author: Cbane, A. J. S. C.

text:
    MARILYN EXUM, PLAINTIFF, v. WILSON MARROW AND MARILYN MC NAIR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 23, 1970.

      Mr. George B. Rosenthal for plaintiff. (Messrs. Nussman, Kaplan, Rosenthal &. Rubinowitz, attorneys.)

      Mr. Charles J. Kahwaty for defendant Wilson Marrow.
   Cbane, A. J. S. C.

This is an action to recover for personal injuries plaintiff claims to have received while she was a passenger in an automobile operated by defendant Marilyn L. McNair which allegedly collided with an automobile operated by defendant Wilson Marrow.

Since he was not insured, the Unsatisfied Claim and Judgment Eund of the State of New Jersey (hereinafter called the Eund) filed an answer on behalf of Marrow. The Eund now moves for an order declaring that plaintiff is barred from recovering against the Eund because of the existence of an uninsured motorist coverage endorsement in a policy of insurance issued to defendant McNair by Home Indemnity Company. The endorsement provides in part as follows:

UNINSURED MOTORISTS COVERAGE (Damages for Bodily Injury and Property Damage Caused by Uninsured Highway Vehicles)
The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. ****** f *
PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle ; * * 1**4

The Motor Vehicle Security Respousibility Law, N. J. S. A. 39:6-23 et seq., established a system to provide compensation for damages caused by the operation of uninsured motor vehicles. Among other things, the statute created the Fund, N. J. 8. A. 39:6-63, and defined the class of persons (“qualified person”) who may make application for payment from the Fund. N. J. 8. A. 39:6-62.

The kind of coverage provided for in the endorsement issued to defendant McNair is relatively new in New Jersey. Such coverage is permitted to be included in policies of automobile liability insurance by a recent amendment (effective January 2, 1969) of N. J. 8. A. 17:28-1 in the following language:

* * * Any policy of automobile liability insurance may also contain a provision for payment of part or all sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, or because of damage to property, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.

N. J. 8. A. 39:6-70(l) requires an applicant for payment from the Fund to show that he is not acting, on behalf of an insurer. This subsection, however, is directed to situations in which there exists a policy of insurance “whereby the insurer is liable to pay, in whole or in part, the amount of the judgment.” It has no applicability to this case since the policy in question does not undertake to pay a judgment. It undertakes to pay only such sums as have been determined by agreement or by arbitration. Feliciano v. Oglesby, 102 N. J. Super. 378, 388 (Law Div. 1968).

Since the decision in the Feliciano case, N. J. S. A. 39:6-62 was amended (effective January 2, 1969) to exclude from the definition of “qualified person” one who “is an insured under a policy provision providing coverage for damages sustained by the insured as a result of the operation of an uninsured motor vehicle in a form authorized to be included in automobile liabilty policies * * * or issued for delivery in this State, pursuant to the provisions of, or any supplement to, chapter 28 of Title 17 of the Revised Statutes (17:28-1 et seq.) or in a form substantially similar thereto.”

It appears to have been the plain intendment of the amendments of N. J. 8. A. 39 :6 — 62 and N. J. 8. A. 17:28 — 1 to relieve the Eund of some of the financial burdens relating to claims against uninsured motorists. The device chosen was. to permit the issuance of uninsured motorists coverage endorsements of the kind encountered in this case.

Plaintiff argues that there are significant differences in the benefits obtainable from the Pund as compared with those provided for under the uninsured motorists coverage endorsement. Specifically, she complains that because of the fortuitous fact that the owner of the vehicle in which she was riding obtained a policy containing an uninsured motorists coverage endorsement she is deprived of an opportunity to have her damages assessed by a jury as compared to agreement with an insurer or failing that, compulsory arbitration which is the method provided under the endorsement. It is argued that enactment of the amendment to N. J. 8. A. 39 :6-62 has created two classes of persons without a reasonable basis and has thus violated the due process and equal protection clauses of the United States Constitution. TJ. 8. Const., Amend. XIV.

The. issue of constitutionality of a statute is approached with-a view to the well-recognized presumption of validity, WHYY, Inc. v. Glassboro, 50 N. J. 6, 13 (1967), and the principle that a legislative act will not be declared void unless its repugnancy to the Constitution'-'‘is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957). Fundamentally, the constitutional requirement of equal protection is that persons within a class be treated in a like or similar manner. Guill v. Mayor, etc. Hoboken, 21 N. J. 574 (1956). However, neither “abstract symmetry” nor “mathematical nicety” is required. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-82, 31 S. Ct. 337, 55 L. Ed. 369 (1911).

The legislative purpose in establishing the Fund was to provide a measure of relief to persons who sustain losses or injury inflicted by financially irresponsible or unidentified operators of motor vehicles, where such persons would otherwise be remediless. Corrigan v. Gassert, 27 N. J. 227 (1958), Dixon v. Gassert, 26 N. J. 1 (1958). Undoubtedly the Legislature intended to exclude persons who have other remedies available. Licata v. Lutz, 48 N. J. 255 (1966). The legislation under consideration, namely, the amendment to N. J. 8. A. 39 :6-62, has a similar purpose.

Plaintiff understandably does not claim that she is deprived of a right to trial by jury. She may, of course, if she chooses, pursue the uninsured defendant personally in this litigation. Whether a judgment against Marrow would be collectible is difficult to say. The Motor Vehicle Security Eesponsibility Law has never interfered with a plaintiff’s right to proceed to judgment against an uninsured driver. ,Bnt insofar as the Fund is concerned, since plaintiff has a means available (i. e., the endorsement) to recover for her injuries, she is barred from pursuing the Fund. While there may be significant differences in the procedure by which the amounts legally due are determined, it does not follow necessarily that the Legislature has created an unreasonable class. Every classification may produce some degree of inequality; in order, however, to be declared violative of the equal protection clause of the Fourteenth Amendment, the legislation must be actually and palpably unreasonable and arbitrarjr. Jamouneau v. Harner, 16 N. J. 500, 520 (1954). If the classification has a rational rolation to some policy consideration relating to the common welfare, it will satisfy the constitutional test. Guill v. Mayor, etc., Hoboken, supra. The legislation, N. J. S. A. 39 :6-23 et seq„ .as a whole, including the amendment, to N. J. 8. A. 39:6-62, carries out a rational and reasonable legislative scheme. Classifying those who do have available means of recovering for losses and injuries as ineligible to recover from the Eund, and those who do not have such means as eligible, is not an unreasonable classification in the constitutional sense.

Plaintiff thus falls within that class of persons whom the Legislature intended to bar from recovery against the Eund. The motion- will be granted.


source: Caselaw Access Project

author: Mintz, J. A. D.

license: Public Domain

text:
    IN RE: IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST CLUB “D” LANE, INC. t/a CLUB “D” LANE 2005 EAST LINDEN AVENUE LINDEN, NEW JERSEY HOLDER OF PLENARY RETAIL CONSUMPTION LICENSE C-12, ISSUED BY THE MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL AT THE CITY OF LINDEN.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1970
    Decided January 4, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Louis M. Minotti argued the cause for appellant (Mr. Donald W. Rinaldo, attorney).
    Mr. William Bayers, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of blew Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant appeals from an order of the Division of Alcoholic Beverage Control suspending defendant’s plenary retail consumption license for 30 days.

The following specific charge was preferred against defendant :

On January 14 and 15, 1969, you allowed, permitted and suffered lewdness and immoral activity in and upon your licensed premises, viz., in that you allowed, permitted and suffered female persons to perform on your licensed premises for the entertainment of your customers and patrons in a lewd, indecent and immoral manner; in violation of Rule 5 of State Regulation No. 20.

Eule 5 of State Eegulation 20 provides that:

No licensee shall engage in or allow, permit or suffer in or upon the licensed premises any lewdness, immoral activity or foul, filthy, indecent or obscene language or conduct, or any brawl, out of violence, disturbance or unnecessary noise; nor shall any licensee allow, permit or suffer the licensed place of business to be conducted in such a manner as to become a nuisance.

Concededly, on the stated dates entertainment was supplied at defendant’s premises, on January 14 by two go-go dancers and on January 15 by one such dancer, wearing transparent bibs and pasties covering only the nipples on their breasts.

Defendant argues that “lewdness and immoral activity” is to be determined in accordance with the criteria set forth in N. J. S. A. 2A:115-1.1, the statute dealing with obscenity, which incorporates the First Amendment right as defined by the United States Supreme Court. Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), rehearing den. 355 U. S. 852, 78 S. Ct. 8, 2 L. Ed. 2d 60 (1957); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U. S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966).

