his asserted negligence in severing the common duet during the operation. The answer filed by defendant set up, among others, the defense of the statute of limitations (N. J. S. A. 2A :14-2).

Thereafter, defendant moved to dismiss the first count on the ground that it was barred because not brought within two years of the time of the operation. Plaintiff opposed the motion on the ground that the “discovery rule” was applicable; hence the statute did not begin to run until plaintiff knew or should have known of the condition from which she was suffering and the existence of a cause of action against defendant based upon it. Fernandi v. Strully, 35 N. J. 434, 450 (1961). The motion was granted.

Thereafter, there was a jury trial as to defendant’s liability under the second count. The trial judge (not the one who granted the motion), in submitting the ease to the jury, directed it to first find whether defendent had been guilty of medical malpractice, and thereafter determine whether there had been fraudulent concealment of that fact by him. The jury, by a vote of 11 to 1, found malpractice proximately resulting in damages to plaintiffs but no fraudulent concealment. It was unable to agree upon a special verdict as to a third issue, -whether it was before or after October 6, 1964 that “Mrs. Yerzy knew or discovered, or with reasonable diligence should have discovered, Dr. Levine’s claimed malpractice proximately causing her injuries.” The present appeal challenges both the concomitant judgment for the defendant and the dismissal of the first count.

As to the first count, we are confronted with a simple issue — whether the two-year period prescribed by N. J. S. A. 2A:14—2 began to run on the day of plaintiff’s operation, or on the day that plaintiff first knew or should have known of her condition and defendant’s alleged responsibility for it. If the latter rule applied it was error to dismiss.

The discovery rule appears to have been first enunciated in the ease of Hahn v. Claybrook, 130 Md. 179, 100 A. 83, L. R. A. 1917C, 1169 (Ct. App. 1917). See Prosser, The Law of Torts (3d ed. 1964) § 30, at 148; Annotation, 80 A. L. R. 2d 368, 388 (1961). In this State it was held applicable for the first time to a medical malpractice case in Pernandi v. Btrully, supra. In that case, following a hysterectomy, the operating surgeon permitted a wing nut from a surgical instrument to remain in plaintiff’s body. Suit was not instituted until more than two years following the operation. In reversing the dismissal of the suit it was held that the period of limitation began to run when plaintiff knew or had reason to know of the presence of the foreign object in her body and of the existence of the cause of action against defendant based upon its presence (at 450). The court there noted:

It must be borne in mind that Mrs. ITernandi’s claim does not raise questions as to her credibility nor does it rest on matters of professional diagnosis, judgment or discretion. It rests on the presence of a foreign object -within her abdomen following an operation performed upon her by the defendant-doctors. Hero the lapse of time does not entail the danger of a false or frivolous claim, nor the danger of a speculative or uncertain claim. The circumstances do not permit the suggestion that Mrs. Fernandi may have knowingly slept on her right but, on the contrary, establish that the cause of action was unknown and unknowable to her until shortly before she instituted suit. Justice cries out. that she fairly be afforded a day in court and it appears evident to us that this may be done, at least in this highly confined type of case, without .any undue impairment of the two-year limitation or the considerations of repose which underlie it. If, as is to be hoped, the resulting jeopardy to defendants produces a greater measure of care in connection with surgical operations, so much the better.

See also Morgan v. Grace Hospital, Inc., 149 W. Va. 783, 144 S. E. 2d 156, 161-162 (W. Va. Sup. Ct. App. 1965), and Waldman v. Rohrbaugh, 241 Md. 137, 215 A. 2d 825, 830 (Ct. App. 1966).

In Rothman v. Silber, 90 N. J. Super. 22 (App. Div. 1966), certif. den., 46 N. J. 538, (1966), we found Fernandi inapplicable to a case where the malpractice charged was the negligent administration of a “saddle block” anesthesia. In doing so we noted, among other things, that we were dealing with a drug which was intended to be incorporated into the body and would lose its identity quickly after injection, and liability for the administration of which would necessarily depend upon expert testimony. "We concluded that it could not be said that the lapse of time did not entail danger of a false or frivolous claim.

Since our decision in Rothman v. Silber, the Supreme Court has spoken further. In Rosenau v. New Brunswick, 51 N. J. 130 (1968), it held that, on a homeowner’s strict liability claim for damage to property against the manufacturer of a water meter which had burst, his cause of action accrued at the time the defect in the meter was discovered (which was also when the damage occurred) notwithstanding the lapse of 22 years between the time the meter left the manufacturer’s hands and the time of the damage.

