author: Seidman, J. A. D.

text:
    GERALDINE TIGER AND RAYMOND TIGER, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. AMERICAN LEGION POST NO. 43 AND LEONARD CLARK, DEFENDANTS-RESPONDENTS, AND RONALD M. HEYMANN, DIRECTOR OF MOTOR VEHICLES OF STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1973
    Decided October 30, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Thomas P. McHugh argued the cause for defendant-appellant Ronald M. Heymann, Director of Motor Vehicles of New Jersey (Messrs. Gurry & Conlan, attorneys).

      Mr. Peter A. Benz argued the cause for plaintiffs-respondents.

      Mr. John J. O’Donnell argued the cause for defendant-respondent American Legion Post No. 43 (Messrs. O’Donnell, Leary & D’Ambrosio, attorneys), and also for defendant-respondent Leonard Clark (Mr. Thomas H. Green, attorney) .
   The opinion of the court was delivered by

Seidman, J. A. D.

This appeal involves a personal injury negligence action brought by plaintiff Geraldine Tiger and her husband against American Legion Post No. 43 (Post), its employee and bartender Leonard Clark, and the Director of the Division of Motor Vehicles. She claimed that the American Legion Post, through the bartender, negligently served her alcoholic beverages while she was visibly intoxieated, thus proximately contributing to her being struck and injured by a hit-and-run vehicle. Eecovery was sought from the Director of the Division of Motor Vehicles pursuant to N. J. C. A. 39 :6-78, the Unsatisfied Claim and Judgment Fund Law, because of the alleged negligence of the unknown driver. Her husband sued per quod.

All defendants charged her with contributory negligence. No cross-claims were asserted among themselves, but the Post and Clark counterclaimed against Mr. Tiger for indemnification and contribution because of his negligence in permitting his wife to go to the bar operated by the Post.

At the close of the evidence defendants Post and Clark moved to dismiss the complaint on the ground that there was no proof that their alleged negligence proximately caused plaintiff’s injuries. Plaintiff offered no resistance to the motion, but the Director opposed it. The motion was granted.

The trial judge denied the Director’s motion for dismissal, sought on the grounds that plaintiff had not proved the involvement of a hit-and-run vehicle, that she had failed to make all reasonable efforts to identify the alleged hit-and-run driver, and that she was guilty of contributory negligence as a matter of law.

Plaintiff’s motion to strike the defense of contributory negligence was granted.

The jury returned a verdict in favor of Mrs. Tiger in the sum of $7,300 and one in favor of her husband for $3,200. Subsequently, on motion and after hearing argument, the trial judge entered an order directing the Fund to pay $10,000, plus costs and interest under R. 4 :58.

The Director appeals, contending that the trial judge erred in (1) denying his motion for dismissal, (2) striking the defense of contributory negligence and refusing to charge it, (3) granting the dismissal motion of the co-defendants (4) failing and refusing to charge the jury on plaintiff’s burden to establish she was struck by an unidentified vehicle, (5) ordering payment by the Unsatisfied Claims and Judgment Fund even though plaintiff had failed to make reasonable efforts to identify the owner or driver of the unknown vehicle, and (6) allowing plaintiff costs and interest on the judgment.

From our canvass of the record we believe there are only two substantial issues in this case, namely, whether the trial judge properly struck the defense of contributory negligence and Whether the Director has standing to challenge the dismissal of the complaint as to the co-defendants.

The trial disclosed that plaintiff was admittedly an alcoholic who tended to black out when drinking and who had been under medical treatment for the problem. She testified that on Sunday, February 23, 1969, the date of the accident, she intended to go to an Alcoholics Anonymous meeting, but decided to stop first at the American Legion hall, arriving about 3 p.m., accompanied by her brother and a boarder who lived in her home. (She was known at the hall as a heavy drinker and had been seen there in an intoxicated condition on other occasions.) Instead of the Coca-Cola she said she intended to have, she ordered a “Seven and Seven” from defendant Clark, the bartender. She could not recall whether it was after that drink or a second one, but she remembered nothing thereafter until she awoke in the hospital.

Whether Clark served her an alcoholic beverage and, if so, how much, was in dispute. There was testimony of his serving her three drinks and of her becoming belligerent and abusive and refusing to leave the hall. Clark, however, testified he came on duty at about 6 p.m. and served her only one rye and ginger ale, refusing her any more because she was drunk.

There were no eyewitnesses to the accident and almost all the evidence pertaining to it was circumstantial. Plaintiff’s brother left the hall about 4 p.m., taking with him the automobile in which they had come. Mrs. Tiger, when last seen in the hall, about a half-hour before the accident occurred, was in an intoxicated state. She was found about 9 p.m., badly injured and lying face down in the roadway at the edge of the driveway leading to the hall. It was snowing heavily. Her coat was covered with grease, dirt and stone particles, and her wristwatch was nearby. Her purse and pieces of her eyeglass lens were found in the driveway approximately 20 feet from the door. One of the officers who spoke to her at the hospital said she told him she had not wanted to wait for her husband, that she remembered walking down the driveway, and that she was struck either in the driveway or at the end of it. A medical witness was of the opinion that her injuries were “’compatible with a car-type injury”.

The proofs were understandably meager; nevertheless, viewing the circumstances in their totality and giving plaintiffs the benefit of all favorable inferences from them, sufficient circumstantial evidence existed from which a jury could reasonably have concluded that Mrs. Tiger had been struck by some kind of moving vehicle either in the driveway or at the end of it, and been thrown or dragged to where she was found.

Other than the falling snow, there was no evidence of anything to obstruct a motorist’s view of the road. But the weather conditions, as well as the absence of sidewalks, should have alerted the unknown driver not only to the fact that pedestrians might be walking at the edge of the road but also to the fact that the limited visibility required diligent observation. The jury could reasonably have inferred that the driver either never saw plaintiff or saw her too late to avoid striking her. The issue of the driver’s negligence was, thus, properly submitted to the jury for determination. Jones v. Strelecki, 49 N. J. 513, 517 (1967). Moreover, since the driver failed to stop, there is the further inference or consciousness of lack of care and of liability for the occurrence. State v. Gill, 47 N. J. 441, 443 (1966); Jones v. Strelecki, supra, 49 N. J. at 519. The motion for a judgment of dismissal was properly denied.

We also perceive no merit to the assertion that plaintifE failed to make reasonable efforts to identify the unknown vehicle or its driver. As for the contention that the trial judge failed to charge the jury that plaintiff had the burden of proving she was struck by an unidentified vehicle, we observe there was no objection to the charge.

The Director argues further that plaintiff was guilty of contributory negligence as a matter of law; or alternatively, that her conduct was such as to raise a factual issue for the jury’s determination, and the trial judge erroneously struck the defense of contributory negligence.

Only in the clearest case of contributory negligence, where a contrary hypothesis is not fairly admissible, does the issue become one of law for the court to resolve. Battaglia v. Norton, 16 N. J. 171, 179 (1954); Poland v. Parsekian, 81 N. J. Super. 395, 402 (App. Div. 1963). The Director’s assertion that plaintifE was contributorily negligent as a matter of law is without merit.

The substantial issue is whether the trial judge properly struck the defense of contributory negligence on the ground that there was no evidence that her intoxication was a proximate cause of the accident and of her resulting injuries. We are convinced that the defense should not have been stricken.

PlaintifE was an alcoholic with an admitted tendency to black out after drinking. That she was in a state of intoxication at the time of the incident is not in dispute. While carelessness is not necessarily to be inferred from mere proof of intoxication, a jury might find from the evidence that by voluntarily over-indulging in intoxicating liquor, with knowledge of the effect it would have upon her, plaintiff allowed her faculties to become impaired to the extent that she was unaware of what was happening and thereby exposed herself to danger and injuries which a sober person of ordinary prudence and foresight would have avoided. A jury might also find that plaintiff’s condition was such that she was unable to detect or comprehend the approach of the vehicle which struck her, either by hearing it or observing the beam of its headlights, or to step out of the way, if she was conscious of impending danger. Bageard v. Consolidated Traction Co., 64 N. J. L. 316 (E. & A. 1899); Hoppock v. Easton Transit Co., 77 N. J. L. 342, 343 (Sup. Ct. 1909); Petrone v. Margolis, 20 N. J. Super. 180, 188 (App. Div. 1952); Anslinger v. Martinsville Inn, Inc., 121 N. J. Super. 525, 534 (App. Div. 1972), certif. denied 62 N. J. 334 (1973).

In short, voluntary intoxication does not excuse acts or omissions which fail to conform to the conduct of one who is reasonably prudent and sober. Tabor v. O’Grady, 59 N. J. Super. 330, 339 (App. Div. 1966).

There were issues of contributory negligence and proximate cause which should have been submitted to the jury for determination. Not to do so was reversible error.

A more difficult problem is presented by the Director’s assertion that the trial court erred in granting co-defendants’ motion for dismissal.

There was sufficient evidence from which a jury could reasonably find that the bartender served liquor to plaintiff when he knew or should have known she was visibly intoxicated, and that he thereby created an unreasonable risk of harm and engaged in negligent conduct. Rappaport v. Nichols, 31 N. J. 188, 202-203 (1959). In such case the bartender and the American Legion Post might be held answerable for the injuries which resulted in the ordinary course of events from their negligence. Id. at 203. Contributory negligence would not be available as a defense. Soronen v. Olde Milford Inn, Inc., 46 N. J. 582, 589 (1966). Since it is reasonably foreseeable that a visibly intoxicated person might not be able to take care of herself or himself upon leaving the premises and thus become exposed to danger, it would be for the jury to determine whether co-defendants were negligent and if such negligence proximately caused or contributed to plaintiff’s resulting injuries. The trial judge incorrectly ruled that there was no proof that co-defendants’ negligence proximately caused plaintiff’s injuries.

The problem here, however, is not merely whether it was error to grant co-defendants’ motion, but rather whether the Director is entitled to urge the error and seek a reversal of the judgment in their favor. The issue is not discussed in the briefs submitted and our own research has disclosed no case precisely in point.