A license to sell intoxicating liquor is not a contract nor is it a property right. Eather, it is a temporary permit or privilege to pursue an occupation which is otherwise illegal. Since it is a business attended with danger to the community, it may be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. Mazza v. Cavicchia, 15 N. J. 498, 505 (1954).

We are not here concerned with the censorship of a book, nor with the alleged obscenity of a theatrical performance. “Our immediate interest and attention is confined to the disciplinary action taken against the licensee of a public tavern, whose privileges may lawfully be tightly restricted to limit to the utmost the evils of the trade.” McFadden’s Lounge, Inc. v. Div. of Alcoholic Bev. Control, 33 N. J. Super. 61, 68 (App. Div. 1954). Lewdness or immorality for the purpose of alcoholic beverage control may be determinable on a distinctly narrower basis than for purposes of regulation of commercial entertainment generally. Davis v. New Town Tavern, 37 N. J. Super. 376, 378 (App. Div. 1955); Jeanne’s Enterprises, Inc. v. New Jersey, etc., 93 N. J. Super. 230 (App. Div. 1966), aff’d o. b. 48 N. J. 359 (1966).

The public policy of this State strictly limiting the type of permissible entertainment in taverns was recently declared in Paterson Tavern & Grill Owners Ass’n Inc., v. Hawthorne, 108 N. J. Super. 433, 438 (App. Div. 1970), rev’d on other grounds, 57 N. J. 180 (1970), where the court stated:

The ordinance seeks to ban from Hawthorne’s taverns and other licensed premises the “topless” and “bottomless” entertainer or dances. The community has a right to protect itself against this kind of an immoral atmosphere which exists elsewhere in the United States. Such so-called “entertainment” is nothing more or less than an appeal to the prurient interest. It is bait to bring customers to the bar and hold them there, for the obvious purpose of increasing the sale of alcoholic beverages. It may be validly curbed, as Hawthorne provides in its ordinance.

Finally, defendant contends it received an advisory opinion from a Deputy Director of the Division to the effect that the apparel would not be violative of State law. This was denied. The hearer for the Director in the present case correctly noted that at best this argument might be urged to indicate that defendant’s conduct was not willful and that there were mitigating circumstances to be considered. He pointedly stated that all licensees are charged with knowledge of the admonition of former Director Joseph P. Lordi expressed in an earlier proceeding against a licensee charged with employing “topless” female employees, set forth in Bulletin 1778, Item 5, reprinted in Bulletin 1805 Item 1, as follows:

In passing, however, I wish emphatically to advise all licensees, that so called “topless” female employees, whether entertainers or otherwise, and whether with pasties described by the Division agents or the larger ones described by the licensee’s witnesses, will not be tolerated on licensed premises in this State.

The Director’s action was a reasonable exercise of the supervisory power entrusted to him by the Legislature, and we perceive no basis to disturb his determination.

Affirmed.


author: Cakton, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES S. WILSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1970
    Decided January 8, 1971.

      Before Judges Coiwobd, Kolovsky and Cakton.

      Mrs. Rosemary E. Reavey, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph A. Fusco, Assistant Prosecutor, of counsel and on the brief; Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Cakton, J. A. D.

Defendant was indicted, tried by a jury and convicted on indictments charging attempted entry with intent to steal (N. J. S. A. 2A:94r-l, N. J. 8. A. 2A:85-5) and possession of burglary tools (N. J. 8. A. 2A:94-3). He now appeals. His principal arguments for reversal are that the court erred in refusing to charge that mere preparation was insufficient to establish proof of intent and in imposing an invalid sentence for the attempt offense. He received a five to seven year sentence on the attempt charge and a consecutive sentence of two to three years for the possession offense.

The State’s proofs were that at about midnight a police officer drove his patrol car into the dark and deserted parking lot of a supermarket. Hearing a “metallic sound,” he drove to the loading platform in the rear of the closed store. Shining his flashlight through the gloom, he came upon defendant crouched down behind a stack of milk cases. These were near a sliding door leading into the rear of the store. A bolt projected through the closed door to the lock inside. On it the officer found pry marks. A red pry bar and a hacksaw lay on the platform just in front of the door. A knife was retrieved from behind the milk cases where defendant had been lurking. On his person were found a small flashlight, a screwdriver and a single glove. Samples of paint scrapings taken from the door bolt and the prj' bar wore found to be the same rod paint.

Defendant offered no evidence.

The evidence abundantly establishes that defendant had committed overt acts which went far beyond mere preparation. Oonsequently, the court properly refused to give the requested charge on that issue.

There is merit, however, to the contention that the live to seven year sentence for the attempt exceeds permissible statutory limits. The Legislature has declared an attempt to be a misdemeanor.

An attempt to commit an indictable offense is a misdemeanor, but the punishment shall not exceed that provided for the crime or offense attempted. 2f. J. S. A. 2A :85-5.

Unless specifically provided otherwise, misdemeanors are punishable by a maximum of three years imprisonment, a fine of $1,000, or both. N. J. 8. A. 2A :85-7. It necessarily follows that since the Legislature has classified attempts to commit indictable offenses as misdemeanors, and since there is no specific punishment prescribed for attempted entry with intent to steal, the maximum term of imprisonment which may be imposed for such an attempt is three years.

The provision of the attempt statute that “the punishment shall not exceed that provided for the crime or offense attempted” merely sets the outer limits of punishment for attempts to commit indictable offenses where the statutory penalty for the completed crime is less than three years. The words of this provision are words of limitation. They cannot be interpreted as affirmative authorization to impose the same maximum sentence for a mere attempt as for the substantive crime attempted.

We find no merit in the other points raised by defendant.

The convictions are affirmed. The sentence on the attempt charge is set aside and the matter remanded to the trial court for resentence on that offense.


author: Ekitz, J. S. C.

text:
    NEW JERSEY MAUNFACTURERS INSURANCE COMPANY, PLAINTIFF, v. KEYSTONE INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 6, 1971.

      Mr. Bernard A. Campbell, Jr. for plaintiff (Messrs. McLaughlin, Dawes <& Abbotts, attorneys).

      Mr. Richard I. Wood, for defendant (Messrs. Lewis, Siegel & Wood, attorneys).
   Ekitz, J. S. C.

This is a declaratory judgment action designed to determine which of two automobile liability insurance carriers is responsible for the defense of claims asserted consequent upon an accident. The relatively simple facts were not susceptible of contradiction and so were stipulated. The legal issues were simplified by the concession of the parties that one or the other insurance company would defend the claims under a then extant policy, depending upon the resolution of the legal issue remaining.

The automobile involved was purchased from the manufacturer by Kelsey H. Edwards (hereafter Kelsey), father of K. Robert Edwards (hereafter Robert). Kelsey was insured with respect to this automobile by defendant Keystone Insurance Company. On Friday, January 9, 1970, Kelsey, while the registered owner, drove to his son’s residence, which was separate and apart from Kelsey’s, for the purpose of selling the automobile to his son. On that date he gave his son possession of the vehicle, delivering both the keys and a fully executed assignment of certificate of ownership, the latter appearing on the reverse of the original certificate of ownership. Robert paid his father in full for the ear and delivered a check to him for $300.

The following day, Saturday, January 10, 1970, several attempts were made (apparently by father and son together, although this does not appear in the stipulated facts, and is probably not significant) to locate a motor vehicle agency, presumably to effect the change of title on the records of the Division of Motor Vehicles. None was found that was open. Kelsey returned home.

On Sunday, January 11, 1970, Robert was involved in an accident while driving the automobile in question. It is this accident from which the claims and this litigation have arisen.

The next business day, Monday, January 12, 1970, Kelsey deposited the chock he had received in his bank in the municipality where he resided. On Friday, January 16, 1970, Robert recorded the assignment of certificate of ownership he had received with the Motor Vehicle Division, and received his own certificate of ownership.

The sole issue here to be determined is the ownership of the automobile at the time of the accident. The question may be framed in terms of title. If, under the applicable New Jersey law, title passed to Robert with the delivery and execution of the assignment on Friday, January 9, 1970, then there must be a judgment for defendant. If, on the other hand, as plaintiff argues, title was not perfected, and consequently did not pass until submission to the Director of the Division of Motor Vehicles of evidence of the purchase, then plaintiff must have judgment.