Again, in New Market Poultry Farms, Inc. v. Fellows, 51 N. J. 419 (1968), where plaintiff’s cause of action against a firm of professional engineers was based upon an erroneous land survey made in 1952, it was held that the cause of action accrued, not when the error was committed but when, in 1963, it was discovered. The court there held:

Here as in Fernandi, supra, 35 N. J. 450 (1961) the credibility of plaintiff’s claim is not questioned and the incontestable factual pattern presented to us on this motion bespeaks the probability of defendant’s negligent fault in the acreage calculation. The passage of time does not entail the danger of a fraudulent, false, frivolous, speculative or uncertain claim. Nor is such danger even suggested by defendants. Further, under the said facts it does not appear possible that by reason of the passage of time defendant’s testimonial proof of a defense would be made more difficult. The circumstances so portrayed do not permit a suggestion that Mrs. Pack knowingly slept on her rights but to the contrary establish (.hat she brought suit expeditiously after she discovered her alleged actual damage. Accordingly we hold that under the facts and circumstances as presented, the motion for summary judgment should have been denied. Such a result, as noted, is consistent with Fernandi and in harmony with the trend in other jurisdictions, [at p. 425]

In Diamond v. New Jersey Bell Telephone Co., 51 N. J. 594 (1968), plaintiff sued, among other things, for the cost of repairing damage to its sewer line sustained on February 1, 1966 due to defendant’s alleged faulty installation of an underground conduit in 1957. Suit was not instituted until July 1966. As in the instant case, there was a motion for dismissal on the ground that the action was barred by the statute of limitations. In upholding denial of the motion the Supreme Court again applied the discovery rule, holding that the cause of action accrued when the plaintiffs knew or should reasonably have known of the damage. The court there noted:

In New Jersey, the discovery rule has, to date, been applied only in certain limited circumstances — in a foreign object malpractice case (Fernandi v. Strully, supra) and in the ease of a negligent land survey (New Market Poultry Farms, Inc. v. Fellows, supra). We have recognized, however, that other situations may well be appropriate for extension of the same salutary rule. See Fernandi v. Strully, supra, 35 N. J., at p. 439. For reasons to be expressed, we are of the opinion that the case before us presents one such appropriate instance. [at 597]

x\nd further:

We are in agreement with the above decisions holding that to permit the running of the limitations period while a plaintiff’s injury is hidden from observation beneath the ground would be overly harsh and unjust. Wo accordingly hold that the discovery rule extends where, as here, the location of the negligent conduct and resultant harm beneath the surface of the earth prevents the injured party from immediately ascertaining the harm inflicted. Courts have always “'sought to apply [the statute of limitations] with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary individual injustices.” Fernandi v. Strully, supra, 35 N. J., at p. 449. This standard, in cases such as the one at hand, demands that the limitations period not. commence, at least until the harm incurred by a plaintiff becomes reasonably apparent or ascertainable. See 63 Harv. L. Rev. 1177, 1204 (1950). [at 600]

After holding that the facts entitled plaintiffs to the benefit of the discovery rule, the court expressed its desire “to postpone discussion of the ultimate bounds of the discovery rule until appropriate cases arise.” [at 601]

Upon consideration of the foregoing, we are satisfied that the rationale underlying Fernandi v. Strully, and reiterated in Rosenau, New Market and Diamond, is fully met by the factual pattern here. The severing of the common dnct and the closing of the operative site without repairing it, like the leaving of the wing nut in Fernandi, were actions which themselves bespoke negligence. Mrs. Yerzy’s claim does not raise questions as to her credibility, nor does it rest on matters of professional diagnosis, judgment or discretion. Rather, it depends upon proof of the severance during surgery of a portion of her anatomy which was not supposed and never intended by defendant to he the object of such surgery. The finding of the severed bile duct is undisputed, so that the lapse of time does not entail the danger of a false or frivolous claim, or one which is speculative or uncertain. The circumstances alleged by plaintiffs, if established at trial, do not permit the suggestion that they slept on their rights.

We conclude that to give plaintiffs their day in court will work no undue impairment of the two-year limitation or the reasons which underlie it. If an action may be maintained for the negligent breaking of a pipeline which was underground and thus concealed from view, where the negligence took place nine years before the bringing of the suit, it would be incongruous indeed to deny recovery to a patient for the negligent severing some 30 months before the institution of suit, of an equally concealed portion of her anatomy.

