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

text:
    FIORE DiCOSTANZO, PETITIONER-APPELLANT, CROSS-RESPONDENT v. MATTHEWS CONSTRUCTION COMPANY, RESPONDENT-RESPONDENT, CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 11, 1970
    Decided May 28, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Robert A. Gladstone argued the cause for appellant Piore DiCostanzo (Messrs. Pellettieri and Rabstein, attorneys) .

      Mr. Fred R. Daniels argued the cause for respondent and cross-appellant (Mr. John W. Taylor, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

This is a workmen’s compensation case. There is an appeal by petitioner and a cross-appeal by respondent from the judgment of the County Court fixing the amount awarded petitioner for permanent disability. Petitioner claims that he is entitled to a greater percentage; respondent maintains that a lesser percentage should have been fixed.

There is no dispute as to the happening of an accident on August 4, 1967 while petitioner, in the course of his employment as a laborer with respondent, was taking wooden cases, weighing about 250 to 300 pounds and four feet high and three feet wide, off a truck and placing them on a wagon. These cases were picked up manually, a cart being used to take them to a wagon. Petitioner was on one side of a case and was lifting that side by himself when he felt a sharp piercing pain in the lower part of his back. Concededly, petitioner suffered temporary and permanent disability. The issue involved below and here is the quantum of that permanent disability and the correctness of the County Court’s evaluation is now before us for review.

The judge of compensation determined that petitioner’s permanent disability “is orthopedic, neuropsychiatric and phlebothrombosis in nature, for residuals of orthopedic injuries to the back, a severe strain of back, a disc syndrome, an anxiety reaction and phlebothrombosis.” He concluded the extent of permanent disability to be “22^% of total, 5% of total being for the residual effects and damage caused by the phlebothrombosis, 10% of total being for the orthopedic injuries to the back and rt1/2% of total for the neuropsychiatric disability.”

In its appeal to the County Court respondent challenged that part of the Division’s determination awarding petitioner partial permanent disability benefits for disability which “was neuropsychiatric and phlebothrombosis in nature.” The County Court decided that “the award made in the Division of Workmen’s Compensation should be sustained with respect to that part thereof awarding lx/2% of partial permanent disability for a neuropsychiatric disability but modified and reversed as to the award of 5% of partial permanent disability for the residual effects and damage caused by the phlebothrombosis.”

The original award of 10% of total for the orthopedic injuries to the back has not been challenged on this appeal by either party. Petitioner’s appeal to this court seeks a reversal of that part of the County Court judgment which reversed the Division’s award of 5% partial permanent disability for phlebothrombosis. Respondent’s cross-appeal contests the award of partial permanent for the neuropsychiatric disability.

I. Ueuropsychiatric Disability

Both the Division and the County Court concurred in finding petitioner entitled to an award of 7)^% of total disability by reason of the neuropsychiatric residuals occasioned by this accident. Based upon the record as a whole, we find sufficient credible and substantial evidence to support this concordant determination. We affirm this aspect of the case under the guidelines laid down in Qlose v. Kordulak Bros., 44 N. J.' 589 (1965).

II. Phlebothrombosis Disability

The Division and the County Court disagreed as to this aspect of the case. The Division allowed, as part of its award to petitioner, 5% of total disability for the residual effects and damage caused by the phlebothrombosis. The County Court reversed as to this award of 5% for the residual effects and damage caused by the phlebothrombosis.

The accident happened on August 4, 1967. After a sleepless night, petitioner saw a Dr. Uazzaro the next day. The doctor, after hearing the history from the patient, advised him to sleep on the floor that evening. On the next day, August 6, petitioner awoke with severe and excruciating pain. He was thereupon admitted to Princeton Hospital, where he remained until August 13, 1967. The final diagnosis at the hospital was acute lumbosacral strain, herniation at the left of the 5th lumbar vertebra.

After his release from the hospital, he noticed that his right leg began to. swell. He was again admitted to the hospital on August 16, 1967. This second admission ended on August 23, 1967. To the previous final diagnosis, there was added phlebothrombosis of the right leg.

As usual, there was a conflict in the medical testimony. Dr. Freymouth, testifying for petitioner, found causal relationship. Dr. Scheuerman, for the respondent, differed. Also, admitted by stipulation, were the reports of other doctors.

The only medical evidence presented regarding the residual effects and damage caused to the right leg by phlebothrombosis is contained in the reports of Dr. Silberner and Dr. TJrbaniak. Petitioner was asked at the compensation hearing, “What complaints do you have with the right leg now?” He answered, “Por now it seems to be all right.” Dr. TJrbaniak’s diagnosis seems to have been based on petitioner’s complaints at the time of an examination on October 18, 1968. But he gave no basic facts for his determination as to permanent disability.

Dr. Silberner’s report contained comments to the effect that, “At the present time, the patient has no symptomatology referrable to the thrombophlebitis. Likewise, he has no objective evidence of the thrombophlebitis.” However, he stated that “an individual who has suffered a phlebitis of the vein is more prone to develop a subsequent phlebitis than an individual who has not suffered such an injury.” According to the doctor, “additional precautionary care will have to be taken to prevent a recurrence of the thrombophlebitis.” The doctor concluded in his report that petitioner’s damage "makes him more liable to a recurrence of the phlebitis than if he had never had this before.” (Emphasis added). Upon this basis, the doctor estimated that petitioner had suffered 5% of total disability as the result of the irreversible damage which makes him “more prone” to a recurrence of phlebitis than if he had never suffered such an injury before.

The judge of compensation obviously accepted this medical opinion in awarding the additional 5% for the phlebothrombotie residuals. The County Court disagreed, finding nothing in the statute or case decisions to permit a recovery of a disability award for the reasons set forth in Dr. Silberner’s report. In support of its conclusion, reversing the Division’s award of 5% as to the plilebothrombotic aspect of the case, the County Court cited Burbage v. Lee, 87 N. J. L. 36 (Sup. Ct. 1915); Heidel v. Wallace & Tiernan, Inc., 37 N. J. Super. 522, 528 (Cty. Ct. 1955), affirmed o.b. 21 N. J. 335 (1956).

Burbage v. Lee held that “the term ‘disability’ is not restricted to such disability as impairs earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life.” 87 N. J. L. at 38. Heidel v. Wallace & Tiernan, Inc. cited Burbage v. Lee with approval. 37 N. J. Super, at 528. Heidel held that loss of wage-earning capacity is not the determinant. “Disability” is not used in its narrow sense, but rather in broad interpretation “connoting loss of any physical function or any impairment to the worker as a physiological unit.” Ibid. In Burbage, the worker became permanently lame. In Heidel, his right lower arm was amputated.

Petitioner argues that increased susceptibility to an active disease, caused by a compensable accident, is an impairment of the worker as a physiological unit and gives rise to a compensable permanent disability claim under our workmen’s compensation law. Respondent’s position is that petitioner does not suffer from any permanent disability by reason of phlebothrombosis.

Petitioner conceded that he has no complaints now with the right leg. “For now it seems to be all right.” Dr. Silberner reported that, at the present time, petitioner “has no symptomatology ref err able * * * or objective evidence of the thrombophlebitis.” Does mere “proneness to a recurrence” of phlebitis, which may never happen, justify a 5% of total permanent disability award at this time ? That is the question to be answered.

At the time of the compensation hearing on December 9, 1968, petitioner was 41 years old. Dr. Scheuerman described him as a thin man, weighing 136 pounds, and standing five feet four inches tall. In all, petitioner had remained out of work three months following his accident. He then returned to work in the same capacity on October 39, 1967. At the December 9, 1968 hearing petitioner was still working for respondent as a shop steward. He testified that his right ieg no longer caused him difficulty. There has been no recurrence of the phlebitis condition, although almost three years have elapsed since the August 4, 1967 accident. There are, as noted above, no objective or other symptoms of this disease at the present time. At most, there may be a recurrence; but then again, thew> may never be a recurrence.

The criterion for determining permanent disability in New Jersey is “whether the worker has lost any physical function detracting from his body’s efficiency” in the ordinary pursuits of life. Heidel v. Wallace & Tiernan, Inc., supra, 37 N. J. Super, at 538, affirmed 21 N. J. 335. Does the potential impairment to the worker as a physiological unit justify a present award for a disability which does not now exist?

An award of compensation cannot rest upon imagination, surmise or conjecture, or upon speculation. Ligenza v. White Foundry Co., Inc., 136 N. J. L. 436, 440 (Sup. Ct. 1948). The award is based upon petitioner’s disability as of the time of the determination. An injured workman may be awarded 75% of total permanent disability for a traumatic heart condition resulting from a work-connected accident. His obvious proneness to increased disability thereafter does not warrant a further award because of that potentiality. It is when the potential becomes actual that an application may be made for an increase in the award or further benefits. See McAllister v. Bd. of Ed., Kearny, 79 N. J. Super. 349 (App. Div. 1963), affirmed 43 N. J. 56 (1964). Our Workmen’s Compensation Act, N. J. S. A. 34:15-27, authorizes review and increase of an award within two years from the date the injured person last received a payment.

The fact, that a former injury may have produced a weakness in the employee’s bodv making him more susceptible to further injury than would a normal individual, does not necessarily in itself establish a partial permanent disability of a compensable nature. Such an employee might never sustain a further injury, in which case he never will be disabled. M. & M. Realty Co. v. Industrial Commission, 267 Wis. 52, 64 N. W. 2d 413, 419 (Sup. Ct. 1954).

As stated in 99 C. J. S. Workmen's Compensation § 173, at 596:

Weakened resistance, one form of which is susceptibility to disease, can never, by itself, result in a compensable injury; and the fact that an injury may have produced a weakness in an employee’s body making him more susceptible to further injury than a normal individual would be does not necessarily in itself establish a partial permanent disability of a compensable nature.