Generally, one defendant in a tort action may not assert as a ground of appeal error favorable to a co-defendant unless that error also prejudicially affected his own defense to plaintiff’s action. Donofrio v. Farr Lincoln Mercury, Inc., 54 N. J. Super. 500, 504-505 (App. Div. 1969). The rationale is that in such case the issue is whether he is liable and not whether the other defendant is. Rose v. Squires, 101 N. J. L. 438, 439 (Sup. Ct. 1925), aff’d 102 N. J. L. 449 (E. & A. 1925). See also Malinauskas v. Pub. Service Interstate Transp. Co., 6 N. J. 269, 275 (1951). A right of appeal from a judgment exists only in one who is aggrieved or prejudiced thereby, 4 Am. Jur. 2d, Appeal and Error, § 182 at 691, or whose personal or pecuniary interest, or property right, is affected. In re Lazarus, 81 N. J. Super. 132, 136 (App. Div. 1963). Thus, for example, a defendant may appeal a judgment favoring a co-defendant if he has asserted a cross-claim for contribution against that party. Donofrio v. Farr Lincoln Mercury, Inc., supra, 54 N. J. Super. at 505.

In a suit involving a hit-and-run -situation, where the Director of the Division of Motor Vehicles is impleaded solely by virtue of the Unsatisfied Claim and Judgment Fund Law, N. J. S. A. 39 :6-80, and one or more additional alleged tortfeasors are joined as defendant (s), it is evident that the right to assert a claim for contribution is not available to or against the Director. This is because a judgment against the Director is reducible by any amount which the plaintiff may have received from known joint tortfeasors. N. J. S. A. 39 :6-83.

Based upon considerations of public policy and justice, wo think that the inability oí the Director to assert an adverse claim against a co-defendant in this kind of case ought not to bar him from appealing a judgment favorable to that party.

The purpose of the Unsatisfied Claim and Judgment Eund is to provide a measure of relief to persons who sustain losses or injury inflicted by financially irresponsible or unidentified operators of motor vehicles, where such persons would otherwise be remediless. Dixon v. Gassert, 26 N. J. 1, 5 (1958). See Feliciano v. Oglesby, 102 N. J. Super. 378, 390-391 (Law Div. 1968). It should be noted that before a claimant is entitled to have a judgment paid from the Eund, he must show, among other things, that he has not recovered a judgment against any other person in an action arising out of the accident, or, if he has recovered such judgment, what amounts, if any, he has received by way of payment thereon. N. J. S. A. 39 :6-70.

If the Director is powerless to challenge the dismissal of the complaint against the co-defendants in this case and seek a reversal of the judgment, potentially culpable parties might escape having to respond in damages to the injured plaintiff, and the Eund would be required to pay the judgment, or so much of it as is within the statutory limit. Such result, it seems to us, would defeat the objectives of the statute.

Wo are convinced that in a ease such as this the Director is sufficiently adversely affected by the judgment of dismissal to qualify as an aggrieved party entitled to appeal therefrom.

We conclude that the judgments must be reversed and the cause remanded for a new trial. Consequently, there is no need to consider the Director’s further argument that the trial judge improperly allowed costs and interest on the judgment pursuant to R. 4 :58-1. But see Crudup v. Marrero, 57 N. J. 353, 356 (1971).

Reversed and remanded for a new trial, limited, however, in the case of defendant Director, to the issue of plaintiff's contributory negligence, and, in the case of defendants Post and Clark, to the issue of negligence (including of course, as to each, the related issue of proximate causé). Should plaintiffs prevail at the new trial against any or all of the defendants, judgments will be entered in the amounts previously awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    B & L MOTOR FREIGHT, INC., A CORPORATION OF THE STATE OF OHIO, ET AL., PLAINTIFFS-APPELLANTS, v. RONALD M. HEYMANN, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 15, 1973
    Decided November 2, 1973.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Dean A. Gaver argued the cause for the appellants (Hannoch, Weisman, Stern and Besser, and Mr. Morris Oppenheim, attorneys; Mr. Albert G. Besser, on the brief).

      Mr. Richard M. Conley, Deputy Attorney General, argued the cause for the respondents (Mr. George F. Kugler, Jr., Attorney General, attorney; Ms. Virginia Long Annich, Deputy Assistant Attorney General, of counsel).
   Per Curiam.

The judgment of the Chancery Division, 120 N. J. Super. 270 is affirmed essentially for the reasons set forth in the opinion of Judge Herbert.


author: Crane, J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF JOHN M. CAREW, DECEASED.
    Superior Court of New Jersey Appellate Division
    Submitted October 2, 1973
    Decided November 2, 1973.

      Before Judges Kolovsky, Fritz and Crane.

      Messrs. Loveland, Hughes & Garrett, attorneys for appellant (Mr. William J. Hughes, of counsel; Mr. Donald R. Charles, Jr., on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Ms. Virginia Long Annich, Deputy Assistant Attorney General, of counsel; Mr. Michael E. Goldman, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

This is an’ appeal from a determination of the New Jersey Transfer Inheritance Tax Bureau. Decedent was the president of and a 50% stockholder in a corporation known as Garden Motors, Inc. Decedent’s wife owned the remaining 50% of the stock. Among the assets of the corporation were two policies of insurance on the life of its president. In computing the value of the 50 shares of stock decedent bequeathed to his wife, the Bureau included the proceeds of the insurance policies as assets of the corporation.

The appellant, representative of the estate, 'contends that the proceeds of the life insurance policies should not have been included because N. J. S. A. 54 :34-4(f) exempts the proceeds of life insurance. Appellant also argues, in the alternative, although the contention was not advanced to the Inheritance Tax Bureau, that the corporation suffered a loss by reason of the death of its president and that such loss should have been taken into account in the evaluation of the corporate assets.

The New Jersey Transfer Inheritance Tax Act, N. J. S. A. 54 :34-1 et seq. imposes a tax upon the “transfer of property” by a variety, of means, including “by will.” In re Lichtenstein, 52 N. J. 553, 559 (1968). The tax is “computed upon the clear market value of the property transferred.” N. J. S. A. 54 :34-5. Under the New Jersey Administrative Code, N. J. A. C. 18:26-8.15(a) (7), the proceeds of life insurance held by a closely held corporation are to be included as an asset of the corporation in arriving at the value of the stock

The decedent died on January 14, 1971. The examiner used as a basis of valuation of the corporate stock a balance sheet dated December 31, 1970, including in his computations the proceeds of the insurance. The testimony before the hearing examiner revealed that the insurance policies were taken out by the corporation in 1955 and that the corporation paid the premiums which were treated as expenses of the corporation for accounting purposes until approximately five years before decedent’s death when on the advice of an accountant the premiums were charged against the distribution of earnings of the two stockholders.

In our view, the determination of the hearing officer was correct as was his reliance on N. J. A. C. 18 :26-8.15 (a) (7), supra. The Bureau did not seek to impose a tax on transfer of the insurance proceeds. They were transferred from the insurance company to the corporation which was the legal owner of the policies and was entitled to the proceeds. It is the transfer of the stock of the corporation by means of decedent’s will which was taxed.

N. J. S. A. 54:34—4 sets forth a number of classes of transfers which are exempt from the operation of the Transfer Inheritance Tax Act. Our construction of that section must be strict. Deubel v. Kervick, 33 N. J. 568, 574 (1960). In the instant case the exemption simply does not apply because the insurance policy proceeds were not the object of the imposition of the tax. Our conclusion accords with that reached under similar statutory provisions in New York, In re Reed, 243 N. Y. 199, 153 N. E. 47 (Ct. App. 1926), and in Wisconsin, In re Patton’s Will, 227 Wis. 407, 278 N. W. 866, 117 A. L. R. 140 (Sup. Ct. 1938).

The appellant on this appeal raises for the first time the contention that the insurance proceeds should be offset by the value to the corporation of the services of its president. The issue should not properly be entertained. Stoelting v. Hauck, 32 N. J. 87, 99 (1960). Moreover, on the record here, the only loss which the corporation could have suffered by reason of Mr. Carew’s death was an impairment of the value of the “good will” of its business. Even if there was such impairment, appellant has no cause for .complaint; the Bureau, in valuing the corporation’s assets, attributed no value to its “good will.”

Affirmed.


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

text:
    THE TAXPAYERS ASSOCIATION OF WEYMOUTH TOWNSHIP, INC., ET AL., PLAINTIFFS-APPELLANTS, v. WEYMOUTH TOWNSHIP, A MUNICIPAL CORPORATION, SIDNEY SIMON, T/A WEYMOUTH PARK ASSOCIATION, AND M & M LAND CO., A CORPORATION OF N. J., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 18, 1973
    Decided October 30, 1973.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Morton Feldman argued the cause for appellants.

      Mr. Clement F. Lisitski argued the cause for respondent Weymouth Township (Messrs. Shapiro, Brotman, Eisenstat & Capizola, attorneys).
    . Mr. Ronald I. Bloom argued the cause for respondents Sidney Simon and M & M Land Co. (Messrs. Finn, Rimm and Bloom, attorneys; Mr. Marvin N. Rimm, on the brief).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Plaintiffs appeal from a judgment which rejected their attack on the'validity of portions of two ordinances adopted by defendant township, designated respectively as ordinances 171 and 172 of 1971.

The challenged section of ordinance 171, adopted on July 7, 1971 as an amendment of the township’s zoning ordinance, reads as follows:

Section 2 — Block 86, Lots 1, 2 and 3, shall be rezoned Trailer and Mobile Home Districts.

Block 8'6, Lots 1, 2 and 3, comprise a 142-acre tract owned by defendant M & M Land Company, a corporation owned .by defendant Simon, who concededly was a moving force in procuring the passage of the ordinances.

Ordinance 172, which was adopted on June 25, 1971, is entitled,

AN ORDINANCE REGULATING THE PARKING AND LOCATION OF MOBILE HOME PARKS AND REGULATING AND LICENSING THE ESTABLISHMENT, LOCATION, MAINTENANCE AND CONDUCT OF MOBILE HOME PARKS IN THE TOWNSHIP OF WEYMOUTH, COUNTY OF ATLANTIC AND STATE OF NEW JERSEY, AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF.