In the context of the pleadings and in view of the facts developed thus far, Mrs. Yerzy and her husband should be afforded their opportunity to establish that Mrs. Yerzy first knew or had reason to know of defendant’s severance of her common bile duct, and of the existence of a cause of action against him based thereon, within a period of two years prior to institution of her suit. Accord, Wilkinson v. Harrington, 243 A. 2d 745 (R. I. Sup. Ct. 1968). While defendant asserts that by reason of Mrs. Yerzy’s contacts with the medical profession, and of certain information given her by Dr. Glen following the operation, those operative facts should have been known to her shortly after March 1964, at the latest, we are without doubt that as the matter now stands, the issue is one for resolution by the trier of the facts.

The judgment of dismissal as to the first count is accordingly reversed and the case remanded for further proceedings theron.

The question remains whether in view of the jury’s previous finding of negligent malpractice on defendant’s part, that portion of the verdict should stand and the retrial be confined to the issue of whether a recovery by plaintiffs is barred by the statute of limitations. We hold this to be the proper course. Negligence was charged in the second count. In the exercise of his discretion as to procedure, the trial judge required the case to be tried as to the issues of negligence and proximate cause, and those issues were submitted to the jury. The jury was instructed that “the first question” it was to determine was whether “Dr. Levine [was] guilty of malpractice * * * which proximately caused damages to the plaintiffs.” Later, after an unobjectionable charge bearing on those issues, it was instructed, “If you find that he was not guilty of malpractice that proximately caused the injuries then your consideration of the case is at an end and you will return a verdict of no cause for action * * It is hardly to be doubted that, had an adverse verdict been rendered as to malpractice, it would have precluded plaintiffs from again litigating that issue. We see no reason why defendant should not be equally bound by it. Although there was an objection by defendant to the receipt of proofs as to malpractice and submission of that issue to the jury, there was no motion for a continuance and there is no cross-appeal.

By reason of the foregoing we find it unnecessary to pass upon the issues raised by plaintiffs’ second point.

Since the sole issues remaining for determination at the retrial are (1) whether under the discovery rule, plaintiffs may recover, and (2) the extent of the damages recoverable, we leave it to the trial court to determine whether, in view of the reduction in the number of issues, they may be tried together.

Reversed and remanded for further proeedings in accordance with this opinion.


author: Kolovsky, J. A. D.

text:
    PUBLIC SERVICE COORDINATED TRANSPORT, PLAINTIFF-RESPONDENT, v. MARLO TRUCKING CO., INC., A CORP., JOSEPH BRANCIFORTE ET AL., DEFENDANTS, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 10, 1969—Supplemental Briefs Submitted November 21, 1969 and December 3, 1969
    Decided January 14, 1970.

      Before Judges Confoed, Coloesteb and Kolovsky.

      Mr. Martin Kirsch argued the cause for Unsatisfied Claim and Judgment Fund Board.

      Mr. Walter 8. Cram er argued the cause for respondent.

      Mr. Michael B. Connor argued the cause for Atlantic City Electric Company, New Jersey Bell Telephone Company and Public Service Electric and Gas Company, Amici Curiae (Messrs. Lloyd, Megargee & Steedle, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

The Unsatisfied Claim and Judgment Fund Board (Fund) appeals from an order requiring it to pay all but the $100 statutory deduction (see N. J. S. A. 39:6-69) of the $1,500 judgment which plaintiff recovered against defendant Mario Trucking Co., Inc. (Mario), a New York corporation, and its driver defendant Wilkerson in a property damage automobile negligence action.

On February 1, 1963, the date of the accident in Newark, New Jersey, which culminated in the negligence action, Mario was insured under a policy of automobile liability insurance issued by Nationwide Mutual Insurance Company (Nationwide) .

A letter written by Nationwide, a copy of which was attached to plaintiff’s affidavit on its application for an order directing payment from the Fund, and the affidavit of Nationwide’s district claim manager which plaintiff thereafter submitted, state that Nationwide had conducted its investigation of the accident under a nonwaiver agreement and that “at the conclusion of its inquiries” it had notified its insured Mario that it disclaimed coverage because notice of the accident had not been given it until March 14, 1963. Nationwide asserted that the insured had thus breached the condition of the policy calling for notice of the accident to be given as soon as practicable.