Regulation of ownership and operation of motor vehicles in this State is statutory as an expression of the State’s proper interest in regulating the use of its highways in the common welfare. State v. Kabayama, 98 N. J. Super. 85, 88 (App. Div. 1967), aff’d o. b. 52 N. J. 507 (1968). Accordingly, we must endeavor to divine from statutory expression the intent of the Legislature in this regard. In re Public Service Coordinated Transport v. Super Service Bus Co., 82 N. J. Super. 371 (App. Div. 1964), certif. den. 42 N. J. 143 (1964).

We consider first defendant’s argument that title passed under the provisions of the Uniform Commercial Code, N. J. S. A. 12A:1-101 et seq. The Code expressly provides that

Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place * * *. [JP. J. S. A. 12A:2-401(2)]
Unless otherwise explicitly agreed where delivery is to be made without moving the goods, if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents * * *. IN. J. S. A. 12A:2-401(3) (a)]

Were these the only statutes with which we need be concerned, it is clear that title did pass on Eriday, January 9, 1970, when Kelsey in fact delivered both physical possession and a document of title to Robert.

In response to this, plaintiff argues that N. J. S. A. 12A:10-104 and N. J. S. A. 12A:9-203 save from repeal the Motor Vehicle Certificate of Ownership Law (N. J. S. A. 39:10-1 through 25), whereby it is to that latter law we must look to answer questions of title. Our attention is directed to the confirmatory preamble of certain amendments to Chapter 10 of Title 39.

It is to be observed that this reservation from repeal in the Uniform Commercial Code refers specifically to an implementing section found in the chapter of the Code dealing with secured transactions (N. J. S. A. 12A:9-203), and that the implementing section makes particular reference to transactions subject to that chapter. Accordingly, it might be said that the intent of the Legislature, by its nonrepealer, was only to reserve and effectuate the Motor Vehicle Certificate of Ownership Law insofar as the motor vehicle statutes intended to preserve security interests, and that it was not the Legislature’s intention to deal with title problems generally. We believe that this interesting question need not be here determined. If the Uniform Commercial Code is applicable, its plain language suggests that title passed on Friday, January 9, 1970. For reasons which will appear, it is our view that the same result is achieved upon resort to the Motor Vehicle Act.

And so the real question appears: Does the Motor Vehicle Act require the filing of the assignment of certificate of ownership, pursuant to N. J. S. A. 39 :10-11, before there is a transfer of title in a transaction such as this where the seller has, in good faith, complied fully with his- obligations under that act? We think not.

Nothing in the statute indicates that the1 seller has an obligation to implement his fully executed intent to pass title by accompanying the purchaser to the Division of Motor Vehicles in order to insure himself of proper notification. The express burden of notification is imposed upon the purchaser. N. J. S. A. 39:10-11. Contrast this with N. J. 8. A. 39:10 — 9 and 10, which specifically require certain performances of the seller, including the execution and delivery of the assignment. We are thus persuaded of the legislative intent by the plain words of the statute. Where the intent of the Legislature is apparent from the language used, a court cannot arbitrarily expand the scope of any statute beyond its plainly expressed legislative intent. Pacific Discount Co. v. Powell, 70 N. J. Super. 156 (App. Div. 1961).

In addition, it is apparent from a reading of N. J. 8. A. 39:10 — 11 that the Legislature considered the prospect of the effect on the seller of a purchaser’s noncompliance, and protected at least the secured seller from the purchaser’s nonfeasance in this regard. Subsection (I) preserves any security interest against such failure on the part of the purchaser “as between the parties to such instrument.” It is hardly likely that the Legislature intended to penalize a seller whose purchaser failed to comply with the statute, unless the seller retained a security interest.

It should be noted as well that even with respect to the errant purchaser, the penalties which are imposed are less than likely to strike terror in the heart of even a milquetoast. He is liable to a penalty of $5, and the statute itself directs that such failure shall not constitute a misdemeanor within the purport of N. J. 8. A. 39 .T0-24. The intent to impose a considerably more severe penalty upon a seller who has done everything he is supposed to do, in circumstances such as those here present, is inconceivable.

Nor do we think that Eggerding v. Bicknell, 20 N. J. 106 (1955), or Velkers v. Glens Falls Ins. Co., 93 N. J. Super. 501 (Ch. Div. 1967), aff'd o. b. 98 N. J. Super. 166 (App. Div. 1967), certif. den. 51 N. J. 388 (1968), urged by plaintiff, is to the contrary.

Each of these cases is clearly distinguishable on its facts. In Eggerding there never was any proper assignment, fully executed, by the seller. In Velhers there was no delivery, the certificate not having been properly assigned and, therefore, rejected. It is notable as well that Eggerding was d&cided well within the framework of an invocation of estoppel. It was in this context that the court there voiced the requirement of strict compliance with statutory directions and opined that “the incomplete assignment did not legally serve to transfer title * * *.” 20 N. J. at 112 (emphasis added).

We are of the opinion that, with respect to the rights of the seller or his insurance company, the strict compliance rule mandated by Eggerding is fulfilled when the seller does everything which the statute requires him to do. See Ethridge v. Allied Equipment & Supply Co., 26 N. J. Super. 586 (App. Div. 1953).

Unlike Eggerding and Yelkers, in the instant action there is no suggestion of fraud, chicane, overreaching, statutory violation on the part of the seller, or an effort to avoid the ordinarily expected results of a transaction. Kelsey sold to Robert in a straightforward business deal, performed according to statute, and his insurance company is entitled to a declaration that title passed with this sale on Friday, January 9, 1970.

An accordant judgment for defendant may be submitted.

       it is proper to note in passing that no security interest was involved in tlie present transaction: Robert pa-id the full consideration and received an assignment of certificate of ownership upon which no security agreement or lien was imposed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BARTON FRANK AND KAREN JUNE SHAPIRO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 21, 1970
    Decided January 12, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. George T. Dougherty, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Michael N. Kouvatas argued the cause for respondent Barton Frank.

      Mr. Mario A. Iavicoli argued the cause for respondent Karen Shapiro (Messrs. Maressa & Console, attorneys).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

The State, pursuant to leave granted, appeals from an order entered on defendant’s pretrial motion suppressing evidence consisting of a package of marijuana confiscated by the police. The order was bottomed on a finding by the trial court that the police action was “a grossly improper search and seizure.”

We conclude that the evidence in question was not the product of an illegal search by the police. The defendant Karen Shapiro had delivered a package at the home of defendant Frank to a 16-year-old girl who was babysitting for the Franks. She left instructions to deliver the package to Mr. Frank and have him call “Karen” as soon as he came home since it was very important. The babysitter, apparently out of curiosity, opened the package and ascertained that it contained marijuana which she recognized from her high school health education classes. She immediately telephoned her “girl friend” and told her about the package. The girl friend in turn told her mother who notified the police. Two officers were dispatched to the Prank home where they were admitted by the babysitter who delivered the package to them.

The foregoing did not constitute a search by the police. We are not concerned with whether or not the babysitter acted within the scope of her authority. The security provided by the Fourth Amendment against unreasonable searches and seizures extends only to governmental action. Evidence of criminal activity discovered by a civilian, • not acting as a government agent or in concert with government agents, may be reported or surrendered to the police without violating Fourth Amendment rights regardless of the means by which the civilian discovered the evidence. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921); United States v. Goldberg, 330 F. 2d 30 (3d Cir. 1964); cf. State v. Scrotsky, 39 N. J. 410, 416 (1963).

The order suppressing evidence is reversed.


author: Meanok, J. C. C.

text:
    RYAN SCHWARTZ, LINDA SCHWARTZ, RANDY SCHWARTZ, ROGER SCHWARTZ, JR., INFANTS BY THEIR GUARDIAN AD LITEM, ROGER SCHWARTZ, CATHERINE SCHWARTZ, AND ROGER SCHWARTZ, INDIVIDUALLY, PLAINTIFFS, v. U. S. RUBBER CORP., A CORPORATION; U. S. ROYAL TIRE; GENERAL MOTORS CORP., A CORPORATION; A. C. CHEVROLET DISTRIBUTORS; CATHERINE SCHWARTZ AND ROGER SCHWARTZ (AS TO CLAIMS ARISING OUT OF INFANT’S INJURIES ONLY), DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 7, 1971

      Mr. John G. Butler and Mr. Emil J. Yampaglia, attorneys for plaintiffs Catherine Schwartz and Roger Schwartz.

      Mr. Bichará, L. ZucJcer for defendant Uniroyal, Inc. (Messrs. Pitney, Hardin <& Kipp, attorneys).