That ordinance, in addition to providing for the licensing of “Mobile Home Parks” and setting forth regulations relating to their maintenance and physical characteristics — including a requirement that each contain a minimum of 140 acres —• reads in section XXIII as follows:

SECTION XXTil. PROVISIONS FOR, ELDERLY FAMILIES.
The Mobile Home Park operator shall provide one hundred (100%) per cent of the total number of mobile homes in the park for elderly persons or elderly families. Trailer parks are generally prohibited in the Township. A special exception to fulfill the needs of senior citizens, as defined by this ordinance, has been made by the township. Occupancy by any persons other than elderly or elderly families is hereby prohibited.

The ordinance, as amended by ordinance 175-1971, defines “elderly persons” and “elderly families”:

(c) Elderly Persons — Means persons who are 52 years of age or over.
(d) Elderly Families — Means families, the head of which, or his spouse, is 52 years of age or over, the youngest spouse is 45 years of age or over and all children are over 18 years of age.

At the outset, it is evident that there is no substance to the argument of counsel for respondents Simon and M & M Land Co. that ordinance 172-1971 “was an ordinance adopted to regulate the operation of a mobile trailer park and had nothing to do with zoning.” In the' aspects with which we are concerned, the two ordinances must he considered together.

Indeed, ordinance 171 would be meaningless without reference to ordinance 172 since neither ordinance 171 nor the zoning ordinance which it amended contains either a definítion of the term “Trailer and Mobile Home District” or any other provisions relating thereto. Those provisions are found only in ordinance 172.

It is only because of the unique characteristics of trailers and mobile homes, as contrasted with permanent residential buildings, that our courts have held that ordinances prohibiting trailer camps or the use of trailers as residences in a zoning district constitute not only a valid exercise of the municipality’s zoning power but also of the municipality’s general police power. Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959); see also Hohl v. Readington Tp., 37 N. J. 271 (1962); Vickers v. Tp. Com. of Gloucester Tp., 37 N. J. 232 (1962).

Here, however, the challenged prohibitions and limitations rf the municipal ordinance — those embodied in the portions of ordinance 172 quoted above, which would limit those who may live in a specified zoning district of the municipality — are unrelated to the unique characteristics of trailers and mobile homes. They may be upheld only if they constitute a valid exercise of the zoning power granted to municipalities by the enabling statute, just as would be the case if the ordinance sought to limit those who majr live in one-family homes in a zoning district.

The quoted ordinance provisions would limit occupancy in a specified zoning district of the municipality to those 52 years of age or over, and those under that age but over 18 years old who are members of a family “the head of which, or his spouse, is 52 years of age or over.”

Hothing in N. J. S. A. 40 :55-30, which grants zoning powers to municipalities, authorizes a zoning regulation-limiting the age of those, whether it be individuals or families, who may reside in a structure, be it a house or mobile home, otherwise permitted in a particular zoning district.

All that a municipality may validly be concerned with in the exercise of its zoning power is the physical use of lands and structures thereon. Bridge Park Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971).

As this court said in Bridge Park Co. v. Highland Park, in striking down an ordinance provision which would have barred conversion of an apartment house into condominium ownership:

A quick reading oí [A. J. S. A. 40 :55-30] discloses no power granted to a municipality to regulate the ownership of buildings or the types of tenancies permitted. It is obvious that each phrase in the statute refers either to the type of construction or the use permitted on real property within the confines of a municipality.
* * * We conclude that the word “use,” as contained in the statute above, does not refer to ownership but to physical use of lands and buildings. [Emphasis added]

The physical use of a mobile home in a trailer and mobile home district is the same irrespective of the age of the head of the family occupying it or those making up the family unit. A municipality may not regulate the age or makeup of the family unit permitted to reside in the structure. Cf. Bridge Park Co. v. Highland Park, supra; Molino v. Mayor, etc., Glassboro, 116 N. J. Super. 195 (Law Div. 1971); City of Des Plaines v. Trottner, 34 Ill. 2d 432, 216 N. E. 2d 116 (Sup. Ct. 1966); Hinman v. Planning and Zoning Comm’n, 26 Conn. Sup. 125, 214 A. 2d 131 (Ct. Com. Pl. 1965) ; see also Kirsch Holding Co. v. Manasquan, 59 N. J. 241 (1971).

Further, whether the regulations here involved he considered as an attempted exercise of the municipality’s zoning power or of its general police power to regulate trailer parks, we are satisfied that they are unreasonable, arbitrary and discriminatory. Cf. Molino v. Mayor, etc., Glassboro, supra; Kirsch Holding Co. v. Manasquan, supra.

The only suggestion in the record in support of the discriminatory feature of the ordinance is to he found in testimony supporting the statements in the ordinance’s "declaration of policy and purpose” that there is a necessity for “providing of dwellings which the elderly who need housing can afford” and that “these needs and requirements can at least be partially met through use of the mobile home park.” (It is of interest that despite the reference to the economic status of the occupant, the ordinance classification refers only to his age; no consideration is given to the question of whether a prospective occupant of a mobile home over the age of 52 years in fact can afford to live in a permanent home or apartment.)

But the same considerations which allegedly motivated the adoption of the ordinances in this case are equally applicable to young married couples or other individuals under the age of 52 years whose incomes are low. To ■ deny the latter groups the right to occupy homes in a trailer park operated for profit while granting that right to the former is invidious discrimination, proscribed by the equal protection clause of the Fourteenth Amendment.

“The equal protection clause of the Fourteenth Amendment secures equality of right by forbidding arbitrary discrimination between persons similarly circumstanced * * *.” Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 418 (1952); Levy v. Louisiana, 391 U. S. 68, 71, 88 S. Ct. 1509, 1511, 20 L. Ed. 2d 436 (1968); see also 101 C. J. S. Zoning § 28 at 733.

Contrary to what defendants argue, justification for such discrimination with respect to those who may reside in trailer parks operated for profit is not to be found in existing legislation, N. J. S. A. 55 :14A-1 et seq. and N. J. S. A. 55 :141-1 et seq., pursuant to which housing has been provided for the elderly. Neither statute has any application either in law or principle to the ordinances here involved.

N. J. S. A. 55 :14I-1 et seq., the “Senior Citizens Nonprofit Rental Housing Tax Law,” is an act embodying the grant of partial tax exemption to a nonprofit housing project for elderly persons,

* * * developed, erected, and operated by a nonprofit corporation of New Jersey, under the Senior Citizens Housing Loan Program, authorized by section 202 of the Federal Housing Act of 1959, as amended, for the purpose of providing nonprofit rental housing for the elderly families and elderly persons as therein defined * * * [N. J. S. A. 55 :141-3(c)]

The statute defines “nonprofit corporation” as “any corporation formed under the general provisions of Title 15 of the Revised Statutes, no part of the net earnings of which inures to the benefit of its members.” N. J. S. A. 55 :141-3(d).

Nor does the “Local Housing Authorities Law,” N. J. S. A. 55 :14A-1 et seq., furnish any support for defendants’ arguments. That statute, which authorizes the construction of public housing projects, prohibits the operation of any project for profit and permits the rental of housing accommodations in the project “only to persons of low income and at rentals within the financial reach of such persons of low income.” N. J. S. A. 55 :14A-8.

In view of our conclusion that the ordinances are invalid for the reasons above stated, we find no need to discuss appellants’ additional contention that ordinance 171-1971, limiting the “trailer and mobile home district” to the 142-acre tract owned by Simon, constituted spot zoning, a contention rejected by the trial court.

The judgment dismissing plaintiffs’ complaint is reversed and the cause remanded for entry of a judgment declaring the two ordinances invalid.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL CAPANO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 24, 1973
    Decided November 5, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Frank R. Krack, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Mr. Marc J. Friedman, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

After a jury trial defendant was found guilty of escape from Leesburg Prison Farm, contrary to N. J. S. A. 2A :104-6. On appeal he contends that three comments made by the prosecutor during summation denied him a fair trial. No objection was made to any of the remarks at trial. Therefore, they are reviewable only under the standard of the plain error rule. R. 2:10-2; State v. Farrell, 61 N. J. 99, 106 (1972).

Two of the comments in question referred to the nature of the Leesburg prison, as a minimum security prison, and the consequences to the community at large if prisoners failed to abide by its more liberalized rules. Such remarks were part of a fair review of the evidence adduced at trial. Furthermore, they came within the prosecutor’s right to emphasize within reason the social consequences of the alleged crime. State v. Knight, 63 N. J. 187, 193-194 (1973). The third comment related to defendant’s obstreperous behavior during trial. In the face of the overwhelming evidence of guilt, it is impossible to say that this brief comment had the capacity to deny defendant a fair trial. State v. LaPorte, 62 N. J. 312, 318 (1973).

Defendant also contends in a pro se supplemental brief that he was denied effective assistance of counsel. Prior to the start of trial defendant vigorously objected to the participation of assigned counsel. He was thereafter permitted to have a fellow inmate conduct the trial as lay counsel. (While we recognize a trial judge has discretion over the conduct of a trial, we expressly disapprove of the practice of permitting lay counsel to participate in a trial.) Assigned counsel remained at counsel table throughout the trial, was available for consultation and did assist defendant during trial. The situation about which defendant complains was of his own creation. He cannot now take advantage of it. State v. Morse, 106 N. J. Super. 1 (App. Div. 1968); State v. Parsons, 83 N. J. Super. 430 (App. Div. 1964). Cf. State of Illinois v. Allen, 397 U. S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

Affirmed.


author: Lynch, J. A. D.

text:
    PAUL CASHEN AND IRENE CASHEN, HIS WIFE, PLAINTIFFS-APPELLANTS, v. FRANK SPANN, ROBERT BICKLEY, CHARLES M. EGAN, JR., JOHN DUNNE, INDIVIDUALLY AND AS SERVANT, AGENT OR EMPLOYEE OF CHARLES EGAN, JR., “JOHN DOE,” BEING A FICTITIOUS NAME OF THE “RELIABLE INFORMER,” NEW JERSEY BELL TELEPHONE COMPANY, ANTHONY DE BIASI, THE COUNTY OF MORRIS AND THE BOROUGH OF WHARTON, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1973
    Supplemental material filed. May 14, 1973, June 4, 1973 and June 28, 1973—
    Decided November 2, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Joseph S. Accardi argued the cause for appellants (Messrs. Accardi & Koch, attorneys; Mr. Conrad N. Koch on the brief; Mr. Joseph S. Accardi on the supplemental brief).