Plaintiff did not sue Nationwide. In its application under N. J. S. A. 39 :6—69, 70 and 71 seeking an order for payment from the Fund, after referring to Nationwide’s disclaimer, plaintiff averred that

Therefore, the Judgment debtor was for practical purposes without insurance at the time this action was instituted, at the time judgment was obtained and remains so as to the plaintiff, Public Service Coordinated Transport.

The proofs as to the disclaimer were submitted in purported compliance with plaintiff’s obligation under N. J. S. A. 39:6-70(f) to show that

The judgment debtor at the time of the accident was not insured under a policy of automobile liability insurance under the terms of which the insurer is liable to pay in whole or in part the amount of the judgment.

The trial court rejected the Fund’s contention that under Wormack v. Howard, 33 N. J. 139 (1960), it could not be said that there was no liability insurance in effect unless and until plaintiff instituted an action against Nationwide and was unsuccessful therein. Citing Gilbert v. Unsatisfied Claim, etc. Board, 85 N. J. Super. 143 (App. Div. 1964), certif. den. 44 N. J. 403 (1965), the court ruled "that the evidence adduced by the plaintiff disclosed a bona fide disclaimer” by Nationwide so that plaintiff was entitled to the order directing payment out of the Fund.

Implicit in the trial court’s citation of Gilbert was its finding that the insurance policy was executed and delivered to Mario in New York, so that the Jaw of that state governed the rights of the parties under the insurance contract. See Gilbert, supra, at 149; Kraynick v. Nationwide Ins. Co., 72 N. J. Super. 34, 38 (App. Div. 1962) ; Buzzone v. Hartford Accident and Indemnity Co., 23 N. J. 447, 452 (1957). We find no merit in the suggestion by the Fund in its supplemental brief that the New Jersey law should be applied because the proofs do not establish that the policy was a New York contract. Mario’s principal place of business was in Brooklyn, New York; its driver was a New York resident, and the attorney who represented it generally was a New York attorney. Plaintiff asserts and defendant does not deny that the policy issued out of Nationwide’s New York office. The logical inference to be drawn from the only proofs submitted is that the policy was executed and delivered to Mario in New York.

Further, contrary to what the Fund argues, application of the New York law is not precluded because plaintiff did not plead the New York law. Under Evidence Rule 9(2) the court is authorized to take judicial notice of the New York law even without request by a party. Moreover, it is evident that in fact plaintiff relied in the trial court, as here, on the New York law as set forth in Gilbert, supra, at 149.

In Gilbert, which also involved a policy executed and delivered in New York, this court held that Wormack v. Howard, supra,

[did not require] suit to be brought against a debtor’s insurance carrier in every ease as a prerequisite to the entry of an order requiring the Fund to pay a judgment. * * * [and that] if the proofs before the trial court establish without dispute that the insurance carrier had a legal right to disclaim, such an action is unnecessary. 85 N. J. Super., at 150

In Gilbert it appeared that the first notice the defendant’s insurance carrier received of the accident was from a letter written by plaintiff’s attorney 11 months thereafter. This court affirmed the trial court’s ruling that under the law of New York "it was clear that the disclaimer was justified and that plaintiffs would be precluded from recovery in an action against the company on the policy.” 85 N. J. Super., at 149.

The New York cases cited in support of the latter statement indicate that the Gilbert court assumed — as did the parties to the present appeal until the question was posed by this court following oral argument and supplemental briefs ordered — that under New York law if the insured was barred from recovering on the policy by reason of late notice so, too, was the party injured by the insured’s negligence.

But that is not, and since 1939 has not been the law of New York. As Justice Botein said in writing for the Appellate Division in the leading case of Lauritano v. American Fidelity Fire Insurance Co., 3 A. D. 2d 564, 162 N. Y. S. 2d 553 (App. Div. 1957), aff’d o.b. 4 N. Y. 2d 1028, 177 N. Y. S. 2d 530, 152 N. E. 2d 546 (Ct. App. 1958) :