See Santini v. Levin, 110 Conn. 248, 147 A. 680 (Sup. Ct. Err. 1929), holding “Weakened resistance, one form of which is susceptibility to disease, can never, by itself, result in a compensable injury * * (147 A. 681).

We conclude that disability to be compensable may not be a mere potential future possibility. Such was the situation here with reference to the mere possibility of a recurrence oE thrombophlebitis at some speculative future time.

Accordingly, the judgment of the County Court is in all respects affirmed.


source: Caselaw Access Project

author: Lewis, J. A. D. Matthews, J. A. D.

license: Public Domain

text:
    LORRAINE G. BIRO, PLAINTIFF-RESPONDENT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 2, 1970
    Decided May 29, 1970.

      Before Judges Goldmanst, Lewis and Matthews.

      Mr. Richard H. Woods argued the cause for appellant {Messrs. Hiering, Grasso, Gelzer & Kelaher, attorneys; Mr. Thomas F. Kelaher, on the brief).

      Mr. Benjamin Weiner argued the cause for respondent {Messrs. Weiner & Schoifei, attorneys; Mr. Edward J. Egan, on the brief).
   The opinion of the court was delivered by

Lewis, J. A. D.

Plaintiff, as beneficiary, instituted suit against defendant, carrier on a policy of life insurance, seeking the face amount thereof and accidental death benefits. Defendant denied liability on both counts, contending that the insured, plaintiff’s husband Eobert Biro, had committed suicide. The accidental death claim was abandoned during trial and the jury returned a verdict in plaintiff’s favor for the policy amount of $25,000, plus interest and costs.

The background facts are uncomplicated. On Sunday, April 16, 1967, shortly after 11 p.at., plaintiff discovered her husband in the garage of their home, in back of the steering wheel of his automobile “slouched over to the passenger side,” in an unconscious condition. The motor of the ear was running, the doors of the garage were closed, and it was “smoky” with noxious fumes. Plaintiff and a neighbor, who came to her assistance, noticed an odor of alcohol about Robert and, believing him to be drunk, they carried him through the den, adjacent to the garage, and placed him on a couch in the family room. After the neighbor left and plaintiff supplied a pillow and covered her husband with a blanket, she went to bed. Unable to awaken him in the morning she telephoned her father and summoned the local First Aid Squad. The family physician was called, and he pronounced Robert dead.

The death was investigated by State Trooper Walsh and Dr. Malcolm Gilman, then Monmouth County Physician (a position now designated as Monmouth County Medical Examiner) .

Walsh testified that three empty pill containers, a broken glass and a pint bottle of blackberry brandy, full, were found on the desk in the den, and “on a fold” in the blotter there was a small white piece of notepaper with pencil writings thereon. He also stated that the car was a 1966 [sic 1967] Pontiac which

showed no physical signs of being worked on. There were no tools inside of the car [within view] or laying [sic] outside of the car, although tools were on a bench and hanging on the walls of the garage. The deceased’s hands showed no signs of dirt or grease. The hands were clean. The car was spotless inside as well as it was outside.

An autopsy performed by Dr. Gilman revealed that the physical cause of death was asphyxiation by carbon monoxide and alcohol.

Plaintiff testified that her husband was 26 years of age. He constantly “worked on his ear” and would, upon occasion, tune up the engine in the garage, always leaving the garage door open “slightly.” She admitted that for a period of time preceding his death there had been serious marital discord, nevertheless, she stated that their disagreements had been resolved, that Robert had just purchased a part-interest in a tavern, they had planned a vacation motor trip to begin the following Tuesday or Wednesday and that her husband was to have commenced working full time at the tavern upon his return from vacation.

In her testimony plaintiff said that Robert was a “very heavy” drinker and that prior to his death he had been drinking i.o excess. She further testified that on the evening of April 16 she and Robert ate a pizza pie and “had a couple of beers.” She then put their daughter to bed, while Robert had another few drinks and went into the garage (dressed in his bathrobe, underwear and slippers) to check the windshield wipers and radio of the automobile in preparation of their trip. While she was watching a television movie she heard the motor of the car turned on and off several times. At the end of the picture she went to the garage to inform Robert that the “show” was over, at which time she found him in the car in the condition mentioned above.

The report from the State Police Laboratory was introduced into evidence. It indicated that Robert’s blood sample contained 45% carbon monoxide hemoglobin and 0.046% ethyl alcohol (an amount of alcohol which statutorily gives rise to the presumption that one driving an automobile in such a condition is not under the influence of intoxicating liquor. N. J. 8. A. 39 :4—50.1). Moreover, the laboratory report indicated that there was an absence of any librium or any barbiturate traces in the stomach of the deceased.

Defendant alleges on appeal that the trial court erred in refusing to admit into evidence (1) the official certificate of death, (2) the opinion of Dr. Gilman as to the cause of death, (3) an opinion by Trooper Walsh as to the cause of death, and (4) a note found on decedent’s desk in his den. These points will be considered seriatim.

(1)

The death certificate was signed on April 17 by the county physician who noted therein that death was due to “carbon monoxide, alcohol and librium.” The doctor checked with an “X” the suicide block (one of three blocks, accident-suicide-homicide) above the words “to the best of my knowledge,” thus indicating his opinion that decedent had committed suicide. The trial court refused to admit the death certificate into evidence, although it did admit in evidence the State Police Laboratory report which bore the heading, “Michael J. Biro Apparent Suicide.”

The records of a county medical examiner are viewed with such a degree of trustworthiness and reliability that they are “considered public records” and “shall be received in any court in this State as evidence of the matters and facts therein contained.” N. J. S. A. 40:21-30.10. (Emphasis added). Cf. N. J. S. A. 52:17B-92. The much broader statute, N. J. S. A. 2A:82-12, which relates to all “copies and records of returns of vital statistics,” declares that any original certificate “shall be received as prima facie evidence of the facts therein stated * * *.” These statutes iterate the public record exception to the hearsay rule now embodied in Evidence Rule 63(15). See Aitken v. John Hancock Mutual Life Ins. Co., 124 N. J. L. 58, 60 (E. & A. 1940).

Recently our Supreme Court considered these legal principles in a manslaughter case, State v. Reddick, 53 N. J. 66, 68 (1968), and held that a trial judge correctly admitted into evidence a report of the .medical examiner, who had died prior to trial, after excising from it all matters of opinion as to the cause of death. Nonetheless, the question of the admissibility of such evidence in a suit to enforce an insurance contract, wherein the defense of .suicide is raised, is one of novel impression in New Jersey. The one case in which this issue lurked in the record was decided prior to our present evidence rules and failed to resolve the precise question before us. See Devlin v. Surgent, 18 N. J. 148, 155 (1955).

Suicide is, generally speaking, a defense to the enforcement of an insurance policy. 43 Am. Jur. 2d, Insurance, § 1195, at 1112 (1969). There is a divergence of opinion in decision of other jurisdictions that have wrestled with the problem of admitting a death certificate as prima facie proof of a suicide death. See 5 Wigmore, Evidence (3d ed. 1940), § 1646, at 586; Annotation 21 A. L. R. 3d 418, 449-456 (1968).

A review of the cases precluding admission indicates that the exclusion was generally predicated on either (1) the lack of a statute making such a report presumptive evidence of the “matters and facts” therein stated, see New York Life Ins. Co. v. Anderson, 66 F. 2d 705, 706 (8 Cir. 1933); Carson v. Metropolitan Life Ins. Co., 156 Ohio 81. 104, 100 N. E. 2d 197, 203 (Sup. Ct. 1951); World Insurance Company v. Kincaid, 145 So. 2d 268, 275 (Fla. App. Ct. 1962), cert. den. 157 So. 2d 517 (Fla. Sup. Ct. 1963) ; 30 Am Jur. 2d, Evidence, § 1009, at 143 (1967) ; or (2) the failure oE a proper foundation, inherent in the report, to support an opinion, see New York Life Ins. Co. v. Miller, 65 App. D. C. 129, 81 F. 2d 263, 268 (1935); Schmidt v. Supreme Council of Royal Arcanum, 207 S. W. 874, 877 (Mo. App. Ct. 1919) ; Morlon v. Equitable Life Ins. Co., 218 Iowa 846, 254 N. W. 325, 96 A. L. R. 315 (Sup. Ct. 1934) ; Annotation, 28 A. L. R. 2d 353, 364-365 (1953).

In contradistinction, as previously noted, our statutes declare such a report to be prima facie evidence of the “official determinations contained therein,” Szumski v. Dale Boat Yards, Inc., 48 N. J. 401, 406, cert. den. 387 U. S. 944, 87 S. Ct. 2077, 18 L. Ed. 2d 1331 (1967), and our evidence rules permit expert opinion on the ultimate issue. Evidence Rule 56(3) provides that “Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” See also Report of the New Jersey Supreme Court Committee on Evidence 110 (March 1963). This practice is consonant with many jurisdictions which have admitted death certificates if made pursuant to a statute and the record thereof was properly kept as required by law. Metropolitan Life Ins. Co. v. Butte, 333 F. 2d 82, 83 (10 Cir. 1964); Fleetwood v. Pacific Mut. Life Insurance Company, 246 Ala. 571, 21 So. 2d 696, 700 (Sup. Ct. 1945); Annotation, 96 A. L. R. 324, 324—325 (1935); cf. State v. Reddick, supra; Nestico v. D. L. & W. R. R. Co., 4 N. J. Misc. 418, 420, 133 A. 83, 84 (Sup. Ct. 1926).