      Mr. William T. McElroy argued the cause for respondents Spann, Bickley, Egan, Dunne, DeBiasi and the County of Morris (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys; Mr. Edward B. Deutsch on the briefs).

      Mr. Joseph A. Hoffman argued the cause for respondent New Jersey Bell Telephone Company.

      No one appeared in behalf of respondent “John Doe.”
   The opinion of the court was delivered by

Lynch, J. A. D.

On June 19, 1970 detectives of the Morris County Prosecutor’s Office and police of the Borough of Wharton, armed with a search warrant and seeking evidence of bookmaking and lottery, broke into the home of plaintiffs. As we now know, the raid was a bizarre mistake. Plaintiffs, a relatively elderly retired couple, were completely innocent of any wrongdoing, and utterly without connection with gambling or other illegal activity of any kind.

By an amended complaint plaintiffs sued Prosecutor Egan, detectives Bickley, Spann, Dunne and DeBiasi, one “John Doe,” being a fictitious name of a “reliable informer” (who allegedly gave information that plaintiff Paul Cashen was involved in gambling activities), the New Jersey Bell Telephone Company (Telephone Company), the County of Morris (county) and the Borough of Wharton (borough). The amended complaint against the county, defendant officials and Telephone Company, charged false arrest and imprisonment, libel and slander, invasion of privacy and assault and battery. It also charged that the Telephone Company, through its employees, negligently and wantonly supplied false information to the prosecutor’s detectives with respect to telephone calls made to plaintiff Paul Cashen.

The answers of defendant prosecutor, detectives and the county set up, among other things, the defenses of immunity and failure of plaintiffs to state a claim upon which relief may he granted. Those defendants moved for summary judgment in their favor under, as they stated, “the doctrine of judicial immunity and its application covering conduct in the realm of the public prosecutor.” Defendant Telephone Company also moved for summary judgment, claiming that it acted in the premises in compliance with subpoena and other lawful orders of the prosecutor and hence was cloaked with the same immunity as the prosecutor. The company also claimed that provisions of the Communications Act of 1934, § 605 as amended, 47 U. S. C. § 605 (1968), absolved it from liability. The trial court granted summary judgment in favor of all defendants. Plaintiffs appeal from said judgment except, as said above, no appeal has been taken from the summary judgment which had earlier been granted in favor of the borough.

Plaintiffs also claim that the error of the trial court in granting summary judgment to defendants subsumed the court’s further error in refusing to compel defendants to disclose the identity of the so-called “reliable informer” referred to in the affidavit of defendant Bicldey which was the basis upon which the search warrant was issued.

The basic reasoning of the trial judge in granting summary judgment in favor of defendant prosecutor and detectives was that since, in his view, there was no showing of malice on their part or that they acted for “personal reasons of their own or distinct from their required duty,” they were immune from suit. Since the County of Morris was sued on the theory that such officials were its agents, the county was likewise absolved.

As to defendant Telephone Company, the court held there was no liability because it acted pursuant to subpoena and, under the decisions in United States v. Covello, 410 F. 2d 536 (2 Cir. 1969), and Nolan v. United States, 423 F. 2d 1031 (10 Cir. 1969), and 47 U. S. C. A. § 605, the company was not liable.

In ruling that plaintiffs were not entitled to disclosure of the identity of the “reliable informer,” the trial court held that the policy considerations which dictate nondisclosure of such information in criminal cases, expounded in State v. Burnett, 42 N. J. 377 (1963), and other cases, are likewise controlling in this civil case and preclude such disclosure.

The affidavit upon which the issuance of the search warrant was based was sworn to by defendant Bickley. It read, so far as here pertinent, as follows:

Oil Monday, June .15, 1970, Det. Spann checked with the N. J. Bell Telephone Company as to phone calls made from 335-6508 and 539-6548, and it was learned from the Telephone Company that numerous calls were made to the residence at 9 Crater Avenue in Wharton, N. ,T., telephone number 366-3115 and telephone number 328-5364, and also telephone number 743-1133 in Bloomfield, New Jersey. A further check with the N. J. Bell Telephone Company revealed that the telephone number 366-3115, is listed to one Paul Cashen, 9 Grater Avenue, Wharton, New Jersey; telephone number 32S-5634 is listed to the XT. S. Government, Picatinny Arsenal, Dover, N. J. Building 84 QAD and in control of Paul Cashen; and telephone number 743-1133 is listed to one, Lamont Curran, 29 Washingtion Road, Bloomfield, New Jersey. Xnv. Bickley called a person at Picatinny Arsenal who has given reliable information relative to gambling activities there and was advised by this informant that one, Paul Cashen, employed at Picatinny Arsenal, was accepting horse bets and number bets from fellow employees at the Arsenal, and that at least twice a day would call from one or two pay phones in Building 94 to someone with these bets. He also stated that he would keep notations in a small black notebook which he kept constantly on his person to record said bets.
On Monday, June 15, 1970, a further inquiry was made with the Telephone Company, and it was learned from this that numerous phone calls were made from the Raymond Dragos residence to Paul Cashen, to Bloomfield and numerous phone calls from John Peragallo’s residence to Paul Cashen, to Bloomfield.

Telephone number 335-6508 was listed to Mrs. Virginia Peragallo, wife of John Peragallo, otherwise identified in the affidavit as being engaged in taking horse and number bets. Telephone number 539-6548 was listed to Kaymond Dragos, also identified in Bickley’s affidavit as engaging in taking of such bets. Concededly the information contained in Bickley’s affidavit was false in the following respects: (1) no phone calls were ever made to Cashen’s home by Peragallo or Dragos; (2) telephone number 328-5634 at Building 94 QAD at Picatinny Arsenal was not in control of Paul Cashen at the time involved. Cashen had worked at Picatinny Arsenal for 38 years but had retired on October 31, 1969 and had been at the Arsenal on only one day since then, in January 1970, as 'he drove through the Arsenal grounds to go fishing; (3) the information allegedly given to Biekley that (a) Cashen was accepting horse and number bets at Picatinny, and (b) a least twice a day called from one or two pay phones in Building 94 with the bets, was false; (4) the information allegedly given by a representative of the Telephone Company that numerous phone calls were made to Cashen from the residences of Dragos and Peragallo was also false.

Detective Spann testified on deposition that on June 15, 1970 he called the Morristown office of the Telephone Company and was told that calls were being made to Cashen’s home from those of bookmakers Peragallo and Dragos. Spann further testified that he normally dealt with a Mrs. DiEiore at the Morristown office but that she was not working on June 15, 1970, and he did not know the identity of the telephone representative who gave him the information. On the other hand, Mrs. DiEiore testified on deposition that she worked at the Boonton office and not at Morristown, as Spann said. But she did testify that on June 15 and 16, 1970 she was called at the Boonton office and advised Spann that there was no information relative to the investigation for that day. She specifically said she never gave the prosecutor’s office any information as to Cashen’s telephone number. There was also testimony that calls from Dragos to Cashen would not be toll calls, and therefore there would be no record of them. And Peragallo’s phone would not be serviced by either the Morristown or Boonton office but by the Dover office. In fact, Mrs. DiEiore testified she was never asked to give any information relative to the Peragallo phone.

Against this factual background we must determine the propriety of (a) the summary judgment in favor of defendants, and (b) the order denying plaintiff’s request that the identity of the “reliable informer” be disclosed by first resolving these issues: (I) Are defendant prosecutor and his detectives cloaked with immunity from suit? (a) If there is immunity, what is its nature, respectively as to each such defendants and what, if any, are its limitations as to each? (b) If there is immunity but it is not absolute, are there any genuine issues of material fact which preclude granting of summary judgment to defendants? B. 4:67-5. (II) Were the prosecutor and his detectives agents of the county in doing what they did? (Ill) What, if any, is the liability of the Telephone Company in the premises, and (IV) Should defendants, under the circumstances of this case, be compelled to disclose the identity of the so-called “reliable informer” ?

I

IMMUNITY OF DEFENDANT OFFICIALS

It appears that the trial court applied the same standard of immunity as to all official defendants and the county, i. e., that they are not liable in the absence of any showing of “malice” or that they acted “for personal reasons of their own.” In this uniformity of treatment the court erred.

Defendant prosecutor was cloaked with the same immunity as possessed by a judge. A judge is not civilly liable for acts done which are at least colorably within his jurisdiction. Grove v. Van Duyn, 44 N. J. L. 654 (E. & A. 1882). Such judicial immunity has been recognized for centuries. Bradley v. Fisher, 80 U. S. (13 Wall.) 335, 20 L. Ed. 646 (1872). That case explained the reason for the existence of such immunity as follows:

For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon Ms own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility. Taaffe v. Downes, 3 Moore, P. C., 41, n. [at 347].

So it has been held that a prosecutor was immune to suit for false imprisonment alleged to have resulted from an arrest of plaintiff pursuant to a writ which the prosecutor delivered to a constable for execution. Hann v. Lloyd, 50 N. J. L. 1 (Sup. Ct. 1887). There it was said the prosecutor “acted within his official province in instructing the officer as to his official duty with respect to it.” Id. at 5. See also, Edelman v. Dunn, 8 N. J. Misc. 154 (Sup. Ct. 1930). The reasons why a prosecutor is clothed with “judicial immunity” were well stated in Bauers v. Heisel, 361 F. 2d 581 (3 Cir. 1966):

In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial as to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. See Monroe v. Pape, 365 U. S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Comment, 18 Ark. L. Rev. 81, 84-92 (1964). Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent, Griffin v. United States, 295 F. 437, 439-440 (C. A. 3, 1924) ; his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.9 This reasoning is nearly as well established in Anglo-American law as judicial immunity itself. Yaselli v. Goff, 12 F. 2d 396 (C. A. 2, 1926), aff’d, per curiam “on the authority of Bradley v. Fisher * * * [and] Alzua v. Johnson, 231 U. S. 106, 111, 34 S. Ct. 27, 58 L. Ed. 142,” 275 U. S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), and numerous cases and authorities cited therein. Prosecuting attorneys who have been sued under the Civil Rights Act, R. S. § 1979, have likewise been held immune. Laughlin v. Roseman, 82 U. S. App. D. C. 164, 163 F. 2d 838 (1947); Kenney v. Fox, supra [232 F. 2d 288 (C. A. 6)], and other cases cited in note 7, supra, [at 589]

And see extensive collection of cases in Bauers, n. 7 at 586, wherein prosecuting attorneys were held immune. See also Bethea v. Reid, 445 F. 2d 1163 (3 Cir. 1971), cert. den. 404 U. S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1972).