      Mr. Brian G. Harris for defendant General Motors (Messrs. Braff, Litvah <& EHag, attorneys).

      Mr. John B. LaVecchia for defendant A. C. Chevrolet (Messrs. Hughes, McElroy, Connell, Foley A Geiser, attorneys).

      Mr. Bernard Chazen for plaintiffs Ryan Schwartz, Linda Schwartz, Randy Schwartz and Roger Schwartz, Jr. (Messrs. Canter & Chazen, attorneys).

      Mr. Edward C. Hillis for defendants Catherine Schwartz and Roger Schwartz (Mr. Henry O. Habiclc, attorney).
   Meanok, J. C. C.

(temporarily assigned). This case presents questions ancillary to France v. A. P. A. Transport Corp., 56 N. J. 500 (1970) which, for automobile cases, overruled parent-child tort immunity.

On April 1, 1967 the Schwartz family was traveling through Iowa in a 1966 Chevrolet purchased by plaintiff Roger Schwartz from defendant A. C. Chevrolet Distributors and registered in his name. His wife Catherine was driving, and Roger and their four children were passengers. The vehicle had been manufactured by defendant General Motors and was equipped with tires made by defendant Uniroyal, Inc. Assertedly because a defectively manufactured tire blew, the car went off the road, injuring all occupants. Prior to the decision in France the four injured Schwartz children and their parents brought suit against A. C. Chevrolet Distributors, General Motors and Uniroyal seeking damages arising out of their personal injuries.

Following France the pleadings were amended. The original product liability claims were continued. In addition, Roger Schwartz, as guardian ad litem for his children, sues himself and his wife for damages arising out of their personal injuries. Although the second amended complaint is somewhat ambiguous on this score, it can be construed as stating a claim per quod by Roger against Catherine for damages arising out of the children’s injuries. Because of the bar of our two-year statute of limitations, N. J. 8. A. 2A:14-2, no claims have been asserted by either parent against the other seeking to recover damages on account o£ their personal injuries.

Broadly stated claims for contribution have been filed by all defendants except the Schwartzes. The product liability defendants assert that Catherine Schwartz was negligent in her operation of the vehicle and that Roger was negligent in his maintenance of it. The children’s claims against their parents are based upon the same allegations.

Insurance counsel for the Schwartzes have now moved to strike the second amended complaint as to them on the theory that France is prospective only and thus is not applicable to claims arising before the date upon which that decision was announced.

Two recent Law Division eases have approached the problem. Darrow v. Hanover Tp., 112 N. J. Super. 396 (Law Div. November 25, 1970), held that Immer v. Risko, 56 N. J. 482 (1970), which, for automobile cases, overruled interspousal tort immunity, was retrospective in application. Franco v. Davis, 112 N. J. Super. 496 (Law Div. December 9, 1970), in a considered dictum indicated that France should be prospective only.

Retroactive application of France would permit assertion of child tort claims against parents in cases where the child has not reached his twenty-third birthday. This is because our two-year personal injury statute of limitations, N. J. S. A. 2A:14r-2, is suspended during infancy and does not begin to run until that incapacity is removed by reaching majority. N. J. S. A. 2A:14^21. Obviously the resurrection of such stale claims presents problems of enormous practical difficulty.

No one doubts that the prevalence of automobile liability insurance has been the major impetus to this change in the law. Immer, supra, 56 N. J. at 489. Yet the decision is not restricted in application to cases where insurance is present and to the liability limit available. One of the first considerations of any litigant defending a liability case is to notify his insurance carrier so that its contractual obligation to defend may be honored. One difficulty that immediately arises is that with regard to old claims the identity of the carrier at the time of. accident may be unknown and unknowable. If the identity of the company is discovered, it may well question its obligation to defend and pay on late notice grounds. See Cooper v. Government Employees Ins. Co., 51 N. J. 86 (1968).

Much has been said about the ability of the judicial system to discern the fraudulent claim in answer to the fear of collusion that was cited as a reason for the preservation of family tort immunities. With stale claims this ability is impaired. Only those interested in acquiring insurance funds may be left to participate. The defendant parent may be disinterested in defeating the claim of his offspring or, worse yet, his estate, may be the defendant. With the passage of time independent witnesses become increasingly difficult to find, and when found their aid is apt to be minimal because of impaired memory. Police reports may have been destroyed, investigating officers and treating doctors dead or retired, hospital and other medical records unavailable. The staleness of these claims is in itself a reason that France should be prospective only.

Undoubtedly, automobile liability insurance is more prevalent today and with higher limits than it was in the past. Coverage for old claims arising out of a child’s injury would be that which was in existence at the time of the accident. Also, there would be those with adequate coverage at the time who, because of insurance failures, no longer have recourse to a financially stable institution for payment of their legal liabilities. As mentioned in Franco v. Davis, supra, there undoubtedly has been reliance by litigants and their insurers on the immunity doctrine. While the ill effects of this reliance may to a great extent be rectified when only two-year old claims have been created, the same cannot be said for cases arising out of accidents that occurred up to 23 years ago.

The enormous recent increases in the cost of automobile liability insurance are matters of common knowledge. Present and future premiums would have to. be adjusted to meet these unanticipated claims. There is little fairness in forcing the premium-paying public of the 1970’s to pay the higher cost of meeting claims that arose in the late 1940s, 1950s and 1960s. The Immer and France results could not have been accurately anticipated, for the same court that decided them adhered to interspousal immunity since Koplik v. C. P. Trucking Corp., 27 N. J. 1 (1958); Orr v. Orr, 36 N. J. 236 (1961), and to parent-child immunity since Hastings v. Hastings, 33 N. J. 247 (1960); Heyman v. Gordon, 40 N. J. 52 (1963); Franco v. Davis, 51 N. J. 237 (1968).

As France and Immer, supra, show, they resulted when one member of the court changed his view on one of the most fundamental matters of judicial policy.

While the above criteria are applicable to both inter-spousal and parent-child suits, the adverse impact obviously is greater in the parent-child cases. This difference in degree may merit a difference in result permitting retrospective application of the husband-wife immunity overrule but leaving the parent-child immunity abrogation to prospective only application.

Parent-child tort suits raise different questions peculiar to them alone. With the possible exception of the rare incompetent spouse, married persons are able to make their own informed judgment on whether or not to bring an interspousal tort action. Where the parents or one of them do not advance an infant’s litigation interest, should this be done over their objection? When a case comes before the court evincing an infant’s claim against a potentially liable parent, may the court acquiesce in the parent’s desire to suppress the claim or should the court appoint a guardian and direct that the suit be brought? A parent may not desire to be sued by his child because of inadequate insurance or none at all, or for other reasons that may not now be foretold. It would seem that courts would have to exercise their power to see to it that valid infant claims are advanced promptly rather than to remit them to a choice upon reaching majority with the difficulty of staleness then encountered. And where nonparent tortfeasors may also be involved, there is the danger of inconsistent results bjr litigation of the nonparent’s liability promptly and then awaiting the passage of years for decision on the claim against the parents. The possible duties of members of the Bar might also be mentioned. It may well be that an attorney who has knowledge of a potential claim by an infant client against a parent, but who cannot obtain the consent of either parent to bring an action, has a duty to bring the matter to the attention of the court for the possible appointment of an independent guardian to press the child’s interest. These problems are difficult enough when applied to ripe claims. They increase by something akin to geometric proportion when applied to stale ones. If France is retrospective, do attorneys have a duty to search their files and memories for past matters that may involve a now-available claim by a child against his parent?

There can be no doubt of the power of a court to announce that a new rule of law should be prospective only. Willis, v. Dept. of Cons. & Ec. Dev., 55 N. J. 534, 541 (1970); Annotation, “Prospective or retroactive operation of overruling decision, 10 A. L. R. 3d 1371 (1966). Whether France should be prospective only or retrospective is a question not addressed in that opinion. While the issue can be put to rest only by the Supreme Court, since the question is open there is no reason why this court initially should not give the matter plenary consideration.

Courts have taken different views on whether the overruling of parent-child tort immunity should be prospective only. For prospectivity, see Goller v. White, 20 Wis. 2d 402, 122 N. W. 2d 193 (Sup. Ct. 1963); Balts v. Balts, 273 Minn. 419, 142 N. W. 2d 66 (Sup. Ct. 1966) (suit by parent against child); Silesky v. Kelman, 281 Minn. 431, 161 N. W. 2d 631 (Sup. Ct. 1968) (suit by child against parent); Vickers v. Vickers, 109 N. H. 69, 242 A. 2d 57 (Sup. Ct. 1968). Contra, see Gelbman v. Gelbman, 23 N. Y. 2d 434, 245 N. E. 2d 192, 297 N. Y. S. 2d 529 (Ct. App. 1969).