Pragmatically, such proof is mere evidence only and not conclusory. See, e. g., Aetna Life Ins. Co. v. McLaughlin, 370 S. W. 2d 229, 235 (Tex. Civ. App. 1963), rev’d on other grounds 380 S. W. 2d 101, 9 A. L. B. 3d 1005 (Tex. Sup. Ct. 1.964); Annotation, supra, 21 A. L. R. 3d, at 449-452. Here the medical examiner was available for cross-examination and there appears to be no reason why the jury should have been deprived of the benefit of the official record subject to full interrogation of the author, the county medical examiner, as to the “matters and facts therein contained.” Both the report and the doctor’s testimony were relevant and illuminative. As Professor McCormick so aptly stated, “A brick is not a wall,” McCormick, Evidence, § 152, at 317 (1954), and the evidence thus adduced would not compel a particular verdict.

Singularly persuasive is the reasoning of Justice Frick of the Utah Supreme Court:

* * * if the plaintiff * * * is not satisfied with the statement contained in the certificate of death, he may always contradict the record by any proper evidence. Again, he may always call the attending physician and have him explain, if explanation be deemed necessary. * * * If, therefore, a certificate conforms to the statute, and is properly certified, there is no room for judicial construction or interpretation respecting its meaning nor to what extent it constitutes prima facie evidence. [Bozicevich v. Kenilworth Mercantile Co., 58 Utah 458, 199 P. 406, 17 A. L. R. 346, 350 (Sup. Ct. 1921)]

Dean Wigmore has argued that, “A main purpose of the system would be defeated if the records [a death certificate] were not liberally available in litigation.” Wigmore, supra, § 1646, at 591. See Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 129 A. 379, 381 (Sup. Ct. Err. 1925) ; cf. State v. Reddick, supra, 53 N. J., at 68; Miller v. Trans Oil Co., 18 N. J. 407, 413 (1955).

In our view an official death certificate made and filed as required by law is admissible as prima facie evidence, but all matters of opinion therein should be excised if the certifying medical examiner is not available for cross-examination.

(2)

The trial judge refused to permit the medical examiner to testify as to his opinion on whether decedent had committed suicide; he ruled that the witness could not opine a “legal conclusion.”

The prime objection to the admission of such testimony is that a conclusion of suicide necessitates a finding of the intention of the decedent. It is argued that a medical expert, competent to testify as to the physical cause of demise, has neither the expertise nor the factual foundation to give an opinion regarding intention. Indeed, a foundation for an opinion must be demonstrated, Evidence Rule 19, because a conclusion based upon a supposition by one having no greater skill than the trier of fact is inadmissible. Priest v. Poleshuck, 15 N. J. 557, 563 (1954). In the present case there was an adequate foundation. The witness was the county physician, who not only conducted the autopsy but also observed the decedent’s body prior to the autopsy as well as the surrounding conditions where death occurred.

The crux of the instant problem is the application of Evidence Rule 56, “Testimony in the Eorm of Opinion,” which in pertinent part reads: This rule ivas adopted to avoid.the traditional restriction on opinion testimony that a witness could not “usurp the function” of the trier of fact. See, e. g., Klinke v. Great Northern Life Ins. Co., 318 Ill. App. 43, 47 N. E. 2d 506, 509 (App. Ct. 1943). Cf. Bergen County Traction Co. v. Bliss, 62 N. J. L. 410, 415 (E. & A. 1898); Report of the New Jersey Supreme Court Committee on Evidence, supra. The rationale underlying the exclusion was that there existed a “moral impropriety or a tactical unfairness in the witness’ expression of opinion.” Dean Wigmore viewed this reasoning as “empty rhetoric” and declared, “it should be entirely repudiated.” 7 Wigmore, supra, § 1920, at 17. See also McGormick, supra, § 12, at 26; Tyree, “The Opinion Rule,” 10 Rutgers L. Rev. 601, 605-606 (1956). But see McClelland, v. Great Southern Life Ins. Co., 220 S. W. 2d 515 (Tex. Civ. App. 1949).

>s * * (2) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (a) based primarily on facts, data or other expert opinion established by evidence at the trial and (b) within the scope of 1he special knowledge, skill, experience or training possessed by the witness. IB) Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. [Emphasis added]

The test of admissibility of such testimony has been defined as

* * * whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue. [Rempfer v. Deerfield Packing Corp., 4 N. J. 135, 142 (1950) ]

See also Nesta v. Meyer, 100 N. J. Super.. 434, 442 (App. Div. 1968). Appropriately restated, the standard for admission appears to be that “the jury should have help if it is needed.” 7 Wigmore, supra, § 1921, at 18. “The modern tendency is to receive such expert testimony where it appears that the trier of the facts would thereby be assisted in the solution of the ultimate problem.” Shutha v. Pennsylvania R. R. Co., 74 N. J. Super. 381, 401 (App. Div.), certif. den. 38 N. J. 183 (1962). Note, Pincus v. Sublett, 26 N. J. Super. 188 (App. Div.), certif. den. 13 N. J. 294 (1953). Accord, 31 Am. Jur. 2d, Expert and Opinion Evidence, § 22, at 520 (1967).

Any testimonial or experimental weaknesses of the witness can he exposed on cross-examination, and the credibility and weight to be accorded his testimony are in the domain of the trier of fact. Angel v. Rand Express Lines, Inc., 66 N. J. Super. 77, 85-86 (App. Div. 1961); 31 Am. Jur. 2d, supra, at 521. It has been observed:

* * * any details which the expert has personally observed can be elicited either on direct examination or on cross-examination, and these details can be associated with the other grounds for the genera] conclusion; and if it is discovered that any essential facts have been overlooked, the weight of his opinion will thereby be weakened or entirely destroyed. The opinion of an expert, the grounds upon which it has been formed, and the weight to be accorded to it are all matters for the consideration of the jury. [Langenfelder v. Thompson, 179 Md. 502, 20 A. 2d 491, 494 (Ct. App. 1941)]

Unlike State v. Reddick, supra, where the assistant medical examiner who performed the autopsy had died prior to the trial, here the county physician was in court and was available to testify and to be cross-examined with respect to his opinion as to the cause of death as reflected in the official death certificate which was a matter of public record. We hold that it was prejudicial error on the part of the trial court to refuse to permit the county physician, in the circumstances of this ease, to testify as to his opinion on the issue oi suicide.

(3)

The trial judge excluded testimony of the investigating state police officer as to whether the death was a suicide.

Although the witness had six years of police experience and his investigation of decedent’s death was in the performance of his official duties, he was not an expert and his opinion testimony was not admissible under the nonexpert opinion rule. Emdence Rule 56(1). Accordingly, the trial judge properly ruled that the proffered evidence be excluded since the officer could not give an opinion rationally based on his own experience and perception. This exclusion was an appropriate exercise of judicial discretion. See Evidence Rules 4, 8(1) and 19. Absent a clearly erroneous exclusion or plain abuse of discretion, the decision of the trial judge should not be disturbed. Sanzari v. Rosenfeld, 34 N. J. 128, 136 (1961); Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 411 (1960).

(4)

Defendant argues that a scribbled note, admittedly in decedent’s handwriting, found on a desk in decedent’s den, “where the bottle of brandy and pill bottles were found,” was improperly excluded from evidence. The writing was not admitted because the time of its making was not established, and the trial judge viewed it as unduly prejudicial.

The undated note contained s list of odd jobs to be performed about the house, followed by a two-column list of words and doodled symbols of apparent religious connotation. It is, indeed, questionable whether the writing was a “suicide note.” Hence, it appears that the note was properly excluded under Evidence Rule 4 which provides:

The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will * * *
(b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

See Stoetling v. Hauck, 32 N. J. 87, 103 (1960).

The challenged rulings of the trial court are affirmed in part and reversed in part, and the matter is remanded for a new trial consistent with this opinion.

Matthews, J. A. D.

(dissenting). My disagreement witli the majority opinion arises because I believe it focuses on the error of the trial judge’s stated reason for excluding the medical examiner’s testimony, i. e., that the witness could not opine “a legal conclusion,” instead of on the substantive issue involved, i. e., what is the scope of expertise of a medical examiner.

In Priest v. Poleshuck, 15 N. J. 557 (15)54), Mr. Justice Heher, in his opinion for the court, stated:

Knowledge is requisite to testimonial qualification. In assaying opinion evidence, for competency, tie distinction is generally between tie expert and the non-expert — tie witness who is skilled and specially experienced in tie particular field, and the witness who has only the common knowledge and experience of mankind. Prom the latter, only facts perceived by the use of their senses, and not mere opinion, inferences, or conclusions based upon the facts supposedly within their knowledge, are adducible in evidence, for the assessment of the facts involving common knowledge and experience is the exclusive province of the jury or other fact-finding authority. The witness in the latter category cannot offer his opinion of the probative worth of the facts. But he has more leeway where the facts are incapable of reproduction and comprehension by mere description. And testimony is of necessity ofttimes compounded of both fact and opinion, [at 562 : citations omitted]

The majority, recognizing this rule, finds there was an adequate foundation for the testimony by the medical examiner. They state that “The witness was the county physician, who not only conducted the autopsy but also observed the decedent’s body prior to the autopsy as well as the surrounding conditions where death occurred.”

Mr. Biro was found slumped over in the front seat of his car with the motor running and the garage door closed. He died, apparently, of carbon monoxide poisoning and alcohol. The medical examiner did not find the body nor did he move it. He saw the body after it had been removed to a couch in the recreation room of decedent’s home where it had rested fox a number of hours.

It escapes me why the medical examiner is considered specially competent to testify to whether Biro accidently fell asleep, fell into a drunken stupor from which he never recovered, was felled by carbon monoxide gas while working on his ear, or committed suicide. In reaching his suicide conclusion, the medical examiner had to depend upon facts which were related to him by plaintiff and others — facts of which he had no direct knowledge.