In State v. Winne, 12 N. J. 152 (1953), Chief Justice Vanderbilt stated that in some jurisdictions a county prosecutor is not subject to a civil suit for damages at the hands of an aggrieved citizen, but he observed: “* * * though that point has not been passed on here * * Id. at 170. The Chief Justice apparently meant that the question had not been passed on by the Supreme Court created by the 1947 Constitution, for he made no mention of Hann v. Lloyd, supra, or Edelman v. Dunn, supra, opinions of the former Supreme Court. However, in the same opinion he stated that the “kind of discretion required of the county prosecutor is not different from that required of a judge * * Id. at 174.

In the later case of Earl v. Winne, 14 N. J. 119 (1953), both Hann v. Lloyd and Edelman v. Dunn were mentioned in the following context:

The general rule is that an action will not lie against a judicial officer for an error in judgment, however, prejudicial to the rights of a party such error may be. Taylor v. Doremus, 16 N. J. L. 473 (Sup. Ct. 1838) ; O’Regan v. Schermerhorn, supra [25 N. J. Misc. 1] So it has been held in Nann [sic] v. Lloyd, 50 N. J. L. 1 (Sup. Ct. 1887), that a prosecutor of the pleas had the same immunity as a sheriff and his officers in executing process that on its face appeared to have been regularly issued by a court having jurisdiction of the subject matter. Again in Bdelman v. Dunn, supra, it was held that an assistant prosecutor could not be liable for an error in judgment made in the course of his duty in relation to an arraignment and fixing of bail, [at 132]

Earl v. Winne, supra, laid down the following outline of a prosecutor’s immunity:

The prosecutor of the pleas and his assistants are charged with the obligation to act in due accordance with the law in the discharge of their public duties, particularly by initiating such a proceeding by filing a complaint in a proper manner as established by the prevailing practice. The mere fact that their private rights have been invaded permits no deviation based upon personal predilection or gain. They have the benefit of the presumption that they act legally in the discharge of their public duty, but if the presumption is overcome by convincing proof that they acted in excess of and distinct from their required official duty for personal reasons of their own, then for such acts they are civilly liable. It is only such acts which are redressable in actions for malicious prosecution and malicious abuse of process, [at 134]

The trial court herein applied that rule to defendant prosecutor and, finding that there was no evidence that he acted for “personal reasons” of his own, entered summary judgment in his favor. We agree and affirm as to that defendant. In doing so we are not unmindful of the decision in DeGroot v. Muccio, 115 N. J. Super. 15 (Law Div. 1971). We are not here called upon to approve, or disapprove, the result, or the opinion, in that case. The acts charged against defendant prosecutor here in no sense approach the “ultimate peak of wickedness” or the “horrendous” charges there made. We do note that in DeGroot, Hann v. Lloyd, supra, was not cited. Suffice it to say that the actions of the prosecutor here — insofar as he “acted” at all, since there was no proof of his personal participation or motivation herein — were clearly within his jurisdiction and no excess thereof is suggested. Therefore his “judicial” immunity is preserved. See Restatement, Torts, § 656 (1938); 1 Harper and James, The Law of Torts, § 4.3 (1956).

So far as appears, defendant DiBiasi merely executed the warrant of the court. Appellants point to no evidence that he acted with personal motives of his own; that he did not act in necessary compliance with a warrant issued by a court of competent jurisdiction and in good faith reliance thereon, or that he was in fact guilty of any charges in the complaint. A governmental agent cannot be made responsible in a judicial tribunal for obeying the lawful command of the government, and a public agent who acts pursuant to the command of a legal precept can justify his act by the production of that precept. Den ex dem. Murray v. Hoboken Land and Imp. Co., 59 U. S. (18 How.) 272, 15 L. Ed. 372 (1856). The language in Hann v. Lloyd, supra, is appropriate:

The result, therefore, is that we have a writ, duly authenticated, coming from a court of general jurisdiction, that was vested with cognizance over the class of cases to which it appertained, placed in the hands of the proper officials for execution. It is the legal rule that under such conditions the judicial j>recept must be implicitly obeyed by those to whom it is thus directed. This is a principle essential to the orderly administration of the law. And the consequence is that the officers to whom the writ is addressed will not be responsible for anything necessarily or properly done in its execution. Such ministers of the law need not show the grounds on which the tribunal in issuing the process proceeded, for they can rely on the writ alone without the production of the judgment record on which it is presumed to rest. It is not necessary to refer to books in support of a doctrine that no one will controvert. Plainly, the judge was right in holding that the writ was a complete vindication of the conduct of these ministerial officers for their arrest and detention of the plaintiff. [50 N. J. L. at 4]

Additionally, there is no evidence that DiBiasi acted in excess of his authority under the warrant. There thus being no demonstration of a genuine issue of material fact, we affirm the summary judgment in his favor.

However, unlike DiBiasi, defendants Bickley, Spann and Dunne did not act merely in obedience to the warrant issued by the court. The alleged actions of those defendants which are brought into question occurred before the warrant issued. Bickley made the affidavit which contained the false information. Allegedly, Spann gave false information which was contained in the affidavit and which he said he obtained from the Telephone Company. And, according to Bickley, Dunne participated in the drafting of the affidavit.

Bickley, Spann and Dunne acted essentially as police officers. The common law never granted police officers an absolute or unqualified immunity. Pierson v. Ray, 386 U. S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). See also Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F. 2d 1339, 1346 (2 Cir. 1972) (on remand from the United States Supreme Court 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)). In Bivens Judge Medina stated the reasons why immunity should not be extended to federal officers:

Thus, the real question to be asked is whether or not federal officers performing police duties warrant the protection of the immunity defense. We hold that they do not.
This policy decision has been expressed by courts in terms of “discretion” — making an arrest is not deemed to be a discretionary function. See e. g., Carter v. Carlson, 144 U. S. App. D. C. 388, 447 F. 2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U. S. 1014, 92 S. Ct. 683, 30 L. Ed. 2d 661 (Jan. 10, 1972); Sherbutte v. Marine City, 374 Mich. 48, 130 N. W. 2d 920 (1964); Jaffie, Suits against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 218-19 (1963). “The tendency to hold a public official accountable appears to increase as the discretionary scope of his duties decrease. Hence, police officials, whose job is to enforce the law, are not given immunity.” Note, Immunity of Prosecuting Officials from Suit for Alleged Deprivation of Civil Rights, 40 Temp. L. Q. 244, 250 (1967). Mr. Justice Harlan used similar reasoning in Barr [Barr v. Matteo], where he said that “the broader the range of responsibilities and duties, * *. * the wider the scope of discretion * * *.” 360 U. S. [564] at 573, 79 S. Ct. [1335] at 1340 [3 L. Ed. 2d 1434]. Whereas it is true that a police officer must exercise some discretion in making an arrest, the fiction that this act is not discretionary is maintained because of the belief that the benefit to society derived from the protection of personal liberties outweighs the detriment of perhaps deterring vigorous police action. See Developments in the Law — Remedies Against the United States and its Officials, 70 Harv. L. Rev. 827, 835 (1957). Consequently, “[t]he common law has never granted police officers an absolute and unqualified immunity * * Pierson v. Ray, 386 U. S. 547, 555, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967). See also K. Davis, Administrative Law Treatise § 26.03 at 874-5 (Supp. 1970).

In Jones v. Perrigan, 459 F. 2d 81 (6 Cir. 1972), plaintiff was arrested by Perrigan, an F. B. I. agent, pursuant to arrest warrants allegedly procured by Perrigan by execution of perjured affidavits in support thereof. Jones sued Perrigan for false imprisonment and malicious prosecution. The District Court dismissed the complaint, holding that Perrigan, as a public officer, was immune from liability. The Court of Appeals, by a divided court, reversed, citing Bivens and said on its own behalf:

We disagree with the basis of the decision of the District Court. As a matter of public policy, certain officials are absolutely immune from liability for acts commited within the scope of their office, even if the acts were corrupt or malicious. [.Citing cases]. The immunity of law enforcement officers from false arrest liability is a qualified one, in the nature of an affirmative defense. Immunity is available only if the officer acted in good faith with probable cause. [Citing eases]. “This immunity of officers cannot fairly he enlarged without jeopardizing the privacy or security of the citizen.” [Citing cases]. The mere fact that Perrigan was an FBI agent does not per se establish his immunity from the claim of Jones. Fine v. Paramount Pictures, Inc., 171 F. 2d 571, 574 (7th Cir. 1948). [at 83]

New Jersey has adopted the ministerial-discretionary dichotomy as a means of limiting the potential liability of governmental officials acting within the scope of their authority. Where the officials act in a ministerial fashion, immunity will not be available. Kisielewski v. State of New Jersey, 68 N. J. Super. 258 (App. Div.), certif. den. 36 N. J. 144 (1961); Czyzewski v. Schwartz, 110 N. J. Super. 255 (App. Div. 1970). See also, Bedrock Foundations, Inc. v. Geo. H. Brewster & Sons, Inc., 31 N. J. 124 (1959). Where, however, the official acts in a discretionary fashion, immunity will he present unless ill will or bad faith he shown. In Bivens Judge Medina, in examining the case before him in light of the “discretionary” standard, said:

It would be a sorry state of affairs if an officer had the “discretion” to enter a dwelling at 6:30 A.M. without a warrant or probable cause, and make an arrest by employing unreasonable force. [456 F. 2d at 1346].