The only issue presented here is whether France should be prospective only, i. e., whether the new rights created by that case are applicable only to litigation arising out of accidents that occurred on and after July 10, 1970. Darrow v. Hanover Tp., supra, which dealt with prospective-retrospective issues as to Immer and the overruling of interspousal immunity, is not questioned. As pointed out above, there may be valid reasons for applying a prospective-only rule to child versus parent tort cases and not to husband-wife litigation (or perhaps to parent versus child suits since the parent’s claims would be covered by N. J. 8. A. 2A:14-2.)

This court believes that the sound approach is to apply France as prospective only, in accord with the view expressed by the courts of Wisconsin, Minnesota and New Hampshire in Goller v. White, Balts v. Balts, Silesky v. Kelman, Vickers v. Vickers, all supra.

Thus, the motion to dismiss the claims by the Schwartz children against their parents is granted. An order to this effect .should be submitted by the attorney for Roger and Catherine Schwartz as defendants within ten days.

This decision that France is prospective only renders moot other serious issues potentially involved here. They might be mentioned since they may well arise again:

1. May the plaintiff Roger Schwartz, as guardian for his children, maintain a tort action in their behalf against himself or should an independent guardian be appointed?

2. May the present attorney for Roger and Catherine Schwartz, who once also represented the children, remain in the ease now that the children are plaintiffs against their parents, or does the potential conflict of interest preclude his further participation as attorney?

3. May the same insurance counsel represent both Roger and Catherine Schwartz in defense of the children’s suits and the claims for contribution in light of the independent acts of negligence alleged against each ?


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL RONNIE MILLER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 17, 1970
    Decided January 7, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Mark E. Feinman, designated counsel, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Edward B. Basen, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Eeuper, Monmouth County Prosecutor, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Defendant was tried before a jury

and found guilty of (1) possession of stolen property, contrary to the provisions of N. J. S. A. 2A:139-1, and (3) uttering forged checks, contrary to the provisions of N. J. S. A. 2A:109-1. He was sentenced to the New Jersey Reformatory for Males on each of these counts for an indeterminate term, to run concurrently and with credit for time spent in custody.

Defendant’s motion to set aside the verdict as being against the weight of the evidence, to enter a judgment of not guilty in his favor as to these counts, and to allow him to enter a plea to a disorderly persons’ offense of being unable to give a good account of himself, was denied.

Defendant appeals from the judgment of conviction. He advances seven points in his argument for a reversal. We consider them in the order submitted. Before doing so, however, we deem it advisable to make a brief recital of some pertinent facts.

On July 15, 1969 the office of Builders Block & Supply Co., Inc., in Ereehold, was broken into and entered. There were taken therefrom 11 blank payroll checks of that corporation, two block hammers and an adding machine.

The nest morning a car driven by Ulysses Murphy pulled up to the drive-in window at the Monmouth County National Bank. Defendant was identified as a passenger in the car driven by Murphy. The teller testified that defendant passed one check to the driver who, in turn, handed that check and another check, both falsely filled out for $110 each as payroll checks, to the teller to be cashed. When the men were asked for identification, they stated that they would return with some and drove away, leaving the cheeks with the teller. These two checks were among those originally blank cheeks taken from the office broken into.

The police were immediately notified. The stolen adding machine and two hammers were then found by the police in Murphy’s car. Murphy was present at the time of the search, but defendant was not.

Defendant was arrested on July 18, 1969 and incarcerated until October 9, 1969, when he was indicted. On September 5, 1969 he gave a statement to the police. He admitted that he suggested breaking into the office of Builders Block & Supply Co., Inc. There was some question as to the facts surrounding the statement and whether defendant was aware of his rights. However, the trial court specifically found that a statement of his rights had been read to defendant; he understood them; the police were unaware that an attorney had been appointed, and the statement was given voluntarily.

I

[The court held that the trial judge properly denied defendant’s motion for severance of the fourth count (uttering forged checks) from the other three counts of the indictment respectively charging (1) breaking and entering with intent to steal, (2) grand larceny (the jury found defendant not guilty as to these counts), and (3) possession of stolen property. The joinder was premissible under R. 3:7—6.]

II

[Held, that the trial judge did not commit reversible error in denying defendant the right to cross-examine Patrolman Parrish about a “deal” was made between Murphy and the State. It was improper to impeach Murphy’s testimony before he took the stand, moreover, the entire matter was gone into when Murphy was examined as to the arrangement.]

III

Defendant next argues that the court erred in denying his motion for an acquittal on the third count because the State failed to present a prima facie case of receiving stolen goods within the statutory definition, N. J. S. A. 2A:139-1.

We can agree that there was no evidence connecting defendant with possession of the stolen adding machine and hammers. But there was evidence that defendant was in possession of one or more of the stolen checks. However, defendant argues that stolen blank checks do not constitute (1) goods, (2) chattels, (3) dioses in action, or (4) other thing of value, referred to in N. J. S. A. 2A:139-1.

The checks were blank as of the time of their theft. As such, they were not “goods or chattels.” State v. Calvin, 22 N. J. L. 207 (Sup. Ct. 1849). A blank cheek is not a “chose in action,” the latter meaning a right to recover something by means of a suit at law. Black’s Law Dictionary (4th ed. 1951).

However, the stolen blank checks may be regarded as “other things of value,” within the comprehension of N. J. S. A. 2A:139-1. The chocks were payroll checks of this corporation, with its name, address and numbers printed thereon. They were of some value to this corporation, at least a nominal value. The check presumably entailed a printing charge and bore the corporation’s account number. Where an item is stolen and there is no proof of its value, it will be deemed to have nominal value. See State v. Hauptmann, 115 N. J. L. 412, 424 (E. & A. 1935).

Accordingly, the motions to dismiss the third count were properly denied.

IV, V, VI and VII

[The trial judge did not commit reversible error in allowing into evidence a portion of a statement made by defendant to the police while he was in custody, in the absence of counsel, defendant having been informed of his rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); in denying him the opportunity on redirect examination to explain the circumstances of a prior conviction of crime; in denying his motion for acquittal on the third count (unlawful possession of stolen property), or in refusing to charge on the “accomplice rule.”]

Affirmed.


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

text:
    STEPHEN DANIS, PLAINTIFF-APPELLANT, v. MIDDLESEX COUNTY BOARD OF TAXATION AND E. S. YAHNEL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 4, 1971
    Decided January 12, 1971.

      Before Judges Goldmaeost, Leoistahd and Motjzsttaik.

      Mr. Irving Verosloff argued the cause for appellant.

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for respondent {Mr. Qeorge F. Kugler, Jr., Attorney General, attorney; Mr. Stephen SMllman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiff appeals from a Law Division order denying his motion for an order compelling defendant Middlesex County Board of Taxation (Board) to conduct a hearing on his tax appeal and voiding the Board's certificate of judgment denying the appeal for lack of jurisdiction.

On August 15, 1969, the last day for doing so, plaintiff attempted to file a tax appeal petition with the Board challenging land valuation only. The clerk of the Board, defendant Yahnel, relying upon Board Rule 8(a) which states that “each petition must be completed in its entirety,” refused to accept the petition because the form was not fully completed.

Plaintiff then filed a complaint in lieu of prerogative writs in the Law Division for an order directing the Board to accept and file the petition and thereafter conduct a hearing. Both sides moved for summary judgment. Judge Gerofsky on October 17, 1969 determined that the duty of the Board clerk to accept nonconforming papers was analogous to that of a court clerk under R. 1:5-6 (c); the clerk should have accepted the petition and the Board itself could then determine whether the petition complied with its rules. Accordingly, an order was entered on November 3, 1969 directing the clerk to accept the petition for filing, the Board then “to conduct a hearing on the matters set forth” therein. However, plaintiff did not file his petition with the Board until November 25, 1969, more than three weeks later. The Board dismissed the petition on December 22, 1970 for lack of jurisdiction, in accordance with N. J. S. A. 54:3—26.