Every witness called in a legal proceeding is permitted to make conclusions within the scope of his imputed knowledge. Such statements as “it was hot,” “he was drunk,” “she was driving 80-90 miles per hour,” are examples of these types of conclusions. An expert witness merely has an expanded body of knowledge or skill in one or more particular fields which are beyond the scope of laymen called for jury service. It is to help the jurors that he is permitted to testify as to conclusions to be drawn from the scope of his enlarged expertise.

A medical examiner is probably uniquely situated to draw such conclusions as “X died of carbon monoxide poisoning,” “X died of a blow to the rear of the head,” “X died in a particular position and was moved,” or “X was killed by a bullet which entered his brain and was fired at an angle of 30 degrees from the horizontal from no shorter than 300 yards.” However, a medical examiner has no special competence to testify as to the perpetrator of the bullet in the last given example. Whether X rigged a high-powered rifle to kill himself as he stood in a certain place, or whether X was assassinated, depends on the jury’s evaluation of a medical examiner’s conclusion as to physiological causation and also on other evidence produced on the matter.

The majority ignores the difference between a conclusion of the medical examiner that “X died of carbon monoxide poisoning and alcohol” and “X died of carbon monoxide poisoning and alcohol by his own hand and he intended to kill himself.” 1 believe that permitting the medical examiner to testify as to the conclusion of suicide, as the majority would, tends to mislead the jury into thinking that he knows something that they do not know. What is at stake here is nothing less than the myth cult of the expert to whom too many individuals are inclined to look for wisdom. My position does not derive from an anti-expert bias, but from a respect L‘or the duties and limits of the jury. I believe that the admission of such a conclusion would confound and distort the delicate balance which is the fact-finding process. The jury is perfectly competent, given the medical and physical evidence, to come to its own conclusion about whether the death was a suicide. The majority also cites the Report of New Jersey Supreme Court Committee on Evidence, p. 110, (March 1963) as supportive of its conclusion. I draw attention to other language on that same page:

In Shutka v. Pennsylvania R. R. Co., 74 N. J. Super. 381, 181 A. 2d 400 (App. Div), certif. denied, 38 A. J. 183 (1962), the Appellate Division, citing Uniform Rule 56 (4), recently held that it was proper to permit an expert witness to give an opinion, on an ultimate fact, the test being whether “the trier of the facts would thereby be assisted in the solution of the ultimate problem.”

The Committee also pointed out that

* * * such questions as “Was the defendant negligent?” “Is the accused guilty?” or “Did the defendant have reasonable cause to institute the prosecution?” would be impermissible on the basis either that under 56 (1) (b) they are not “helpful,” or under Rule 45*. (at 110).

I believe there can be properly added to the above list questions such as “was this second degree murder?” and “was this suicide ?”

With respect to the admission of the contents of a certificate of death which is governed by N. J. S. A. 2A :82-12, declaring that any original death certificate “shall be received as prima facie evidence of the facts therein stated * * *,” I believe that the majority ignores that the statute refers to facts and not conclusions. “Suicide” is not a fact but a conclusion. Suicide includes both the notion of the instrumentality of death being the decedent (directly or indirectly) and the notion that the decedent intended to take his own life. The medical examiner’s checking of the suicide box on the death certificate is merely a shorthand way of stating his conclusion that the elements of suicide are made out.

The trial judge, iu my view, came to the right result (i. e. exclusion) for a slightly erroneous reason. The proposed testimony of the medical examiner was not a “legal conclusion/5 but a conclusion, an opinion, for which the medical examiner had no special competence.

I concur in so much of the majority opinion as is set forth in points three and four with respect to the testimony of the state police officer and the admission of the so-called suicide note.

I would affirm.


author: Collester, J. A. D.

text:
    BOULEVARD APARTMENTS, INC., PLAINTIFF-APPELLANT, v. MAYOR AND COUNCIL OF THE BOROUGH OF LODI, ETC., ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 10, 1969
    Decided June 8, 1970.

      Before Judges Cofeoed, Collester and Kolovsky.

      Mr. Benedict Krieger argued the cause for appellant (Messrs. Krieger & Klein, attorneys).

      Mr. John JDi Maria argued the cause for respondents (Messrs. Carbonetti & Di Maria, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by Boulevard Apartments, Inc. from a judgment of the Law Division upholding the validity of a resolution adopted by the Borough of Lodi which excluded garden-type apartment houses from receiving municipal garbage collection service.

Appellant is the owner of a garden-type, apartment house complex consisting of six two-story buildings containing a total of 108 family units. Each building consists of a grouping of four-family units separated by fire walls and sharing a common roof. Prior to January 1, 1969 the garbage from these apartments was collected by a contractor hired by the borough to collect garbage placed in receptacles at the street curb from residential buildings and other specified places, excluding light and heavy industry, warehouses and supermarkets. On December 9, 1968 the Lodi municipal council adopted a resolution which established new classifications of properties which were to be excluded from receiving municipal garbage collection service after January 1, 1969. The resolution contained the following specifications upon which bids for a five-year garbage collection contract were to be based:

Two collections weekly from all residential dwellings, places of business, cliurebes, club houses, lodge rooms, public buildings, public and parochial schools, gasoline stations and all public housing operated by the Housing Authority of the Borough of Lodi (not including garment manufacturing shops, light or heavy industry, warehouses, supermarkets, garden type apartment houses and high rise apartment houses).

On December 23, 1968 the borough awarded a five-year contract to Vito Stamato based on his bid of $940,000.

Boulevard Apartments, Inc. brought an action in lieu of prerogative writs to invalidate that part of the resolution which excluded garden-type apartment houses from receiving garbage collection service, contending that it was unreasonable, capricious and discriminatory. (Grand View Manor, Inc., the owner of a garden-type apartment house containing 24 family units, also joined in the action as a party plaintiff but is not a party to this appeal.)

At the trial it was established that there are 38 garden-type apartment houses listed in the borough containing from 1400 to 1470 family units which, with the exception of appellant and Grand View Manor, Inc., have garbage collected by privately hired contractors. (Stamato, called as a witness by defendants, testified that the quantity of garbage generated at the apartment complexes other than those of plaintiff and Grand View Manor, Inc. was so great that storage pending twice-a-week collections created health problems. As a result, the owners of those apartments arrange for private container services, with daily collections of garbage.) Stamato testified that if the borough was required to collect garbage from all garden-type apartments the additional annual cost to the municipality would be $75,000 to $80,000. There also was evidence that there were numerous other multiple-family dwellings in the borough, ranging from two-family to eight-family houses, all of which have garbage collected by the municipal collection service. A substantial amount of the testimony was devoted to a comparison of the per-acre population density of garden-type apartment houses and that of ordinary residential dwellings, and the difference in quantity of garbage produced.

The court held that the resolution excluding garden-type apartment houses from receiving municipal garbage collection service was valid and the exclusion was not unreasonable or discriminatory. In arriving at this decision the court concluded that garden-type apartment houses were not in the same category or classification as other types of residential dwellings because they were commercial ventures and the quantity of garbage produced from a garden-type apartment house per family unit was three times that of a private dwelling. This appeal followed.

The principal contention urged by appellant for a reversal is that the classifications set up by the resolution are so clearly arbitrary, unreasonable and discriminatory as to render them invalid. It argues that there is no rational basis for differentiating between garden-type apartment houses and other residential dwellings when determining what properties are to be furnished curbside garbage collection.

The removal and disposal of garbage and other refuse matter is recognized as a proper subject for the exercise of the power of a municipality to adopt legislation designed to promote the public health, comfort and safety. N. J. 8. A. 40:66—1 provides that a municipality may provide for the collection, removal ■ and disposal of garbage and may establish and operate a system therefor.. It may contract with a person to collect the garbage (N. J. 8. A. 40:66-4) and provide that the cost of doing the work be paid from its general funds or may fix rates to be charged by the municipality for such service (N. J. 8. A. 40:66-5). Municipalities have wide latitude in determining the manner of control of garbage and their pertinent ordinances and resolutions, being entitled to the customary presumption of legislative validity, will not be upset unless palpably unreasonable. Dover Tp. v. Witt, 7 N. J. Super. 259, 262 (App. Div. 1950).

However, municipal legislation relating to garbage collection and disposal must be reasonable and not arbitrary or oppressive. 7 McQuillin, Municipal Corporations (rev. ed. 1968), § 24.245, at 87. Legislation limiting the collection of garbage to certain classifications is not forbidden. However, there can be no invidious discrimination in the establishment of such classifications. There is a denial of equal protection of the laws unless the service is available to all persons in like circumstances upon the same terms and conditions. Persons situated alike shall be treated alike. See Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N. J. 229, 233 (1952).

Thus, the question involved in the instant case is whether the municipal resolution is invalid as unreasonable and discriminatory because it places garden-type apartment houses in a classification separate and apart from other residential dwellings in order to exclude such properties from receiving the benefits of garbage collection service. The question has apparently not been dealt with by the courts of our State or of other jurisdictions. The cases cited by respondent and relied upon by the trial court are inapposite. Por the most part they relate to municipal ordinances which limit the quantity of garbage or ashes to be collected from an apartment house, a subject with which we are not here concerned.

We can discern no rational basis for differentiating between garden-type apartment houses and all other residential dwellings, because apartments are rented to tenants and the owner may realize a profit on his investment. The resolution in question makes no distinction between owner-occupied dwellings and those rented for income. The evidence reveals that there are numerous rented multi-family dwellings containing from two to eight family units which are not precluded from receiving municipal garbage collection service. Moreover, the resolution on its face provides for collection from public housing projects and various places of business.