Today the injured party is no longer wholly dependent upon the diligence and conscientiousness of the person who caused him injury. It was precisely because accident victims could be deprived of all possibilities of recovery through the irresponsibility, obduracy or neglect of tho insured that § 167 of the Insurance Law was amended (L. 1939, ch. 882) to require every liability policy to contain:
“(c) A provision that nolice given by or on behalf of the insured, or written notice by or on behalf of the injured person or any other claimant, to any licensed agent of the insurer in this state, with particulars sufficient to identify the insured, shall be deemed notice to the insurer.
“(d) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured or by any other claimant thereunder if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.”
While the policies in suit did not contain such provisions, they must be construed as though they did conform to the statutory requirements (Insurance Law, § 143). Hence, it is clear that when the insured has failed to give proper notice, the injured party, by giving notice himself, can preserve his rights to proceed directly against the insurer.
All members of this court are in agreement that the standards by which the notice given by the injured party must be judged differ from those governing notice given by the insured. The statute having granted the injured person an independent right to give notice and to recover thereafter, he is not to be charged vicariously with the insured’s delay (Pitts v. Aetna Casualty & Surety Co., 2 Cir., 1954, 218 F. 2d 58, 62, certiorari denied [Aetna Casualty and Surety Co. v. Pitts,] 348 U. S. 973, 75 S. Ct. 535, 99 L. Ed. 757). When the injured party has pursued his rights with as much diligence “as was reasonably possible” the statute shifts the risk of the insured’s delay to the compensated risk-taker who can initially accept or reject those for whom it will bear such risks.
The injured person’s rights must be judged by the prospects for giving notice that were afforded him, not by those available to the insured. What is reasonably possible for the insured may not be reasonably possible for the person he has injured. The passage of time docs not of itself make delay unreasonable. Promptness is relative and measured by circumstance. [162 N. Y. S. 2d, at 556-557]

In view oí the Lauritano rule, it cannot be said that here it has been established “without dispute” (Gilbert, supra) that because Nationwide did not receive notice of the accident until 42 days after it occurred, it had a legal right to disclaim as against the plaintiff. Whether it had such right —• and we express no opinion thereon because Nationwide is not a party to these proceedings — is for determination in an action brought by plaintiff against Nationwide.

Plaintiff’s application for an order for payment should have been denied.

Although what we have said is dispositive of the appeal, since the Fund raised an additional objection to the order for pajunent, an objection which concerns not only plaintiff but also the amici curiae, we deal briefly with that issue. The Fund notes that plaintiff is a “self-insurer” and argues that as such it is barred from seeking payment from the Fund because N. J. S. A. 39:6-70 (l) requires the applicant for payment from the Fund to show that “[t]he application is not made by or on behalf of, any insurer by reason of the existence of a policy of insurance, whereby the insurer is liable to pay, in whole or in part, the amount of the judgment * *

We find no substance in the Fund’s contention. The fact that pursuant to N. J. S. A. 39 :6-52 plaintiff has been qualified as a self-insurer, thus eliminating the necessity that it carry automobile liability insurance insuring against liability to others, does not implicate N. J. 8. A. 39 :6-70, nor does it affect plaintiff’s right to resort to the Fund for reimbursement for damage done to its own motor vehicle by reason of the negligent operation of an uninsured motor vehicle.

The order for payment from the Fund is reversed.

       If the New Jersey law applied, Nationwide would have no right to disclaim even as against the insured since there is no showing that the insurance company suffered “a likelihood of appreciable prejudice” from the late notice. Cooper v. Government Employees Ins. Co., 51 N. J. 86, 94 (1968), decided January 22, 1968. seven months before plaintiff’s application for payment was filed.


text:
    THE PUBLIC HEALTH COUNCIL OF THE NEW JERSEY STATE DEPARTMENT OF HEALTH, PLAINTIFF-RESPONDENT. v. FRANKLIN TOWNSHIP BOARD OF HEALTH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellat e Division
    Argued December 8, 1969
    Decided January 15, 1970.

      Before Judges Kilkenny, Labeecqtje and Leonaed.

      Mr. Americo Antonelli argued the cause for appellant.

      Mr. Samuel D. Bornstein, Deputy Attorney General, argued the cause for respondent {Mr. Arthur J. Sills, Attorney General of Hew Jersey, attorney; Mr. Stephen Slcillman, Assistant Attorney General, Of Counsel).
   Per Curiam.

Defendant Board of Health of Franklin Township appeals from an order of the Public Health Council of the Hew Jersey Department of Health (hereinafter State Council) annulling certain provisions of Ordinance No. 0-1-69 B.H., passed by defendant on February 10, 1969.