On February 6, 1970 plaintiff moved for an order directing defendants to hold a hearing in compliance with plaintiff’s understanding of the November 3, 1969 order, and to void the Board’s December 22, 1969 certificate of judgment. After a hearing Judge Gerofsky denied the motion. In his opinion, his November 3, 1969 order had not been violated; in issuing that order he had been concerned with a ministerial official taking upon herself the exercise of a discretionary power rightfully belonging only to the Board, and it was for this reason that she was ordered to accept plaintiff’s appeal petition so that the Board might determine its validity. The petition having been accepted, the Board correctly determined that it lacked jurisdiction under the statute defining its powers. Judge Gerofsky said:

It appears, therefore, that the Board had the unmistakable right, moreover the duty, to dismiss the appeal. The order of this Court did not and could not, alter its [the Board’s] statutory jurisdiction. Any such order would necessarily be subject to its jurisdictional requirements.

The judge concluded that after plaintiff’s petition was dismissed by the Board, his remedy was by way of appeal to the Division of Tax Appeals under N. J. S. A. 54:2-35.

Plaintiff contends that the Board could not dismiss his appeal petition without a hearing, where such hearing had been ordered by the Law Division.

Plaintiff had actual notice at the close of the hearing on October II, 1969 that his tax appeal petition was to be filed with and accepted by the Board, despite the fact that a formal order was not entered until November 3, 1969. Even were one to assume that he did not get notice until November 3, he delayed filing for more than three weeks, until November 25. This was ten days after the statutory deadline for appellate decisions by a county tax board. N. J. S. A. 54:3-26 directs that a county tax board shall hear and determine all appeals within throe months after the last day for filing such appeals. Under N. J. S. A. 54:3-21, the last day for filing a tax appeal with the county tax board is August 15. Accordingly, the county tax board must render its decision by November 15. Judge Gerofsky correctly held that a board judgment rendered more than three months after the final statutory date for taking appeals is beyond the jurisdiction of the board and void. Toone v. Camden, 19 N. J. Misc. 600, 22 A. 2d 351 (St. Tax App. 1941).

Plaintiff had at least 12 days from the entry of the formal order on November 3 to file his petition. Had he done so the burden would then have been upon the Board to render its decision on or before November 15. This became an impossibility because he delayed filing until November 25.

Plaintiff’s argument must be that the statutory cutoff date is only directory, not mandatory, and the decision in Toone is no longer viable. The argument is without merit. The State Division of Tax Appeals has many times reaffirmed the mandatory nature of these dates. George A. Fuller Co. v. Jersey City, 21 N. J. Misc. 38, 40-41, 29 A. 2d 720 (1943); Poll v. Plainfield, 25 N. J. Misc. 325, 53 A. 2d 366 (1947); North Arlington v. Riverview Gardens, 26 N. J. Misc. 72, 56 A. 2d 886 (1948). The former Supreme Court also ruled that the statute is mandatory. Duke Power Co. v. State Bd. of Tax Appeals, 129 N. J. L. 449, 454 (Sup. Ct. 1943), aff’d 131 N. J. L. 275 (E. & A. 1943). See also, Rice v. Newark, 136 N. J. Eq. 53, 54 (Ch. 1944). On a related point dealing with an appeal of an assessment to the Division of Tax Appeals our present Supreme Court said that “The right of appeal * * * is purely statutory and all applicable statutory requirements must be complied with to sustain such appeal.” Newark v. Fischer, 3 N. J. 488, 493 (1950). See also Hackensack Water Co. v. Division of Tax Appeals, 2 N. J. 157, 164 (1949). To the effect that in seeking review of an assessment all statutory criteria must be followed, see Hackensack v. Rubinstein, 37 N. J. 39, 44-45 (1962). Without timely filing of review petitions a county tax board or the State Division of Tax Appeals is without jurisdiction to grant the review sought. Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 25 (App. Div. 1970), aff’d 57 N. J. 199 (1970).

In light of our determination, there is no need to consider whether plaintiff should have taken an appeal from the Board’s action to the State Division of Tax Appeals pursuant to N. J. S. A. 54:2-35 and 39.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFP-RESPONDENT, v. WILLIAM A. SCHULTHEIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided January 13, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Angelo P. Moné argued the cause for appellant.

      Mr. Leonard N. Arnold, Assistant Prosecutor, argued the cause for respondent (Mr. Michael B. Imbriani, Somerset County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant William Scbultheis appeals from convictions of unlawful possession of a weapon (N. J. S. A. 2A:151-41), threatening to take the life of another (N. J. S. A. 2A:113-8) and bookmaking (N. J. S. A. 2A:112-3). He was jointly tried to a jury with one Louis Turi who was also convicted of threatening to take life, bookmaking and in addition, with breaking and entering with intent to assault (N. J. S. A. 2A:94-1).

Edward Preston testified that on September 29, 1968 he, then 15, lived at home with his father, Andrew, in Bound Brook, N. J. That evening at or about 8 o’clock, he and a friend, Louis Delatorca, were alone in the family house watching television when he heard a knock on the back door followed by one at the front door. He opened the front door but not the screen door, and present was a man, later identified as defendant, who said he was an insurance agent looking for his [Edward’s] father. Defendant was admitted and he, immediately, pushed Edward back into the hallway and reached for a holster just above his waist and put his hand on a gun. Edward was very scared and obeyed the man’s command to get back into the living room. At this point he saw another person in the kitchen who had come in through the back way. His face was covered by something that looked like a nylon stocking which blurred his features.

Defendant then shoved Edward into the hall and directed him to phone his father. He did and told him that there were a couple of gentlemen in the house who wished to talk to him. He gave the phone to defendant who, before talking to the father, made Edward lie face down on the floor. The other man also took the phone and spoke to his father. The phone was given to Edward on two occasions and he conversed with his father each time, the last time for a couple of minutes. Shortly thereafter the police came to the front door and defendant and the other man fled through the back door.

Edward further testified that defendant threatened him and his friend: “He would take us to the river, take us to Newark and kill us and do away with us,” “castrate us,” “rough us up and mug us,” “We would never see our parents again.” While this was being said defendant put his foot heavily on Edward’s back. The result was to “scare [him] very much.”

On cross-examination Edward stated that he saw the gun handle and “a part of the metal.” He estimated the varnished wood handle was six or seven inches long. He was familiar with guns through his association with Boy Scouts and various police gun exhibits. He was definite in his opinion that this was a “real” gun. As to the threats he asserted, “Not for a minute did I think it was a joke or some sort of a ruse. I knew it was true.”

Delatorca, Edward’s friend, testified that he lay down immediately upon being told to do so but because he was so scared he didn’t pay attention to what transpired or was said.

Andrew Preston, Edward’s father, testified that he knew Turi for five or six years and defendant for about one year, and that he would call one or the other on the phone in Plainfield or South Plainfield and place bets with them on horse races. He identified the phone numbers called. He stated he called and placed bets about six days a week. He met Turi once a week (Wednesday) for a payoff or a collection in various places in Somerville. Turi introduced defendant as his partner and stated, “He’ll be handling some of your calls from now on.” Thereafter, defendant handled 70% of the calls. He further stated that on most occasions he called defendant or Turi but there were times when both of them called him.

Preston further testified that by September 1968 he had accumulated a debt of about $600 in his betting and he was told by Turi that he had a week to pay.

On September 29, 1968, at or about 8 p.m., Preston was visiting in Somerville when he received a telephone call from his son. Thereupon, defendant took over the phone and threatened the two boys at home. Defendant told him that they had the boys “as hostages and they weren’t going to release them until they had the money.” He further told Preston that if the money wasn’t paid in two days “I’ll castrate those two boys and if you don’t get the money after that, we’ll get them a pair of cement shoes. We’ll see how they swim.” Preston stated he was positive that he was speaking to defendant since he had talked to him on the phone for the past year and recognized his voice. Preston also said he spoke with another person during the phone conversation and although he was not absolutely certain, the voice sounded like Turi’s. While he was talking, Preston wrote a note to his friend to go next door, call the police and send them over to his house.

The next morning Turi called Preston and told him that he was not the man at his home the night before and that defendant was not there either.

Eobert Ball, manager of the Plainfield business office of the telephone company, testified that two numbers called by Preston were listed in Turi’s name and two were in defendant’s name. He also identified a number of toll calls made to these numbers from Preston’s place of employment in Somerville. Lieutenant Karkowski of the Somerset prosecutor’s office testified as to bookmaking operations, stating that the telephoning in of bets was the usual system employed.

Defendant called one Hazel Nargi, who testified that he was employed with her in a bakery shop. She asserted that he did not leave the premises during his lunch hour and received telephone calls “very, very seldom.”