While in the case before us the officers did obtain a warrant, it would be an equally “sorry state of affairs” to hold that officers had the “discretion” to obtain that warrant, as plaintiffs allege, upon a false affidavit or by supplying false information which was used in it. In any event, even if Biekley’s, Spann’s or Dunne’s actions are deemed “discretionary,” there is still left the issue as to whether they acted from ill will, bad faith or malice.

Clearly, if plaintiffs’ allegations are true, they have a cause of action for violation of their rights guaranteed to them under the Fourth Amendment of the United States Constitution. Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). We agree with the philosophy expressed in Cohen v. Norris, 300 F. 2d 24 (9 Cir., en banc, 1962), that it would be ludicrous for plaintiffs to have an actionable claim for an unconstitutional violation of their rights and for police officers to be immune from suit for having committed the violation.

As has been seen, Bickley’s affidavit was concededly false. In Earl v. Winne, supra, it was said:

But where the affiant falsely and maliciously states facts untruly and procures a warrant to be issued he becomes responsible for the prosecution and arrest, because if he had not made the false affidavit and asked for the issuing of the warrant, the court could not and would not have decided that criminal process should issue. Malice and want of probable cause are thus inferred from the falsity of the affidavit upon which the arrest was procured. Navarino v. Dudrap, 66 N. J. L. 620 (E. & A. 1901). [14 N. J. at 133; emphasis added]

So too, the false information which Spann allegedly gave to Bickley and which he said had been obtained from the Telephone Company raises genuine issues of material fact as to whether he acted in good faith or maliciously. However, by posing these issues we are not to be understood as suggesting that either Bickley, Spann or Dunne in fact acted other than in good faith. We hold only that there are genuine issues of material fact which preclude entry of summary judgment in their favor. R. 4 :67-5. And this is especially so where the issues remaining relate to “subjective” elements such as good faith and malice. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 76 (1954). As also said there as to granting summary judgment: “Indeed, subjective elements aside, a note of caution has been sounded as to any case where the opposing party must prove his claim * * * from what he can draw from the other party.” That is plaintiffs’ task here. Summary judgment in favor of defendants Bickley, Spann and Dunne-is reversed and a plenary trial is ordered as to them. We-repeat for the sake of emphasis, however, that we are not passing on the question as to whether, at such trial, the proofs will establish the traditional elements of the several causes of action alleged by plaintiffs or whether valid defenses will be established on defendants’ part.

II

AS TO TUB COUNTY OP MORRIS

The theory upon which plainiffs assert liability on the part of the County of Morris is that the prosecutor and his aides were acting in this instance as agents of the county which was therefore vicariously liable on principles-of respondeat superior. The short answer — though the-question was not discussed in any of the briefs — is that the prosecutor and his aides were not agents of the county., but rather of the State in their actions with respect to-plaintiffs. See Atty. Gen. P. M. 1955, No. 37. The county prosecutor is a constitutional officer appointed by the Governor, with the advice and consent of the Senate. N. J. Const. (1947), Art. VII, § 2, f 1. The relevant statute provides that: “'The criminal business of the State shall be prosecuted by the Attorney General and the county prosecutors.” N. J. S. A. 2A :158-4 (emphasis added). The county prosecutor represents the State. State v. Longo, 136 N. J. L. 589 (E. & A. 1947). And ultimately when an indictment is found, the prosecution thereof is undertaken by the State of New Jersey in its own name. Therefore, in performing the actions with which they are charged, the prosecutor and his aides were the agents of the State and not of the County of Morris, and there is no liability as to the county for those actions under the doctrine of respondeat superior. Thus we do not reach the question of any immunity which the county may have had at the time of the action sued upon. We also leave for an appropriate case the question of whether the county may be vicariously liable for the actions of detectives in other circumstances.

The summary judgment in favor of the County of Morris is affirmed.

III

AS TO THE TELEPHONE COMPANY

The amended complaint alleges that the Telephone Company “wrongfully, negligently and unlawfully told the defendant Prank Spann that calls were being made from the telephone which were [sic] allegedly being used for the commission of crime to the telephone of the plaintiffs. The New Jersey Bell Telephone Company know [sic] or should have known that this information was false.” The complaint further alleged that the said false information was “negligently, recklessly, maliciously and wantonly supplied by the defendant New Jersey Bell Telephone Company to the defendant Prank Spann * * In essence, it is a charge of a malicious slander on the part of the company through its “representative.”

It is the Telephone Company’s contention that, since any information supplied to detective Spann was given subject to subpoena, it is cloaked with the same immunity as possessed by the prosecutor. It further argues that it is immune to suit by reason of section 605 of the Pederal Communications Act of 1934, 47 U. S. C. A. § 605. We consider these contentions in inverse order.

The latter argument is stated in the company’s brief as follows: “It has been established that the making of toll records by telephone equipment used in the ordinary course of company business does not constitute an unlawful interception and their divulgence to appropriate law enforcement authorities upon subpoena is both legal and proper.” In support thereof the company cites United States v. Covello, supra, 410 F. 2d 536 (2 Cir. 1969), and Nolan v. United States, supra, 423 F. 2d 1031 (10 Cir. 1969). Covello and Nolan, so far as relevant at all, stand only for the proposition that toll records are admissible in a criminal trial, and their divulgence therein to law enforcement authorities is not an impermissible interception under section 605 of the Federal Communications Act. It does not follow from the correct argument of the company that it was “proper” to make toll records and not impermissible to divulge the information to the prosecutor’s detectives, that the company is absolved by statute from all liability.

There is no authority for the proposition that the Telephone Company is cloaked with the same immunity as the prosecutor merely because it acted pursuant to subpoena. Parenthetically, we note Spann testified that his information that the Cashens’ telephone was being used for gambling activity came from a telephone conversation with a representative of the company. It is not claimed that the information came from any records produced pursuant to subpoena. However, we do hold that the Telephone Company was cloaked with a qualified privilege with respect to whatever communications its “representative” may have given a law enforcement officer such as Spann. A communication, made bona -fide, on any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged; and if made to a person having a corresponding interest or duty, though the communication would be actionable if it were not for the privilege. Coleman v. Newark Morning Ledger Co., 29 N. J. 357, 375 (1959); Jorgensen v. Pennsylvania R. R. Co., 25 N. J. 541, 543 (1958); King v. Patterson, 49 N. J. L. 417, 430 (E. & A. 1887). The purpose of establishing such privilege is for the welfare of society and “* * * 'it is fin the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in protection of some [self or] common interest’: * * Coleman v. Newark Morning Ledger Co., supra, at 377 of 29 N. J. It is indeed in the public interest that a telephone company supplying information to prosecuting authorities in the aid and detection of crime should have such a privilege.

A qualified privilege may be overcome only if there is a showing of express or, as it is sometimes called, actual malice. Coleman, supra, at 374-375. Such malice is to be distinguished from that implied malice which may be inferred from the falsity of Bickley’s affidavit (if it was false), as pointed but in Earl v. Winne, supra, 14 N. J. at 133 (see Point I above). No such inference of express or actual malice can be drawn from the mere fact that the libelous or slanderous words were false. Odgers, The Digest of the Law of Libel and Slander (6th ed. 1929), 293. As said in Gately on Libel and Slander (5th ed. 1960), 567:

Privileged occasion. Where the words were published on a privileged occasion, the mere proof that they are false is not evidence of malice. “Even though the statement should be untrue in fact, the defendant will be held justified by the occasion unless it can be shown to have proceeded from a malicious mind.” “Mere falsehood is certainly no disimoof of bona fides.”

Express malice, with which we are now concerned, means something more than the “fictitious legal malice” (Coleman, supra, at 375 of 29 N. J.), which is implied from an unprivileged defamation. It must encompass a purpose to make the publication, not primarily for the purpose for which the privilege is bestowed, but for some wrongful motive such as ill will or to accomplish an objective not within the purpose of the privilege. Id. And, when the occasion is privileged, as we hold here, the onus lies on plaintiffs to prove defendant’s malice, for the bona fides of the defendant is always presumed. Odgers, op. cit., at 284, and Coleman at 373. On such privileged occasion, in what may be termed obeisance to the privilege, it will be assumed that defendant published the defamatory matter honestly believing it to be true, unless there is some evidence from which a contrary inference may be drawn. Gately, op. cit., §§ 480, 481, at 271-272. It is plaintiffs’ burden to produce such evidence. If indeed the evidence is merely equivocal, i. e., equally consistent with malice or bona fides, or if the evidence is a mere scintilla, the judge should stop the case. Odgers, op. cit., at 284-285. As the latter authority puts it:

“If once the privilege be established, unless there be extrinsic evidence of malice, there must be something so extreme in the words used as to rebut the presumption of innocence, and to afford evidence that there was a wrong and an indirect motive prompting the publication” (per Buckmaster, L. C., in Lyal v. Henderson, [1916] S. C. (H. L.), at p. 175). [at 293]

Assuming that the “representative” of the Telephone Company gave Spann the information which he ascribes to her, we conclude that there is no evidence of express or actual malice on the part of the company or its “representative.” Eor these reasons the summary judgment in favor of the Telephone Company is affirmed.

IV

DISCLOSURE OF TIIE IDENTITY OF THE INFORMER

Plaintiffs appeal from the action of the trial court in refusing to compel defendant officials to disclose the identity of the so-called reliable informer referred to in Bickley’s affidavit. Defendant officials rely on the “informer’s privilege” (Evidence Rule 36; N. J. S. 2A :84A-28), and the philosophy denying disclosure of the informer’s identity as expressed in numerous criminal cases. In doing so they cite, among others, State v. Burnett, 42 N. J. 377 (1964), and State v. Petillo, 61 N. J. 165 (1972), cert. den. 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973).

The privilege relied upon is not the privilege of the informer but the privilege of the Government. The scope of the privilege is limited by its underlying purpose. That purpose is the furtherance and protection of the public interest in effective law enforcement. Roviaro v. United States, 353 U. S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). As said in the latter ease (at 59, 77 S. Ct. at 627), “The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform' that obligation.” And, “A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” (Emphasis added). The same limitation as to “fairness” on the privilege is incorporated in Evidence Rule 36, N. J. S. A. 2A:84A-28.