The pertinent portions of the ordinance follow:

1. * * * no person, firm or corporation will be permitted to establish, maintain or continue a sanitary landfill or dumping place within the Township of Franklin.
3. No refuse, garbage, rubbish, ashes, trash, waste or other materials commonly described as refuse, originating outside of the corporate limits of the Township of Franklin shall be deposited in the Municipal landfill or dump or on any real property within the corporate limits of the Township of Franklin by any j>erson, firm or corporation.

Following passage, defendant in compliance with N. J. S. A. 26:1A—12 filed a copy of the ordinance with the State Commissioner of Health. Thereafter, the State Council, pursuant to N. J. S. A. 26:1A—12, held a hearing, due notice thereof having first been given to defendant, and determined that section 3 of the ordinance, as above quoted, concerned a matter which affected the health of territory beyond the jurisdiction of defendant. It thereupon entered an order annulling said section.

N. J. 8. A. 26 :1A-12 in pertinent part provides:

The Public Health Council may modify or annul any order, regulation, by-law or ordinance of any local board of health if, after giving reasonable notice and affording- an opportunity to be heard to the members of such local board, the council shall determine that such order, regulation, by-law or ordinance concerns a matter which affects the public health beyond the territory over which such local board has jurisdiction. (Emphasis added)

Generally, a municipality or its local board of health may legally prohibit the dumping within its borders of garbage originating outside thereof. Shaw v. Byram Tp., 86 N. J. Super. 598 (App. Div. 1965). See also Edgeboro v. East Brunswick Tp., 31 N. J. Super, 238, 245, 246 (Ch. Div. 1954); Earruso v. Board of Health, E. Hanover Twp., 120 N. J. L. 463, 468 (Sup. Ct. 1938). An ordinance containing such a prohibition is not in conflict with chapter VIII of the State Sanitary Code (N. J. S. A. 26 :lA-7 et seq.) which deals with ££Refuse Disposal.” Shaw v. Byram Tp., supra, at 604.

As we interpret N. J. S. A. 26 :1A-12, it does not abolish this right of a municipality to prohibit the dumping therein of garbage originating outside thereof. Rather, it gives the State Council the limited authority to modify or annul an ordinance of a local hoard of health which attempts to accomplish this purpose only in the instance where such an ordinance “affects the public health” beyond the territory over which such local board has jurisdiction. It is to be noted that the statute is not applicable to an ordinance passed by the governing body of the municipality.

In the instant case, a municipal landfill was established in Franklin Township in June 1964. A private landfill, operated by Spencer (Gus) Hodson and his wife, has also been in operation in the township for a number of years. The latter has served the solid waste disposal needs of the Township’s neighbors — the Boroughs of Magnolia, Woodstown and Newfield and the Township of Washington. Section 3 of the ordinance herein involved would prohibit the dumping of refuse from these municipalities in the municipal or private landfill located in Franklin Township.

At the hearing no representative of any of these four communities testified. Rather, the State Council relied upon a survey conducted by the State Department of Health. The following findings were made as to each:

The Borough of Magnolia in size consists of .99 square miles. There is no municipally held property other than ail 11-acre commercially zoned tract. This piece of property is in the process of being sold for private enterprise. If the 11 acres were to be utilized as a municipally operated landfill site, the projected life span for the population to be served would be approximately 10 years. There are no landfilling or incinerator operations conducted in this Borough and none have been planned due to the lack of available land.
The Borough of Woodstown, Salem County, consists of 1.49 square miles. There are no landfilling or incinerator operations conducted in this community.
The Borough of Newfield, Gloucester County, consists of 1.7 square miles. There is one privately operated small landfill. It was started in 19G4 with a projected life span of 9 years (1973). It consists of 3 acres, one of which is used for disposal purposes.
The Township of Washington consists of 22 square miles. There are no landfill or incinerator operations conducted in this community.

Thereupon, the State Council stated that:

It is axiomatic that public health of a municipality is immediately affected when that municipality, having no landfill operation of its own or land available for such, is prevented from disposing of solid wastes of its residents by a municipality which previously received the same. A corollary to this principle is the fact that garbage and other solid wastes which accumulate in a municipality because of lack of disposal facilities constitute an immediate threat to the health of the residents of adjoining municipalities.

Based upon these findings the State Council then concluded that section 3 of defendant’s Ordinance No. 0-1-69 B.H. “adversely affects public health beyond the jurisdiction of Pranldin Township” and it accordingly annulled that section of the ordinance.