We also find no reasonable justification for the municipality to classify garden-type apartment houses differently from other residential dwellings on the basis of the quantity of garbage produced and the cost of collection thereof. It is apparent that the trial court misunderstood the testimony in arriving at a conclusion that the quantity of garbage produced from each garden apartment family unit was three times that of a private dwelling. The record clearly shows that the garbage produced by a one-family unit in an apartment house and a one-family dwelling house is substantially the same. Moreover, it is clear that the cost of collection from family units in an apartment house where the accumulated garbage is concentrated in one spot to be picked up at the curb is unquestionably less than the cost of collection from an equal number of family units residing in separate private dwellings.

We conclude that that part of the municipal resolution which classifies garden-type apartment houses separately from other dwelling houses and thereby denies such properties an equal right to garbage collection service is unreasonable, discriminatory and invalid and cannot be enforced.

In view of our decision we deem it unnecessary to pass on the other points raised in appellant’s brief, except to note that it was error to refuse to admit into evidence the Lodi ordinance regulating the collection of garbage in effect both when the resolution here under attack was adopted and at the time of the trial. That ordinance provided in section 3 thereof that

No person shall engage in the removal and disposal of garbage, ashes, refuse and trash from any residential premises, school or church within the Borough of Lodi, unless it be pursuant to contract between each person and the Borough of Lodi.

Altogether apart from the issue of illegal classification, the resolution embodying the refusal of the municipality to continue to furnish garbage removal service to garden apartments, which by ordinance were precluded from obtaining that service from other persons, was clearly arbitrary and illegal. However, the problem presented by the garbage collection ordinance no longer exists. The ordinance was amended on March 3, 1969, a month after entry of the judgment in this case, to permit private garbage collection from garden apartments.

The judgment is reversed and the case remanded to the Law Division for the entry of judgment in conformance with this opinion.


author: Hekbeet, J. S. C.

text:
    CATALDO CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF, v. COUNTY OF ESSEX, A BODY POLITIC OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 20, 1970.

      Mr. A. Vincent Gasparine, attorney for plaintff.

      Mr. Irwin I. Kimmelman, attorney for defendant (Mr. Anthony L. Gecere, appearing).
   Hekbeet, J. S. C.

This case arises ont of competitive bidding on public construction work. Cataldo Construction Company (Cataldo) is a general contractor having its business office in Orange. In response to advertising by Essex County (county), Cataldo submitted, on May 22, 1969, a bid of $24,233 for work to be done on the lower Chatham Bridge, which spans the Passaic River between Morris and Essex Counties. To its hid Cataldo attached a certified deposit check in the amount of $2,500, as required by the instructions to bidders.

When the bids were opened on May 22, 1969 the Cataldo bid was found to be the lowest of those submitted. A resolution of the board of freeholders of Essex formally approved the award of the contract to Cataldo that same day. Although the advertisements soliciting bids made no mention of any active participation in the project by Morris County, the Essex resolution was expressly made contingent on a concurring resolution by the board of freeholders of Morris County. Such a concurring resolution was adopted in Morris six days later, on May 28, 1969.

Cataldo’s hid had been prepared hurriedly to meet the advertised deadline. As a result of the haste a serious mistake was made in the figure submitted. One of the amounts transferred from Cataldo’s work sheet to its sheet for totals was mistakenly listed at $13,822, rather than at $23,822, as it should have been. The mistake was then carried over to the typewritten proposal, which was delivered by hand to the county a few moments before bids were opened.

The $10,000 mistake was discovered the day after the bids were opened and the Essex resolution adopted, but five days before the adoption of the Morris resolution. Ho proofs have been offered as to whether Cataldo (1) knew at this stage that the Essex resolution was contingent on concurrence by the freeholders of Morris County, and (2) made any efforts to notify tlie proper parties in Morris before the adoption of that county’s resolution. It is clear, however, that immediately upon the discovery of the error Cataldo’s president telephoned the Essex County engineer to explain the mistake. A few days later, apparently before the Morris resolution was adopted, Cataldo’s president met with the Essex engineer, showed him the work sheets, and was told nothing could be done to correct the error. By letter dated May 28, 3969 Cataldo again gave Essex County notice of the error and requested that its bid be withdrawn.

Essex County has refused to rescind the bid and return Cataldo’s deposit check. Cataldo commenced this action as a result, naming Essex County as the sole defendant. Both parties are treating the dispute as a matter solely between themselves and not involving Morris County.

Cross-motions for summary judgment are before the court. Cataldo seeks rescission of the bid and return of the deposit; the county asserts that the bid should not be rescinded and that it is entitled to retain the deposit as a forfeiture for Cataldo’s failure to sign a contract and perform the work at a price of $24,233. There are no issues of fact, as the county’s brief admits all of the facts as stated by Cataldo.

The law is clear that a competitive bid is an option based upon a valuable consideration, namely the privilege of bidding and the legal assurance to the successful bidder of an award as against all competitors. Conduit & Foundation Corp. v. Atlantic City, 2 N. J. Super. 433, 438 (Ch. Div. 1949) ; Lupfer & Remide v. Freeholders of Atlantic, 87 N. J. Eq. 493, 497 (Ch. 1917). As such, the bid is both an offer and a unilateral contract; when it is accepted, it becomes a mutually binding contract. Conduit & Foundation Corp. v. Atlantic City, supra, at 439; Schlein v. Gairoard, 127 N. J. L. 358, 359 (E. & A. 1941). So here, the acceptance of Cataldo’s bid by the appropriate governing bodies of Essex and Morris Counties created a valid contract.

The question becomes, then, whether Cataldo is to be relieved in equity from the obligations of its contract. The sole ground asserted for relief is Cataldo’s unilateral mistake in the computation of its bid. “[I]t is the general rule that a unilateral mistake of fact, unknown to the other party, is not ordinarily ground for avoidance or rescission.” N. Y. Sash, etc., Inc. v. National House, etc., Inc., 131 N. J. L. 466 (E. & A. 1944); 17 C. J. S., Contracts, § 143. Nevertheless, there can be no question but that equity may, under appropriate circumstances, grant relief by way of rescission for a unilateral mistake of fact. Cardell, Inc. v. Madison Tp., 105 N. J. Super. 594, 600 (Law Div. 1969), rev’d on other grounds, 54 N. J. 151 (1969); Panco v. Rogers, 19 N. J. Super. 12, 17 (Ch. Div. 1952); Conduit & Foundation Corp. v. Atlantic City, supra, at 439; Barlow v. Jones, 87 A. 649 (Ch. 1913 — not officially reported); 17 C. J. S., Contracts, § 143; 17A C. J. S., Contracts, § 418(2). To qualify for the equitable relief sought, Cataldo must show special circumstances justifying a departure from the generally controlling principle that parties are bound by the contracts they make for themselves.

The leading case in New Jersey on the question at hand is Conduit & Foundation Corp., supra. There, as here, plaintiff erred in computing a bid for the performance of construction work and the resultant figure was substantially lower than it would otherwise have been. Although the city was informed of the error before it accepted the bid, still it refused to allow the attempted withdrawal of the bid and insisted on its right of acceptance. Plaintiff sued for equitable relief on the ground of unilateral mistake of fact. The ease was tried before Judge (now Justice) Haneman, then sitting as a Superior Court judge in Chancery. In his reported opinion, Judge Haneman set forth the criteria for relief as follows:

The essential conditions to such relief by way of rescission for mistake are (1) the mistake must be of so great a consequence that to enforce the contract as actually made would he unconscionable: (2) the matter as to which the mistake was made must relate to the material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and (4) it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain. [2 N. J. Super, at 440]

Judge Han email found that under the circumstances before him each of these conditions had been met. That being the case, he allowed plaintiff to rescind the bid and recover the accompanying deposit.

For additional authority similar to Conduit & Foundation Corp., supra, see State Highway Commission v. State Construction Company, 203 Or. 414, 280 P. 2d 370, 52 A. L. R. 2d 779 (Sup. Ct. 1955); Annotation, “Bid for public contract — mistake,” 52 A. L. R. 2d 792 (1955). In the cited annotation many cases are collected.

Putting aside for the moment the question of Cataldo’s care in the preparation of its bid (the third criterion listed above), it appears that Cataldo is otherwise entitled to the relief sought.

The mistake reduced Cataldo’s proper bid from $34,233 to $24,233, a substantial margin of error. Moreover, Essex County’s refusal to allow Cataldo to revoke its bid upon discovery and immediate notification of the error — and before the necessary acceptance of the bid by Morris County — lends additional strength to the conclusion that to enforce the contract here as actually made would be unconscionable. As Judge Haneman said in Conduit & Foundation Corp., supra:

Not only was the mistake of so great a consequence, but the defendant’s conduct as well was such as would make an enforcement of the contract unconscionable. [2 N. J. Super, at 441]

The matter to which the mistake related — the price — was obviously a material feature of the contract.

Although the remedy of rescission for unilateral mistake ordinarily is only available so long as the status quo ante can be restored, Dencer v. Erb, 142 N. J. Eq. 422, 429 (Ch. 1948); Howell v. Baker, 106 N. J. Eq. 434, 439 (Ch. 1930), there is no indication here that Essex County would be, or has been, seriously prejudiced by rescission, except for the loss of its bargain. It is true that in Conduit & Foundation Corp., supra, the mistake was discovered and revocation of the bid attempted prior to acceptance by the contracting governmental body, with Judge Haneman proclaiming that “under the facts here present, such bid was promptly rescinded within time.” 2 N. J. Super, at 442. However, in Barlow v. Jones, supra, an earlier case cited with approval in the Conduit & Foundation Corp. opinion, a contractor was allowed rescission of his bid and return of his deposit on the ground of his own unilateral mistake of fact, despite the fact that the error there was first discovered after the bid had already been accepted. Vice-Chancellor Reed in Barlow pointed out that there had been no prejudice to defendants such as would bar plaintiff’s right to relief:

Notice was promptly given to 1he commission of the existence of the mistake and of Mr. Barlow’s inability to execute the contract. The commission then accepted the bid of the next highest bidder just as it would have done had Mr. Barlow never bid. There has been no change in the status of the parties induced by the belief that Barlow would execute his contract or by any negligence in promptly reporting the mistake. [87 A. at 650]

Here, Ca laido discovered its error and called the attention of Essex County to it before the acceptance of Morris County and at a time when no serious prejudice had been suffered by Essex County. Cataldo’s claim for equitable relief cannot be defeated on this basis.