Neither defendant nor Turi took the stand but each called additional alibi witnesses.

Defendant first contends that the verdict was against the weight of the evidence as to each crime of which he was convicted. As to the offense of unlawful possession of a weapon, he argues that there was no evidence to show that the firearm was capable of being fired. This he asserts is necessary since a “pistol” is not a pistol within the meaning of N. J. S. A. 2A:151-41 unless, as prescribed by N. J. S. A. 2A:151-l(a), a bullet or missile may be fired therefrom. This point is being raised here for the first time. Defendant did not move for a judgment of dismissal on this ground in the trial court, either at the end of State’s case or at the termination of the entire case.

Although young Edward testified that he only saw the handle and a part of the metal exposed from the holster worn by defendant, nevertheless he was positive, based upon his experience with guns, that this was a “real gun.” A rational inference from this evidence, tantamount to legal proof of the fact, is that the gun was capable of being fired. The conviction could reasonably rest upon this inference and thus, was not against the weight of the evidence. See State v. Martinek, 12 N. J. Super. 320, 325 (App. Div. 1951). Thus, we find no error, let alone plain error. R. 2:10-2.

With regard to the charge of threats to take a life, defendant claims that the verdict was against the weight of the evidence in that the threat was conditional, equivocal and inconclusive. This claim is without substance. The record contains more than ample evidence from which the jury could have found that defendant seriously and presently threatened the lives of the two boys. The fact that the threats made were conditioned upon the father’s failure to pay the money allegedly owed as a gambling debt does not make the threat any the less real. State v. Hamre, 247 Or. 359, 429 P. 2d 804, 808 (Or. Sup. Ct. 1967). It is necessary only that the threats impart the expectation of bodily harm or death, thereby inducing fear and apprehension in the person threatened. State v. Lizoite, 256 A. 2d 439, 442 (Me. Sup. Jud. Ct. 1969); Stale v. Gashman, 217 A. 2d 28 (Me. Sup. Jud. Ct. 1966). The words used by defendant clearly possessed that characteristic. Cf. State v. Morrissey, 11 N. J. Super. 298, 301-302 (Cty. Ct. 1951).

Defendant’s contention that the bookmaking conviction was against the weight of the evidence is without substance. There was more than ample evidence to support this determination by the jury.

Next, defendant asserts the trial court erred in refusing to charge that “there must be an intent to commit the act” — to take a life. He argues that such an intent is prerequisite to a conviction under N. J. S. A. 2A:113-8. This argument lacks merit. As stated above, the gist of this crime is that the words used are of such a nature as to convey the menace or fear to the ordinary hearer. “It matters not whether defendant had or had not the intention later to carry out the threat.” State v. Lizotte, supra, 256 A. 2d at 442. Thus, the court properly refused defendant’s request to charge.

At this point we consider defendant’s contention that we should “direct a new trial where newly discovered evidence exculpates one defendant where the convictions against both arose out of the same factual circumstances and they were tried together.” The basis of this assertion rests upon another bizarre chapter in this story. On October 24, 1969 James E. Schultheis, defendant’s brother, gave the prosecutor’s office a voluntary statement wherein he stated that Louis Turi was not present in the Preston home on the night in question — September 29, 1968 — but that it was he who was there with defendant. He denied that defendant had a gun. He also asserted that it was he, not defendant, who answered the telephone when Andrew Preston called in his bets. He conceded, however, that defendant knew that a separate phone was located in his house and the purpose for which it was used. He further stated Turi suggested before the trial that he didn’t think he was going to be convicted and therefore “Let me go and see how everything goes. If worse comes to worse, then you’ll have to go and tell the real story.” On December 12, 1969 James Schultheis submitted to a polygraph test and the State Police officer who conducted it concluded that “he gave a truthful statement at the prosecutor’s office.”

Thereafter, we are told in defendant’s brief, and it is not denied by the State, Turi’s convictions for breaking and entering with intent to assault Andrew Preston and for threatening the lives of the two boj^s were vacated. Apparently, the bookmaking conviction was not disturbed. The record does not disclose the manner in which this result was accomplished. Defendant concedes that a fraud was perpetrated upon the lower court, but he attempts to make Turi “the instigator and brains” of the venture and the benefactor thereof.

The statement made by defendant’s brother was not “newly discovered” evidence. In order to be of that category the evidence “must have been discovered since the original trial.” State v. Sullivan, 43 N. J. 209, 232—233 (1964). Assuming that the plan was conceived by Turi, and we have some doubt of that, it was nevertheless agreed upon and carried out with the knowledge of defendant. The evidence that he now claims to be newly discovered was known to him at the time of trial but concealed with his participation. To allow him the benefit thereof would be to further an admitted attempt to practice a fraud upon the trial court. It may also be noted that the results of a polygraph test, whether favorable or unfavorable to an accused, are uniformly held inadmissible. State v. Driver, 38 N. J. 255, 261 (1962).

Hext, we treat with defendant’s argument that N. J. S. A. 2A :113-8 is unconstitutional because it is vague and uncertain. This argument was raised and rejected in State v. Gills, 134 N. J. L. 366, 361-368 (Sup. Ct. 1946). Cf. State v. Profaci, 56 N. J. 346, 349-353 (1910).

Defendant’s assertion that Somerset County did not have jurisdiction to try him on the charge of bookmaking is lacking in merit. R. 3 :14-1. A claim of improper venue must be raised by pretrial motion or else it is considered waived. State v. DiPaolo, 34 N. J. 219 (1961); State v. Greco, 29 N. J. 94 (1959). Defendant made no such motion.

Finally, we have considered ail other points raised by defendant and conclude that; they all are without substance.

Judgment affirmed.


author: Per Curiam. Carton, J. A. D.

text:
    NOPCO CHEMICAL COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BLAW-KNOX COMPANY, A CORPORATION OF NEW YORK, ET ALS., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided January 8, 1971.

      Before Judges Contokd, Kolovsky and Caetoet.

      Mr. Albert E. Fershing argued the cause for appellant (Messrs. Shurlcin, Hersh & Fershing, attorneys).

      Mr. Augustus Nasmith argued the cause for respondent Blaw-Knox Company (Messrs. Carpenter, Bennett & Morrissey, attorneys).

      Mr. John Methfessel argued the cause for respondent Central New York Preightways (Mr. Samuel A. Gennet, attorney) . ,

      Mr. Neil Beiseman argued the cause for respondent Harrison Warehouse Corporation (Messrs. Schreiber and Lancaster, attorneys).

      Mr. Bichard M. Icklan argued the cause for respondent Belby Transfer Company (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).

      Mr. Marvin A. Sacks argued the cause for respondent John S. Geiger & Sons, Inc. (Messrs. Feuerstein, Sachs & Maiilin, attorneys).
   Per Curiam.

We are constrained to agree with the judgment of dismissal as to all defendants in this case, notwithstanding the probability that the damage to the equipment occurred while it was being loaded or unloaded by crane and cable by one or more of defendants, Blaw-Knox, Harrison Warehouse, Geiger or Belby.

The only substantial proof as to how the damage occurred was that it was by steel cables rubbing against the equipment in the course of hoisting it without protective spreaders between the object and the cables. Cables were used by Blaw-Knox in loading onto Central Ereightways’ truck; by Harrison Warehouse in unloading from that truck and later in loading onto Belby’s truck, and finally by Belby (which may have been aided by Geiger) in hoisting the object to the third floor of plaintiff’s plant, and possibly in moving it into final position for use at that plant.

Taken as a whole, the proofs do not establish a basis for reasonably finding, as a matter of probability, that the damage was caused by any particular one of the four handlers mentioned. It could have been by any. See Hansen v. Eagle Picher Lead Co., 8 N. J. 133, 141 (1951). Hannett, plaintiff’s representative at the time of the occurrence (but not employed by it at the time of trial), testified he saw a smudge and a slight tear in the protective wrapping paper around the drums (the item damaged) while the equipment was at Harrison Warehouse. He complained to no one. Contradictorily, however, he said he saw no tear on the paper after delivery to plaintiff’s premises by Belby. However, he did see cable marks on the trunnion (axle) portion of the drums, a portion not protectively wrapped, while the equipment was on Belby’s truck before being lifted into the plant. But giving Hannett’s testimony the most favorable reading from plaintiff’s point of view, it would justify at most only an inference that either Blaw-Knox or Harrison Warehouse had done the damage, not that it was more probably one than the other.