No absolute rule can be laid down as to when disclosure of the informer’s identity is essential to a fair determination of the issues. What is called for is a balancing of the public interest in protecting the flow of information and the legitimate interests of the informer against the rights of others to a fair determination. Roviaro, as adopted in State v. Burnett, supra.

Weighing the issue of disclosure here by the foregoing tests, we conclude that no valid public purpose can be served by withholding disclosure of the identity of the informer upon which Biekley relied in his affidavit. The information, if given at all, was totally false. Therefore the so-called informer cannot be said to be reliable. No public benefit ‘would be served by continuing Ms “informer” services. If he were to follow the pattern established in this case, he would only mislead the authorities and defeat the public interest. Assuming that he exists and that he did in fact relate to Spann the information charged to Mm, his disservice to law enforcement, whether it be by carelessness, by incompetence, or by intention, is abundantly apparent.

As we have said above, since the affidavit of Bickley contains false information, malice may be inferred therefrom. Such inference may be rebutted on Bickley’s part by revelation of the reasons why he relied upon the informer. If indeed the informer cannot be identified, then malice on the part of Bickley could readily be found by the jury.

In Brogan v. The Passaic Daily News, 22 N. J. 139 (1956), a libel suit wherein defendants pleaded the newspaperman’s statutory privilege (then N. J. S. 2A:81-10) and refused to disclose the “reliable source” they had relied on, the Supreme Court said:

The position of the respondents in this ease is that they insist on asserting these defenses based upon the reliability of the source of information upon which they relied, yet refuse to disclose what those sources were, so that the jury could ascertain whether they were in fact reliable, [at 152]

And,

When the trial court upheld the claim of privilege by the witness Smith with respect to questions as to the identity of the “reliable source” of his information, he foreclosed the plaintiff of obtaining information favorable to its position to combat the defenses of good faith and fair comment and lack of malice raised by the defendants. The cross-examination of a party witness on matters directly in issue and directly relevant to the issue is a matter of right, [at 153]

It was held that the privilege had been waived. See also Beecroft v. Point Pleasant Print & Pub. Co., 82 N. J. Super. 269 (Law Div. 1964).

So here, defendant Bickley asserts that he had a “reliable informer” and he will undoubtedly defend on the ground that he had probable cause to make the affidavit and acted in good faith. .But by refusing to disclose the identity of the informer he would unfairly deny plaintiffs the right to test those defenses and would preclude them from cross-examining him “on matters directly in issue” which is a “matter of right.” To do so is violative of the object of Evidence Buie 36 which would compel disclosure “to assure a fair determination of the issues.”

It is important that we note emphatically that not every misstatement or inaccuracy by an informer will necessarily result in the scales balancing toward a divulging of his identity. As with many situations where important public considerations are involved, in the sensitive and delicate area of a balancing of public and individual rights, determination should be made on the basis of the facts in the particular area. In each case, “We must assay the fairness of nondisclosure in the context in which it arises * * *” (Burnett, supra, 42 N. J. at 386), both legally and factually.

Defendant officials further support their contentions on this subject by arguing that the attempt of plaintiffs to discover the identity of the informer is essentially an attack upon the truthfulness of Bickley’s affidavit, and such an attack is precluded by the opinion in State v. Petillo, supra. True, where the issue is whether an affidavit submitted in support of an application for a search warrant supplies sufficient probable cause for the issuance of that warrant, an attack upon the .truthfulness asserted in the affidavit is precluded by Petillo. As Justice Francis said in that case:

The standard provided in the Constitutions as the basis for intrusion into the home of a citizen because of alleged gambling activities is not proof of his guilt of the criminal offense. The requirement is sworn statements of fact of sufficient legal quality to persuade an impartial judge that probable cause exists to believe that the crime described is being committed at the place. Once that test is ment to the satisfaction of the judge, relitigation of the truth of the factual basis for issuance of the warrant should not be permitted. [61 N. J. at 174]

But most pertinent to the issue in this civil case where defendant Bickley is charged with making a false affidavit, Justice Francis expressly excluded application of Ms decision to a case such as this when he said: "Further, so far as the untruthful officers are concerned, they expose themselves to the sanctions of indictment for perjury or false swearing, a charge of criminal contempt, and assessment, of monetary damages in a civil action.” Id. at 174; emphasis added. And again ho expressly said, after laying down the rule as to testing the veracity of an affidavit if it be sufficient on its face for the issuance of a warrant: “We think such a rule adequately servos the purpose of the Fourth Amendment, and that sufficient deterrence to the rare false affidavit that may slip by the issuing judge is provided by the sanctions of perjury, contempt and civil damages.” Id. at 178-179; emphasis added.

There is no issue as to the validity of the search warrant here. Attack on the falsity of the affidavit of Bickley is therefore not precluded and plaintiffs are entitled to a trial on the remedy they seek here, i. e., recovery of civil damages.

Vo. therefore reverse the order of the trial court in denying disclosure of the identity of the informer referred to in Bickley’s affidavit to the end that plaintiffs may be assured a fair determination of the issues, including that as to the falsity of the affidavit, the motivation therefor, and the good faith or malice of the maker.

CONCLUSION

In summary, the summary judgment granted in favor of defendants Prosecutor Egan, DeBiasi, County of Morris, and the Telephone Company, is affirmed. The summary judgment granted in favor of defendants Bickley, Spann and Dunne, is reversed. The order denying plaintiffs information as to the identity of the informer referred to in Bickley’s affidavit is reversed and such disclosure is to be made.

No costs to any party.

       Since no appeal has been taken against the borough, we need not recount the charges against it.

       The “malice” here spoken of is implied malice as distinguished from the empress malice which a plaintiff in a libel or slander suit must establish to overcome a qualified privilege. See Point III, infra.


text:
    CARMEN S. ZARELLI, PLAINTIFF-APPELLANT, v. OPERATIVE PLASTERERS’ AND CEMENT MASONS’ LOCAL NO. 699 OF CAMDEN, NEW JERSEY, ANTHONY LaTORRE, SR., MARY LaTORRE, ANTHONY LaTORRE, JR., AND ALPHONSE LaTORRE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted October 29, 1973
    Decided November 9, 1973.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Carlton W. Rowand, attorney for the appellant.

      Tomar, Parks, Seliger, Simonoff & Adourian, attorneys for the respondents (Messrs David Seliger and Robert F. O’Brien, of counsel).
   Per Curiam.

It is settled that an action by a union member against the union and its officers asserting wrongful interference with “existing or prospective employment relations”, is not cognizable in the state courts; that such matters have been pre-empted by the Federal government by virtue of the National Labor Relations Act, 29 U. S. C. § 151 et seq.; Iron Workers Union v. Perko, 373 U. S. 701, 705, 83 S. Ct. 1429, 10 L. Ed. 2d 646 (1963); Association of Journeymen v. Borden, 373 U. S. 690, 83 S. Ct. 1423, 10 L. Ed. 2d 638 (1963); Motor Coach Employees v. Lockridge, 403 U. S. 274, 295-297, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971).

Affirmed.


text:
    ZEPHYR HAYES, PLAINTIFF-APPELLANT, v. BENEDETTO MONGIOVI, T/A MOM BUTCHER SHOP AND/OR VICTORY MORTGAGE CORP., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 23, 1973
    Decided November 8, 1973.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. Emanuel S. Fish, attorney for appellant.
    No brief was filed on behalf of respondent.
   Per Curiam.

In this case involving personal injuries received by a person who was knocked down by a 150-pound Great Dane dog, we affirm essentially for the reasons stated by the trial judge in his written opinion reported at 121 N. J. Super. 272 (Law Div. 1972).

On this appeal plaintiff argues alternatively that solely by reason of the size of the dog, defendant-owner should be held as an insurer of any person knocked down thereby, without the necessity of showing scienter. This point lacks merit. See Groner v. Hedrick, 403 Pa. 148, 169 A. 2d 302 (Sup. Ct. 1961).

Francois v. Hanff, 77 N. J. L. 364 (Sup. Ct. 1909), relied upon by plaintiff, concerns runaway horses and is inapposite.

Affirmed.


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

text:
    ROBERT A. DEVANEY, AN INFANT BY HIS GUARDIAN AD LITEM JOHN R. DEVANEY AND JOHN R. DEVANEY AND JEANNE DEVANEY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. LOUIS SARNO, VOLKSWAGEN OF AMERICA, INC. AND CENTRAL VOLKSWAGEN, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted October 24, 1973
    Decided November 8, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Arthur C. Gundersdorf, attorney for appellants.

      Messrs. Crummy, O'Neill, Del Deo & Dolan, attorneys for respondent Volkswagen of America, Inc. (Messrs. Herzfeld and Rubin, P. C., of the New York Bar, of counsel).

      Messrs. Gilady and Harwood, attorneys for respondent Central Volkswagen, Inc., filed a statement in lieu of brief.
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The salient facts in this controversy are fully and accurately set forth in the trial court’s opinion, 122 N. J. Super. 99, and will be referred to herein only when necessary. The narrow issue before us is .whether summary judgment was properly granted in favor of respondents. We have concluded it was not and reverse.

Plaintiffs’ (referred' to hereinafter as Devaney) suit against Louis Sarno was settled for $20,000. The suit continued against respondents Volkswagen of America, Inc. and Central Volkswagen, Inc., manufacturer and dealer, respectively, of the car sold to and driven by Devaney, sounding in negligence, breach of warranty and strict liability. While the complaint alleged negligence and breach of warranty, for our purposes we consider this suit to be based on strict liablity in tort. Devaney sought to recover for the increased extent of his injuries and damages because of the inadvisability of using the defective seat belt furnished for his car which would not unfasten in a normal way. The complaint was dismissed because the trial court determined that Devaney was guilty of contributory negligence as a matter of law in driving the car for pleasure with full knowledge of the defective seat belt, or had assumed the risk of doing so.