So we come finally to the troublesome issue of whether Cataldo exercised reasonable care in the preparation of its bid. As was indicated in the preceding discussion of Conduit & Foundation Corp., equitable relief is not available for unilateral mistakes of fact caused by a failure to exercise reasonable care. Crane v. Bielski, 15 N. J. 342 (1954); Panco v. Rogers, supra; Fidelity Chemical Products Corp. v. Rubino, 1 N. J. Super. 184 (App Div. 1949); Murray v. D’Orsi, 98 N. J. Eq. 548, 550 (Ch. 1925). The question then becomes, what is “reasonable”? Whether the negligence of the mistaken party is of such a degree as to bar equitable relief depends in each case on the particular circumstances. In Crane, supra, the court made these comments:

There are many instances in which the equity courts have in their discretion refused relief where there was negligence on the part of him by whom the doctrine of mistake was invoked. * * * But in Murray v. D’Orsi, 98 N. J. Eq. 548 (Ch. 1925), the court observed that “a party’s own negligence will not always occasion refusal of relief * * each instance of negligence must depend to a great extent upon its own circumstances,'’ and that in many instances “the complaining party has been relieved of the consequences of his mistake of fact, even where it was due to his own clear negligence.”
*■ * * * * * * .(e
“Mistake,” by its very definition, implies some degree of negligence. Human failing is its essence and it denotes error of judgment. However, it still remains the obligation of a court of equity to determine whether, despite such misjudgment, it would be inequitable and fundamentally unjust not to set aside the sale [15 N. J. at 347 and 343]

Cataldo does not have proofs to excuse its mistake as strong as the evidence offered by the contractors in Conduit & Foundation Corp. and in Barlow v. Jones, supra, to excuse their respective errors. In Conduit & Foundation Corp. it was shown that work on the contractor’s bid was quite complex and time consuming, and that on the whole it had been carefully done. Judge Haneman concluded:

Under the facts here present, the plaintiff exercised a reasonable degree of care in preparing its bid. It was not guilty of a lack of that degree of care which a reasonably prudent person should exercise. [2 N. J. Super, at 442]

And in Barlow v. Jones, supra, the proofs indicated that the contractor was a sick man who broke down during the preparation of his bid and was unable to continue; the error in that case was produced by the contractor’s bookkeeper, who compassionately and hurriedly completed the bid. ViceOhancellor Reed decided under the circumstances that “the mistake was one which * * * might occur to a careful man and was certainly one which cannot be characterized as grossly negligent.” [87 A. at 650]

In the present case the affidavits of Anthony G. Cataldo and his estimator, Carr, state that Carr got his instructions to prepare a bid about one week before the bidding date; that Carr met with delays in getting quotations on the prices of some materials needed for the work; that it was not until about ten o’clock in the morning of the bidding date that he was able to obtain final figures which, after a brief conference with Cataldo, were typed hurriedly on the bid form prescribed by the county. Then the bid was taken by automobile from the office of the Cataldo company to the Hall of Records just in time for delivery at the appointed hour of eleven o’clock. Carr’s affidavit reads in part:

6.1 gave the work sheets to the secretary with instructions to quickly prepare the typewritten bid. In my haste I transposed the sum of $13,822.00 from my working cost sheet P-1, instead of the true sum of $23,822.00 to my total sheet P-3-A, which shows a total of $24,233.00 instead of $34,233.00.
7. The form of bid to be typewritten consisted of only 3 total items to be typed. I instructed the secretary to fill in item 1 at $22,700.00, item 2 at $271.50 and item 3 at $261.50, totaling $24,233.00. Item 1 should have been $32,700.00 and the total therefore should have been $34,233.00. The secretary did not have the working cost sheets and could not cheek the figures.

Though pressure of time is the only real excuse, or explanation, for plaintiff’s error, my conclusion is that relief should be granted. Discovery of the mistake and the giving of notice were timely. Because of the delay in getting price quotations on materials the final bid figures were worked out and put in form for submission in an atmosphere of great haste. In that atmosphere the reporting of an incorrect figure seems normal enough to be excusable. Loss of all benefits of a bargain based on the mistake appears to be the only disadvantage to the countjr which will flow from the granting of relief. At oral argument I was furnished with the following information. When Cataldo gave notice of its mistake and refused to sign a contract at $24,233, new bids were advertised for promptly and resulted in a low bid by Cataldo at $34,233 (or substantially that amount), that being in effect a corrected version of Cataldo’s original bid and a figure lower than any bid received from any other bidder at the original bid opening. On this second Cataldo bid a contract was executed and in due course fully performed.

The annotation already mentioned (52 A. L. R. 2d 792) shows that the current of decisions in a substantial number of jurisdictions has been strongly in favor of relief for the erring contractor in situations where a mistake is promptly discovered and called to the attention of the public body before the execution of a formal contract and there is no substantial disadvantage to the solicitor of the bids other than loss of a bargain based on the bidder’s error.

There will be a judgment rescinding plaintiff’s bid of May 22, 1969 and ordering the defendant to return to plaintiff the deposit of $2,500 made when the bid was submitted.


author: Brown, E. C., J. S. C.

text:
    RUTGERS, THE STATE UNIVERSITY, PLAINTIFF, v. GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided May 25, 1970.

      Mr. Clyde Szuch, for the plaintiff (Messrs Pitney, Hardin & Kipp, attorneys).

      Mr. Fred R. Gruen, Deputy Attorney General, for the defendant (Mr. Stephen G. Weiss, Assistant Attorney General, of counsel).
   Brown, E. C., J. S. C.

This i° a declaratory judgment suit instituted by Eutgers, the State University (hereinafter Eutgers) against the Attorney General of New Jersey seeking a determination that it is not bound by (a) the provisions of N. J. 8. A. 52 :32—2, which requires the letting of multiple contracts in connection with the construction of public buildings ; (b) the provisions of N. J. 8. A. 52:35-l et seq., which requires the prequalification of bidders on such construction projects, and (e) the provisions of N. J. 8. A. 52 :34-6 et seq., which requires public bidding.

The Attorney General contends that each of these statutes applies to Eutgers and seeks a judgment that the University comply with them.

The case is now before the court on cross-motions for summary judgment.

In order to thoroughly understand the present problem and to aid the court in determining the applicability of these statutes a review of the history of Eutgers and the events leading up to the adoption of the Rutgers, the State University Law, L. 1956, c. 61, N. J. 8. A. 18A:65-1 et seq., is necessary. Such a history, up to 1956, is fully incorporated in the opinion of Judge (now Justice) Schettino in Trustees of Rutgers College in N. J. v. Richman, 41 N. J. Super. 259 (Ch. Div. 1956), and need not be repeated here. Shortly after that opinion was rendered the Rutgers Trustees voted to reorganize under the above act. This then brought about the following important changes in the relationship between Rutgers and the State:

(a) The theretofore private governing board, the Board of Trustees, yielded virtually all management, control, administration and policy-making functions to a newly created and publicly controlled Board of Governors, 6 of whose 11 voting members (majority control) are now appointed by the Governor of the State of New Jersey, with the advice and consent of the Senate. N. J. S. A. 18A:65-12, 14 (emphasis added);

(b) Rutgers’ facilities and assets remained impressed with a public trust, their beneficial use being reserved for the higher education of New Jersey residents, and as the instrumentality of the State for the purpose of operating the State University. The corporation retains the legal title N. J. S. A. 18A :65-2;

(c) the private board of Trustees gave up most of its powers, retaining only:

(1) the power to manage and invest private assets or private gifts, with income therefrom channeled to the Board of Governors;

(2) the power to appoint 5 of the 11 voting members of the Board of Governors, and

(3) an “advisory capacity” status (N. J. S. A. 18A:65-13, 15, 26), coupled with a right to withdraw the private assets should they be improperly applied by the Board of Governors or should insufficient state appropriations be forthcoming (N. J. S. A. 18A:65-27).

Contemporaneous with assumption by the State of New Jersey of effective control or hegemony over the University (after the Trustees’ acceptance of the reorganization plan, N. J. S. A. 18A:65-37), the State undertook a massive annual funding program subsidizing in great part the school’s operating budget and providing the bulk of its construction costs. This financial lifeline has grown: 1956: $10,356,303 appropriation for operating costs and $800,000 appropriation for capital construction; 1965: $24,537,924 appropriation for operating costs and $1,250,000 appropriation for capital construction; 1966: $28,816,161 appropriation for operating costs and $3,705,000 appropriation for capital construction; 1967: $33,696,587 appropriation for operating costs and $9,189,000 appropriation for capital construction; 1969: $39,292,265 appropriation for operating costs and $8,650,000 appropriation for capital construction; 1970: $47,319,840 appropriation for operating costs and $27,278,000 appropriation for capital construction.

From 1956 to June 30, 1969 Eutgers had an authorized building program in the total amount of $363,441,622. Of that sum, $191,409,841 has come from the State, as noted above. Eutgers has or will supply $85,422,953 from its own money or through borrowing, and the balance of $86,608,828 has or will come from other sources, including the Federal Government and private gifts.