Although we agree with the statement contained in the above-noted “corollary,” we are unable to conclude, upon the limited facts before us, that if these four municipalities are prevented from dumping their garbage and solid waste in Franklin Township that the garbage and waste of each will accumulate and constitute an immediate threat to the public health of the residents thereof. There are other material facts with regard to each of them that must be explored before such a conclusion can he reached. Therefore, we deem it essential to remand this matter to the State Council for the taking of further testimony. At the remand hearing representatives of each of the four municipalities involved should he called, by subpoena or otherwise, to testify directly as to the situation in their respective communities, particularly as to the following:

1. Are there other landfills available and, if so, the distance thereto?

2. Are there any incinerator operations available and, if so, the distance thereto?

3. What is the status of the 11-acre municipally-owned tract in Magnolia? Why should it not he used as a landfill in that borough for the next 10 years ?

4. What is the status of the landfill operated in Newfield? Is it being presently used as a landfill and, if so, what is its projected life span?

5. Has any of these municipalities planned a landfill or an incinerator to dispose of their own garbage or solid waste ? If not, why not?

6. What alternative plan of garbage and solid waste disposal would each employ if they could not deposit the same in the landfill in Franklin Township?

Defendant may cross-examine any such representative and may also offer rebuttal evidence pertinent to the issue herein involved. Following the presentation of evidence, the State Council shall make separate detailed findings of facts and conclusions as to Magnolia, Woodstown, Newfield and Washington, and it may, if necessary, amend or supplement its prior findings, conclusions and order.

Remanded to the State Council for a further hearing in accordance herewith. Jurisdiction retained.


text:
    TOWNSHIP OF EAST BRUNSWICK, PLAINTIFF-RESPONDENT, v. ANGELO MALFITANO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1969
    Decided January 16, 1970.

      Before Judges Kilkenny, Labbecque and Leonabd.

      Mr. Robert 8. Miller argued the cause for appellant.

      Mr. Martin R. KravariJc argued the cause for respondent (Messrs. Seleslcy <& KravariJc, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant appeals from his conviction for interfering with a police officer in the performance of his duty, in violation of a local ordinance.

The matter was submitted to the court on an agreed statement of facts which may be summarized as follows:

On February 28, 1969 a Mr. Hynes phoned the police complaining that a lumber truck had just driven onto his driveway and across a corner of his property to deposit a load of lumber at a nearby construction site. Defendant, who was a supervisor of a company which was constructing homes in the area, had directed the truck driver to do so. Upon the arrival of a policeman he approached defendant, advised him that Hynes intended to swear out a complaint against him for trespassing, and requested his name and address. When defendant refused to give either he was arrested for violation of a borough ordinance which forbade interference with a police officer in the performance of his duty. He was subsequently convicted of trespassing, in violation of N. J. S. A. 2A:170-31, and of violating the ordinance. There was no appeal from the trespass conviction.

In the context of the stipulated facts we hold that the judgment of conviction was well-founded.

The ordinance provided that “Ho person shall resist, obstruct or interfere with any township officer * * * in the performance of his duty, nor shall any person disobey the lawful orders or instructions of any such officer * * Defendant urges that, properly construed, the ordinance forbade only actual physical interference with the police. We disagree. The interference which the ordinance prohibited encompassed actions calculated in any appreciable degree to hamper or impede the police in the performance of their duty as they saw it. State v. Taylor, 38 N. J. Super. 6, 29-30 (App. Div. 1955). Actual physical interference with the police officer was not a prerequisite to conviction. Id. at p. 29. Cf. Commonwealth v. Rhone, 174 Pa. Super. 166, 100 A. 2d 147, 148-149 (Super. Ct. 1953); State v. Johnson 134 W. Va. 357, 59 S. E. 2d 485, 487 (Sup. Ct 1950).

People v. Schanbarger, 24 N. Y. 2d 288, 300 N. Y. S. 2d 100, 248 N. E. 2d 16 (Ct. App. 1969) on which defendant principally relies, is factually distinguishable in that there defendant was accosted while walking on a public highway in a situation which the court held afforded no grounds for a reasonable suspicion that he was engaged or about to engage in a crime. Here the officer was answering a police call involving a complaint by a citizen against defendant for trespassing. The officer considered, and properly so, that his duty required him to obtain defendant’s name and address for the purpose of preparing the necessary complaint and summons. In declining to comply with this reasonable request defendant interfered with the officer in the performance of his duty.

Defendant’s arrest did not infringe upon the right “to be let alone,” Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), which he invokes. Nor do we find any violation of due process.

Affirmed.