It is fundamental that a motion for summary judgment should be granted only if the pleadings, depositions and admissions on file show palpably that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. R. 4 :46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 73—75 (1954). Such motions are granted only with much caution, Devlin v. Surgent, 18 N. J. 148, 154 (1955) and where there are genuine disputed issues of fact, they must be resolved at a plenary hearing. Wilson v. Miller, 25 N. J. Super. 280, 289 (App. Div. 1953). Tn deciding whether a genuine issue as to any material fact exists, the moving papers and pleadings are considered most favorably to the party opposing the motion and all doubts are resolved against the movant. If there is the slightest doubt as to the facts, the motion should be denied. Ruvolo v. American Cas. Co., 39 N. J. 490, 499 (1963); United Advertising Corp. v. Metuchen, 35 N. J. 193, 195-196 (1961).

The law in New Jersey, and throughout the country, has been developing rapidly in the field of breach of warranty and strict product liability in tort suits. The liability of manufacturers and distributors of defective products has been greatly enlarged. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960); Prosser, “The Fall of the Citadel (Strict Liability to the Consumer),” 50 Minn. L. Rev. 791 (1960). The issue of whether contributory negligence or assumption of risk may be utilized as a defense in strict product liability tort suits has been the subject of a great deal of legal discussion. Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463, 474 (1969); see also the extensive annotation, “Products Liability: Contributory Negligence or Assumption of Risk as Defense Under Doctrine of Strict Liability in Tort,” 46 A. L. R. 3d 240 (1972). New Jersey has adopted the rule that contributory negligence is not available as a defense in a warranty or strict product liability tort suit where special circumstances exist, as in Bexiga v. Havir Mfg. Corp., 60 N. J. 402 (1972), or where the defect is not known to the owner or user. Ettin, supra, 53 N. J. at 472-473; 63 Am. Jur. 2d, Products Liability, § 150 (1972). However, if the user knows of the defect, and voluntarily and unreasonably uses the product with realization of the danger, his conduct, whether termed contributory negligence in its “broad” sense or assumption of risk (the dichotomy is merely a problem in semantics), will bar recovery. Maiorino v. Weco Products Co., 45 N. J. 570 (1965). This holding is in line with thé Restatement, Torts 2d, §402A (1965), and in particular Comment (n) at 356, which states:

n. Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524), applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of a risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. [Emphasis added]

See also 2 Frumer and Friedman, Products Liability, § 16A[5] (f) (1973).

To enable respondents to use contributory negligence in its ‘Troad” sense, to bar plaintiffs’ suit as a matter of law, they had the burden of proving that Devaney voluntarily and unreasonably proceeded “to encounter a known danger.” Admittedly, Devaney knew of the defective seat belt and, therefore, “voluntarily” proceeded to encounter a known risk if involved in an accident while driving. But can it be said, as a matter of law, that he “unreasonably” proceeded to encounter such a known risk? We think not — we believe it was a jury issue. See Ettin, supra, 53 N. J. at 474-475; Maiorino, supra, 45 N. J. at 575; Cintrone v. Hertz Truck Leasing, etc., 45 N. J. 434, 458-459 (1965); Ferraro v. Ford Motor Company, 423 Pa. 324, 223 A. 2d 746 (Sup. Ct. 1966) (driving with knowledge of vehicle’s defective wheels and accelerator pedal); Buttrick v. Arthur Lessard & Sons, Inc., 110 N. H. 36, 260 A. 2d 111 (Sup. Ct. 1969) (driving with knowledge of defective headlights). As indicated in 63 Am. Jur. 2d, Products Liability, § 150 at 155, “It would seem that the effectiveness of a defense based on continued use of the product with knowledge of the defect is ordinarily a matter for the jury, particularly if the use continues after assurances by the seller that continued use is safe.” In the instant case, there is an inference that the dealer considered it safe for Devaney to continue to drive without a seat belt until replacement parts arrived. In any event, there is no indication Devaney was told not to drive pending replacement.

This is not the ordinary product liability suit wherein the defective product was the proximate cause of the accident. Nor does it fall within the line of cases where defendants raise the issue by way of defense that a driver’s or a passenger’s failure to use an available seat belt would have avoided the accident, Barry v. Coca Cola Co., 99 N. J. Super. 270 (Law Div. 1967); or that it would have avoided or lessened the severity of the injuries sustained.

Respondents did not install the seat belt to avoid a car accident — this was done to avoid or lessen serious injuries to the driver or passenger which might result from an accident. Thus there had to be an accident before the effect of the defective product came into play. Under such circumstances, it was for a jury to say whether Devaney, conscious of the risk of driving without a seat belt and the possibility of being involved in an accident, acted unreasonably in driving his car on the day in question. See Zentz v. Toop, 92 N. J. Super. 105 (App. Div. 1966), aff’d 50 N. J. 250 (1967). This is not a ease where justice dictates that the defense of contributory negligence (in its broad sense) be unavailable to respondents. See Bexiga, supra, 60 N. J. at 412. However, the issue of contributory negligence (in its broad sense) should be left for the jury’s determination.

Reversed and remanded for a plenary trial.


text:
    DONALD FORD AND ADELE FORD, APPELLANTS, v. ROSE DEITELBAUM MIMKON, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1973
    Decided November 12, 1973.

      Before Judges Haepern, Matthews and Bischoee.

      Mr. Gerard C. Gross argued the cause for appellants (Messrs. McGahn and Friss, attorneys).

      Mr. Mark Vasser argued the cause for respondent.
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The narrow issue on this appeal is whether a grandparent has the legal right to visit with her seven-year-old granddaughter (her deceased daughter’s child) when the natural father, and his second wife who has legally adopted the child, refuse to permit it.

Eespondent Eose Mimkon was the mother of Joan Ford who died on November 24, 1970. Jill Ford was born to appellant Donald Ford and Joan Ford on July 2, 1966. The Fords separated prior to Jill’s birth and were divorced in November 1968. Eespondent resided with her daughter and Jill from the date of Jill’s birth to the date of Joan’s death, at which time Donald Ford took custody of Jill. In June 1969 Donald Ford married appellant Adele Ford. On August 13, 1971 a judgment was entered granting the adoption of Jill to Adele.

Fo useful purpose would be served in setting forth the various court proceedings instituted by respondent, following Joan’s death, to obtain the legal right to visit with Jill. Suffice it to say, the trial court found it to be for the best interest of Jill that respondent have the right to visit Jill. It based its decision on N. J. S. A. 9:2-7.1, effective February 1, 1972, which provided:

Where either or both of the parents of a minor child, residing within this State, is or are deceased, a grandparent or the grandparents of such child, who is or are the parents of such deceased parent or parents, may apply to the Superior Court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, the court may make such order or judgment, as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

It further held that the provisions of our adoption statute, N. J. S. A. 9 :3-17 et seq., as amended in 1953, did not “override” N. J. S. A. 9 :2-7.1, but that the statutes should be read in pari materia. So construed, it granted visitation rights to respondent. This appeal followed.

Before dealing with the issues in this case, we should fake note that N. J. S. A. 9 :2-7.1 was amended, effective May 2, 1973, to provide

Where either or both of the parents of a minor child, residing within this State, is or are deceased, or divorced or living separate and apart in different habitats, regardless of the existence of a court order or agreement, a grandparent or the grandparents of such child, who is or are the parents of such deceased, separated or divorced parent or parents, may apply to the Superior Court, in accordance with the Kules of Court, to have such child brought before such court; and the court may make such order or judgment, as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

Thus, as is indicated in the Committee Statement attached to the statute, grandparents’ visitation rights were expanded, and jurisdiction placed in the Superior Court under rules of court rather than by habeas corpus.

We disagree with the trial court’s interpretation of N. J. S. A. 9:2-7.1 and N. J. S. A. 9:3-17 et seq. The clear intent of the Legislature, as expressed in the statement of public policy in the adoption statute, was to protect the adopted child from interference by his natural parents after he has been established in his adoptive home; and to protect the adopting parents from later disturbance of their relationship with the child by the natural parents. N. J. S. A. 9:3-17. If the natural parents are barred from visitation rights with their own child after adoption, it makes little sense to say that the Legislature intended, however, to give such rights to grandparents.

Other provisions in the adoption statute support our views that after adoption the adopting parents may refuse to permit a grandparent to visit with a grandchild despite the special visitation rights given to grandparents under N. J. S. A. 9 :2-7.1. The term "parent” is defined as meaning a natural parent or a parent by adoption. N. J. S. A. 9 :3-18(f). Adoption is only to be granted where it is in the best interests of the child. N. J. S. A. 9 :3-27(C). The judgment of adoption terminates all relationships between the child and his natural parents — it establishes the same legal relationship between the child and its adopting parents as though born to the adopting parents in lawful wedlock. N. J. S. A. 9 :3-30(A) and (B).

We have recognized the drastic and final nature of a judgment of adoption, and trial courts have been made aware that even a nonconsenting natural parent may be "permanently cut off from all parental rights and benefits, tangible and intangible, including even the privilege of seeing and visiting his child, as if it were never his, S: *** In re Adoption of Children by D, 61 N. J. 89, 92-93 (1972). In short, grandparents’ rights of visitation with grandchildren can rise no higher than the rights afforded natural parents after an adoption has taken place. Such a holding in no way dilutes the rights given grandparents under N. J. S. A. 9 :2-7.1 to visit with their grandchildren, if such is for the child’s best interest, and the necessary facts exist so as to make the statute applicable.

Respondent points to an Assembly bill which attempted to add on to N. J. S. A. 9 :2-7.1, at the time of its passage, that grandparents’ visitation rights were to be terminated automatically in the event of an adoption. Respondent argues that the Legislature’s failure to enact the added provision indicates it intended to give grandparents visitation rights where adoption has taken place. We disagree. It would be pure speculation to arrive at that conclusion. It could just as well be said that the Legislature felt the attempted addition was superfluous in view of the clear language to the contrary in the adoption statute.

We are not insensitive to the bitter feelings which our decision will evoke from respondent and other persons similarly situated. However, the adoption statute makes it crystal clear that appellants must be given the opportunity of exercising their best judgment in doing that which they believe essential for Jill’s best interests.

The judgment granting visitation to respondent is reversed.