Since 1956 eight buildings having a total cost of $31,145,898, were or are being built entirely without state funds, and only three new construction projects, with a cost of $1,758,449, have been entirely with state funds. During that same period there have been only six instances involving the renovation of or addition to buildings that have been financed solely with state monies, at a cost of $2,215,863. There have also been four landscaping projects with a total cost of $730,565, paid for entirely out of state funds.

The State of New Jersey, then, through the Board of Governors, controls, operates and administers Eutgers. To the extent the private Board of Trustees, because of reserved powers, acts in concert or in partnership with the State in this endeavor, it is a very limited partner with very limited inconsequential leverage. In short, Eutgers’ merger into the State and its assumption of state agency or state alter ego status is undisturbed thereby. That the Board of Trustees retains a partial private character is not denied.

The limited supervisory powers of the State Board of Education (now the Board of Higher Education) were continued (N. J. S. A. 18A:65-7) but were not extended.

As a result, a very unique type of corporate structure was created.

Eutgers was not specifically given the power of eminent domain and may not create a debt of the State in borrowing money, N. J. 8. A. 18A:65-8 and 18A:65-25(e). It is exempt from the Civil Service Law, N. J. 8. A. 18A:65-25 (i).

Eutgers argues that the 1956 act was a compact between the State and the University and contained all of the provisions governing the operation and control of Eutgers intended by both the State and the Board of Trustees to be applicable to it. It further contends that provisions, other than those of general application, not contained in the act, do not apply to it except for those statutes specifically applicable at the time of the act’s adoption, which were incorporated therein by its “existing provisions of law clause” (N. J. 8. A. 18A:65-4) unless inconsistent therewith (N. J. 8. A. 18A:65-9.1). None of the three statutes with respect to public bidding and here under consideration were specifically mentioned in the 1956 act. Accordingly, Eutgers contends that it is not subject to those statutes or any statutes applicable to state or public agencies unless the provisions were specifically incorporated therein.

It should be noted that the act of 1956 grants to the Board of Governors broad powers of authority and responsibility N. J. 8. A. 18A:65-25. This section provides in part as follows:

The board of governors shall have general supervision over and be vested with the conduct of the university. It shall have the authority and responsibility to:
* Jjt * * * # *
b. Study the educational and financial needs of the university, annually aco.naiut the governor and legislature with the condition of the university, and prepare and, jointly; with the board of higher education, present the annual budget lo the governor and legislature, in accordance with law;
c. Disburse all moneys appropriated to the university by the legislature, moneys received from tuition, fees, auxiliary services and other sources, and from or by direction of the board of trustees;
d. Direct and control the expenditures of the corporation and the university in accordance with the appropriation acts of the legislature, and, as to funds received from the trustees and other sources, in accordance with ihe terms of any applicable trusts, gifts, bequests, or other special provisions. All accounts of the university shall be subject to post audit by the state;
e. Borrow money for the needs of the corporation and the university, as deemed requisite by the board, in such amounts and for such time and upon such terms as may be determined by the board, with the consent and advice of the board of trustees; provided, that no such borrowing shall be deemed or construed to create or constitute a debt, liability, or a loan or pledge of the credit, or be payable out of property or funds (other than moneys appropriated for that purpose) of the state;
f. 1. Purchase all lands, buildings, equipment, materials and supplies ; and
2. Employ architects to plan buildings; secure bids for the construction of buildings and for the equipment thereof; make contracts for the construction of buildings and for equipment; and supervise the construction of buildings; * * *

Rutgers further argues that the power to secure bids and make contracts is clear and unmistakable. At the time of the enactment of the 1956 act, Rutgers was not subject to the public bidding statutes because it was a purely private body selling educational services to the State. Not having been subject to those statutes, and because a provision is contained in the act on the specific subject, which provision does not incorporate the public bidding statutes, the freedom of Rutgers from the provisions of Title 53 was not altered by the 1956 Act.

If the intent had been to incorporate the public bidding statutes into the 1956 act, the Legislature would have done so expressly. As stated in Garden State Parkway Employees Union v. N. J. Highway Authority, 105 N. J. Super. 168, 171 (App. Div. 1969), “It is to be noted that whenever the Legislature intended to include authorities within the ambit of certain legislation, it expressly so provided.”

A specific example can be found in the statute establishing the New Jersey Medical School, which was purchased by the State from Seton Hall University. The following provision appears therein:

The college in entering into any purchases, contracts or agreements shall be subject to the provisions of P. L. 1954, chapter 48 [hi. J. S. A. 52:34-6] and all amendments and supplements thereto. [N. J. S. A. 18A :64Cf-12]

A review of the file of the then counsel to the Governor has produced two memoranda expressly considering the question whether Rutgers, subsequent to the enactment of the 1956 act, would be bound by the provisions of the public bidding statutes. Those memoranda indicate that the University would not be bound.

In a memorandum dated May 4, 1956 from Robert L. Einley, Deputy State Treasurer, to Joseph Weintraub, Esq., then counsel to the Governor, the following was stated:

B. Situation under S-1G~
(1) S—167 if enacted, will make entirely plain that the State has no function with respect to purchasing or construction. Thus Section 20 (6) provides that the Board of Governors shall have authority and responsibility to:
(a) Purchase, all lands, buildings, equipment, materials and supplies, and
(b) Employ architects to plan buildings; secure bids for the construction of buildings and for the equipment thereof; make contracts for the construction of buildings and for equipment; and supervise the construction of buildings.
O. Comments
(1) I do not believe the State should insist on continuing to exercise the construction functions, for which it has no clear authority at present. However, if the State is to have no function in purchases and construction, it is suggested that there be written into the bill a requirement comparable to Chapter 48, P. L. 1954 with respect to competition and public advertising.

In a memorandum dated May 14, 1956 from Joseph Weintraub, Esq. to then Governor Robert B. Meyner, it was stated:

(1) The overall thesis of the bill is essentially this. There will be 2 boards within the existing Corporation: (1) Board of Governors, and (2) Board of Trustees. The Board of Governors will have control over the institution, that is to say, the University. The University as used in the bill is a functional concept embracing the colleges, the courses of ins! ruction, etc. The Board of Trustees retain control over the privately-held assets only, and will make those assets and the income from those assets available to the Board of Governors for the operation of the University. The Board of Trustees will have authority to meet the expenses of their own trusteeship, turning over the net income to the Board of Governors.
The approach of the bill is to vest the greatest right of self-government in the two boards.
Attached hereto are memorandums of other departments with respect to whether general State laws applicable to State government will apply to Rutgers if this bill is enacted. The situation may be summarized as follows: * *
(2) As to fiscal matters, control is presently exercised only with respect to capital improvements on line items, Purchasing handling such matters. Under this bill that element of control will not be present. All purchasing will be left with the Board of Governors. There will be no requirement as to competitive bidding. [Emphasis added]

In view of the contemporaneous statements of one of the co-draftsmen of the 1956 act and the absence of language comparable to that used for the New Jersey Medical School, Eutgers argues that the Board of Governors was intentionally given the unfettered right to secure bids for the construction of buildings without the need to adhere to the public bidding statutes.

Eutgers has indicated that it has no present intention of abandoning public competitive bidding procedures, but it does contend that it is not bound by N. J. 8. A. 52:34—6 et seq.

In answer to these contentions, the State argues that financial support flows from the Legislature to Eutgers in such torrents as to defray a large part of the operating costs of the University as well as a substantial percentage of its capital construction costs; that the State of New Jersey, in short, effectively pays for the operation and expansion of Rutgers University. Where state tax money (legislative appropriations) covers in whole or in part construction expenses ■ of state agencies, as with Rutgers, prima facie the trinity of public bidding statutes (public advertisement, prequaliiications, single and multiple competitive bids) must and should apply, for it is their function to protect the public fisc, to ensure that in letting public construction contracts to be paid for in whole or in part by the taxpayers’ money, these funds will be used prudently and' frugally, and that favoritism will not be shown unqualified contractors. See Hillside Tp., Union County v. Sternin, 25 N. J. 317, 322 (1957).

The State further alleges that control and financial support are the crucial criteria for determining state agency status of an instrumentality of State Government and tested by these standards Rutgers plainly is a state agency and therefore subject to the pertinent provisions of Title 52.

In furtherance of his argument the Attorney General says that truly autonomous state instrumentalities such as the New Jersey Turnpike Authority, N. J. 8. A. 27:23-l et seq, are properly designated thus because their operations and construction are financed not by public tax moneys (legislative appropriations) but rather by revenues from toll exactions and independently issued bonds, N. J. 8. A. 27:23-5.7. Such entities have, in the past, been exempted from compliance with public bidding statutes for the very reason that their source of operating and construction income is not- public tax money. See Kingston Bituminous, etc. v. N. J. Turnpike Authority, 80 N. J. Super. 25, 32 (App. Div. 1963). Yet, even with respect to the Turnpike Authority, the Legislature, recognizing that this body was affected with a public interest, recently imposed public bidding requirements upon it. N. J. S. A. 27:23-6.1. Rutgers, unlike instrumentalities such as the Turnpike Authority, operates and builds largely with public tax moneys, and therefore is.not’“autonomous” within Kingston, supra, and is not reasonably to be relieved from the bidding statutes by any analogy to the Turnpike Authority.

The State rejects Rutgers’ contention that because it does not enjoy the privileges generally granted to other state agencies, it is not the State or an agency thereof.

The Attorney General further argues that it is of no moment, for purposes of determining Rutgers’ freedom from Title 52, that the Rutgers act of 1956 does not expressly incorporate and apply the bidding statutes to the University. First there is nothing to indicate application of the maxim expressio unius, i. e., that all regulations which might touch Rutgers are set out in the act and that those not set out are by implication inapplicable. For example, Rutgers as a spending agency, is subject to the Governor’s powers to withhold appropriations, N. J. S. A. 52:27B-31, notwithstanding no such reference thereto is made in the Rutgers act. Second, expressio unius, as a doctrine of statutory construction, should be used very carefully, cautiously and sparingly. See Crawford, Statutory Construction, § 195, at 337 (1940). Third, in contrast to the above rule of construction, it is an equally well if not more respected rule of statutory interpretation that statutes are to be construed not in isolation but by reference to other laws of the State bearing on the same subject.

The Attorney General further contends that Rutgers’ prima facie subjection to the public competitive bidding and prequalification provisions of Title 52 remains undisturbed, and thus rejects any of the remaining reasons which it has advanced. In support of this position he says that Rutgers’ argument that the fact that privileges generally enjoyed by state agencies, which, it is claimed, are not enjoyed by Rutgers, and thus proves that Rutgers is not the State or a state agency, is misdirected.

Many of the arguments now advanced by both sides must be discarded as they do not fit the admitted facts as they existed in 1956 at the time the Rutgers, the State University Law was being considered by the Legislature, the Governor and their advisors.

Obviously, this was not a hasty considered place of legislation. The State had been wrestling with the higher education problem for many years. A sound and lasting solution was needed and the situation had long been discussed and weighed by the State, the public and Rutgers Trustees.

The record is clear that the very problem now before this court (as well as others) was carefully and thoroughly gone into before the legislation was adopted and the measure signed by the Governor. (See Pinley memo and Weintraub, opinion, above.) It must be kept in mind that this legislation, unlike most, was quite unique and was not only being adopted for the benefit of the State and its citizens but also with the full knowledge that the then Board of Trustees of Rutgers would have to be satisfied therewith; otherwise it would not in all probability be ratified and the intended partnership between the State and the University Trustees would never have come into existence.

That all relied heavily upon the opinion of the Governor’s counsel is obvious. This opinion was not only clear and to the point but correctly interpreted the language of the then pending measure.

Legislative intent can be determined by several methods well known to the law but none could hardly be more positive than the reliance by the Legislature, the Governor and the University to be affected upon the clear and unambiguous language of the act itself, coupled with the recorded opinion of the scrivener and counsel.

So here we have three controlling factors; first, the plain language of the act; second, the lucid opinion relied upon by the State and its partners to be, and third, the intended purpose of the legislation.

I must therefore conclude that Rutgers is not bound by any of the bidding statutes in question.

A judgment will be entered accordingly.


author: HoKisr, J. S. C.

text:
    ATLANTIC CITY HOSPITAL, PLAINTIFF, v. HAROLD FINKLE, DEFENDANT.
    Atlantic County Court Law Division
    Decided May 21, 1970.

      Mr. James Tj. Cooper for plaintiff (Messrs Cooper, Green-berg, Katzman & Todd, attorneys).

      Mr. Harold Tinkle, pro se.

   HoKisr, J. S. C.

This matter is before me on plaintiff’s application for summary judgment on one count of two counts remaining in defendant’s counterclaim. B. 4:46-1 el seq. The motion is predicated upon the absence of a genuine issue of any material fact challenged and that plaintiff is entitled to such judgment as a matter of law. B. 4:46-2.

Specifically, plaintiff asserts that the first count of defendant’s counterclaim is not maintainable by reason of the statute of limitations. This count demands damages of plaintiff on the theory that defendant sustained personal injuries as the result of plaintiff’s breach of warranty.

On February 13, 1968 plaintiff Atlantic City Hospital instituted this action against defendant for $1381.22 for services rendered to defendant while the latter was a patient at the hospital between August 22, and September 23, 1966, and between October 7, and October 17, 1966.

On October 10, 1969 defendant filed his answer and counterclaim out of time by consent. His answer denied liability or indebtedness, but admitted the periods of hospitalization and services rendered. The second count of the counterclaim, asserting a cause of action for personal injuries negligently caused by plaintiff while defendant was a patient, was withdrawn. We are not concerned with the allegations of the third count on this motion.

Plaintiff’s motion rests upon its contention that the cause of action asserted by the first count of the counterclaim is barred by the statute of limitations, N. J. S. A. 2A :14-2:

Every action at law for an injury to the person caused by wrongful act, neglect or default of any person * * * shall be commenced within 2 years next after the cause of any such action shall have accrued.

Defendant resists the motion first on the claim that since the first count arises out of contract, the six-year statute, N. J. 8. A. 2A:14-1, which governs “recovery upon a contractual claim,” applies. This argument is not sustainable because whether the six-year statute or the two-year statute designates the applicable limitation depends on the nature of the injuries, not the theory of recovery. The criterion is whether the action is one for damages based on injury to the person (two-year statute) or damage to property (six-year statute). Rex v. Hutner, 26 N. J. 489 (1958); Rothman v. Silber, 83 N. J. Super. 192 (Law Div. 1964); Tackling v. Chrysler, 77 N. J. Super. 12 (Law Div. 1962); Dailey v. Kiernan, 75 N. J. L. 275 (Sup. Ct. 1907).

Assuming that the two-year statute governs, defendant further urges that the cause of action is not barred because the date of the commencement of plaintiff’s action was within two years of the accrual of the cause of action asserted by the first count of the counterclaim, and the factual contentions of this count arose out of the very same transaction pleaded by plaintiff. The record supports defendant’s factual claim in these respects, although the actual, filing of the counterclaim was more than two years after the accrual of the cause of action exhibited by defendant.

The legal issue thus raised appears to be without precedent in our State.

A counterclaim is a countersuit which is permitted by the court when it can be conveniently tried with the initial action. It may include a setoff or recoupment, or both. Curtis-Warner Corp. v. Thirkettle, 99 N. J. Eq. 806 (Ch. 1926), aff’d 101 N. J. Eq. 279 (E. & A. 1927); D’Orsi v. Galdieri, 126 N. J. L. 574 (Sup. Ct. 1941).

Our present rules provide that a counterclaim may state any claim against the opposing party whether or not it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. R. 4:7-1. And it may claim relief exceeding in amount or different in kind from or not germane to that sought in the pleading of the opposing party. B. 4:7-2.

A setoff is an offsetting claim arising out of a completely independent and unrelated transaction. Falkenstern v. Herman Kussy Co., 137 N. J. L. 200 (E. & A. 1948); Guarantee Co. of No. America v. Tandy & Allen Construction Co., Inc., 66 N. J. Super. 285 (Law Div. 1961).

The doctrine of recoupment was unknown to the common law. It was authorized in this State by virtue of statute. Price’s Executors v. Reynolds, 39 N. J. L. 171 (Sup. Ct. 1877). It consists of the setting off of damages for breach of contract allegedly committed by plaintiff against the damages claimed by plaintiff for breach by defendant of a stipulation arising out of the same transaction. Id.

In the absence of express statute, a demand of defendant, whether pleaded by way of setoff, counterclaim or cross-bill, ordinarily is regarded as an affirmative action and is subject to the operation of the statute of limitations. But the prevailing view also seems to be that, unless otherwise barred by statute, if a counterclaim or setoff is not barred at the commencement of the action in which it is pleaded, it does not become so afterward, during the pendency of that action. 34 Am. Jur., Limitation of Actions, § 65, at 59 (1941).

Recoupment is never barred by the statute of limitations so long as the main action is timely. Although there is authority holding that a defendant seeking recoupment is not entitled to an affirmative judgment for an amount exceeding the plaintiff’s claim, the majority rule holding such recoupment is not barred by the statute of limitations also permits a judgment on the recoupment in excess of the amount sought by plaintiff in his action. Id. § 64; Annotation, “Setoff or counterclaim — barred claim,” 1 A. L. R. 2d 630, 667 (1948).

N. J. S. A. 2A :14-27 states: “The limitations provided by this chapter shall apply to the case of any debt or demand fox liquidated damages alleged by way of set-off.” See Nolin v. Blackville, 31 N. J. L. 170 (Sup. Ct. 1865). This is the only section of the general statutes relating to limitations of actions which expressly touches upon the application thereof to setoffs. In effect, this quoted section, by its restriction to setoffs for liquidated damages, may be construed to indicate that the decision of whether and under what circumstances the statute of limitations operates upon demands asserted by counterclaim for unliquidated damages is left to the courts.

Statutes of limitations are designed to bar stale claims; to require parties to assert their demands within a fixed time, in order to avoid losing witnesses or evidence that the opposing party ordinarily might have had except for the inordinate passage of time from the inception of the cause of action. Trenton v. Fowler-Thorne Co., 57 N. J. Super. 196, (App. Div. 1959). However, where the subject of the defendant’s claim is interwined with the cause of action advanced by the complaint, timely filed, reason and logic dictate that defendant’s claims should not be denied on account of the passage of time.

When the counterclaim involves the same factual complex or transaction upon which plaintiff relies, it should not be considered to be stale because the same facts required to be exhibited by defendant generally will support the affirmative relief sought. Thus, the reason for the application of the statute no longer exists. However, I need not go as far as this would imply. I need only to hold, as I do, that prevailing authority supports the proposition that where the counterclaim asserts a recoupment which is not barred by the appropriate statute of limitations as of the time when the principal action was commenced, it will not be considered as untimely even though it is filed in said action at a time when if it were the subject of an independent action it could not be maintained by reason of the statute of limitations.

Since defendant’s counterclaim in the case at bar was filed in an action commenced by plaintiff within two years of the accrual of defendant’s cause of action, it is timely.

Accordingly, the motion for summary judgment is denied. No costs.