There is no prima facie case against Central Ereight.ways by virtue of its status as an interstate common carrier or by reason of its having given a “clear receipt” to BlawKnox. It is true that a common carrier is liable for any damage to goods while in its custody. But the rub here is absence of proof that the damage (abrasion of the drums by cable) occurred during the carrier’s custody. Admittedly, Blaw-Knox put the equipment aboard the truck and Harrison Warehouse took it off, both firms using a crane and cable. The “clear receipt” given Blaw-Knox constitutes prima facie proof merely that there was no apparent damage to the goods when taken aboard by Central Freightways. Silver Lining, Inc. v. Shein, 37 N. J. Super. 206, 214 (App. Div. 1955); Lincoln Farm Products Corp. v. Central R. R. of N. J., 81 N. J. Super. 161, 168-169 (App. Div. 1963). It does not admit there was no concealed unobservable damage to the equipment. Even plaintiff’s representatives, Han-nett and Batchelar, both of whom saw the equipment before it was unwrapped at terminus, saw no damage to the drums at that time. Thus the giving of the receipt by Central Freightways, in the light of all the other proof would not furnish a basis to permit a jury to conclude that the goods were in worse condition when the carrier delivered them than when they were delivered to it — a necessary prerequisite to liability. Silver Lining, Inc. v. Shein, supra, 37 N. J. Super. at 214.

Plaintiff’s claim against Blaw-Knox for breach of warranty had to be dismissed because, on its own case, any defect in the article as manufactured was negatived by its own proofs that the defect was the result of abrasion by cable while in transit. Blaw-Knox could therefore bo held, if at all, only for damaging the goods in placing them aboard the carrier at Buffalo — a thesis not established against it by plaintiff’s proofs on the basis of probability as distinguished from mere speculative possibility. Hansen v. Eagle-Picher Lead Co., supra.

We are not insensitive to the plight of the unsuccessful plaintiff manifested by the dissenting opinion herein. However, it will be noted that discovery efforts by plaintiff were confined to interrogatories. No depositions were taken by it. Second, the mere denial of the motion to dismiss would not improve plaintiff’s proof position if defendants rested without offering proofs — their undoubted right. Finally, the interests of justice are not served if, in the effort to make plaintiff whole, a jury is permitted at random to select any one out of three or four defendants for liability where the greater mathematical probability is that the negligence is that of another of them, if of any at all.

The commercial policy considerations advanced by the dissent might well call for a legislative solution through arbitrary placement of responsibility in a proof situation of this kind (compare the Carmack amendment, cited in the dissent). In the absence thereof, we see no justification for judicial remission here of the ordinary procedural principle that a suitor must prove Ms case against a defendant by the preponderance of the probabilities.

Judgment affirmed; no costs.

Carton, J. A. D.

(dissenting). The majority concede the probability that one or more of the defendants handling the dryer during the course of its journey from the manufactory to the purchaser’s plant were responsible for its damaged condition. Yet they conclude that the law required the dismissal of the action at the end of plaintiff’s case along with the dismissal of all cross-claims without imposing upon any defendant the obligation of coming forward with evidence as to what it did while the machine was in its possession and control.

The law does not compel such a “lame and impotent conclusion.” Eeason and ordinary common sence dictate that in such a commonplace, mercantile situation (involving as it does the handling and transportation by successive but unconnected carriers and other bailees for hire) existing procedures be adapted or a new remedy be devised which will cause those parties most likely to possess knowledge of the occurrence to come forward with the facts peculiarly within their possession. To me it seems indefensible that the court should stand idly by and lend itself to such an obvious thwarting of justice.

Such judicial reticence cannot be rationalized on any hypothesis that it is improbable any one defendant can be shown to be liable. This assumption discounts the possibility — and perhaps likelihood — that the defendants’ proofs may well single out the one responsible from the group of those probably liable. Granting of judgment, at least at this juncture, is premature on any thesis.

The broader concept implicit in the majority’s view that defendants have no responsibility to offer proof, and that the courts have no power to compel a full exposure of the facts, suggests a reverence to procedure which contravenes the modern insistence that canses be determined on their merits.

There is no lack of feasible machinery to bring about a full disclosure of the facts and an ultimate determination on the merits in this case. A fuller review of the evidence than is related by the majority opinion will exemplify the inequity perpetrated simply because there exists no clear-cut precedent.

The dryer is a piece of machinery used to convert liquid chemicals into dry powders. It was purchased from defendant Blaw-Knox by plaintiff Nopco’s purchase order dated November 23, 1964, specifically requiring that it meet a certain production capacity when installed and operated in accordance with drawings and instructions.

Blaw-Knox delivered it f.o.b. Buffalo to defendant Central New York Ereightways, Inc. and loaded the machine onto Central’s truck pursuant to a shipment contract. Central, an I. C. C. carrier, accepted the equipment on July 7, 1965 for shipment to Harrison Warehouse for Nopco as consignee. Upon acceptance of the equipment, Central issued a "clear receipt” to Blaw-Knox.

The next day Central transported the dryer on a flatbed truck to its Harrison destination as specified in the bill of lading. There defendant Harrison Warehouse Corporation’s employees unloaded the dryer and placed it in the warehouse for storage. Harrison acknowledged that the dryer was received on July 8, 1965 for Nopeo’s account and that it was stored until on or about August 5 of that year.

On or about the latter date, Belby Transfer Company, under agreement with plaintiff, sent a truck-crane, which Belby had hired from defendant John S. Geiger & Sons, Inc., to Harrison Warehouse. The machine was loaded on Belly’s truck by means of cables from an overhead crane operated by Harrison’s employees. Belby delivered the dryer to plaintiff’s plant. Either Belby’s or Geiger’s employees lifted the dryer to the third floor of the Nopco plant by means of a cable and crane operation. After the deposit of the dryer in the proper location, Nopeo’s employees connected the steam piping and the electrical connections but did not move the dryer itself. Plaintiff’s employees first discovered the damage which rendered the machine inoperable after its delivery to the Nopco plant when, in the presence of W. S. Woodhouse, Blaw-Knox’s field engineer, the paper wrapping was removed from the drum.

There was credible evidence that the dryer was damaged in more than one area. The drum was damaged along the edge rendering the machine inoperable. This area had been covered by a heavy paper wrapping. Although that wrapping was smudged and scraped, the protective covering itself was not torn through. Damage to the trunnion or axle and flange was also present. This damage was visible at the time of the delivery to plaintiff. At that time Hannett, an engineer then employed by Nopco, determined that the markings on the trunnion would not interfere with the machine’s operation, and that this damage was not caused by Belby. Thereupon, he issued a clear receipt to the Belby Transfer Company.

Further damage consisted of a series of small dents on the inside of the drum. However, it appears that this defect did not seriously affect the operation of the dryer.

Lastly, injury to the interior lining of the drum was caused by a revolving internal knife. This damage occurred after necessary repairs had been effected as to the previously listed defects.

Plaintiff offered no direct proof as to how the dryer was damaged. Nopco reasoned that since the machine was in a damaged and defective condition when it arrived at its plant, one or more of the defendants were responsible for the condition of the dryer. Plaintiff charged Blaw-Knox with negligence and with breach of contract and warranty as to fitness of the equipment for the use intended. Central New York Ereightwaj^s, Inc. was included as a defendant on the basis of negligence and its absolute liability as an I. C. C. carrier. Plaintiff also charged John S. Geiger & Sons with negligence, Harrison Warehouse with negligence based on breach of its duties as a warehouseman, and Belby for negligence as an intrastate carrier and bailee. Ho specific act of negligence was contended as against any defendant, nor did plaintiff offer to prove in whose hands the damage occurred.

In addition to the foregoing facts, plaintiff offered proof on the basis of interrogatories propounded to Blaw-Knox. It appears that Blaw-Knox’s employees arranged with Central for delivery of the machine to the Harrison Warehouse as per Hopco’s request; that Blaw-Knox used a crane and cable with wooden blocks between it and the drum when it loaded the machine onto Central’s truck; that on or about September 15, 1965 its field engineer inspected the dryer at plaintiff’s plant for the purpose of making a test operating run, and that as a result of that examination damage was discovered to the chrome plating on the drums. Visible cable marks were proximate to the damaged portions of the machine.

Central answered, in response to interrogatories, that Blaw-Knox loaded the machine onto the truck by crane; that the dryer was tied down on the truck by block chain and tarpaulin, and that on delivery to the warehouse the machine was unloaded by Harrison hv use of a crane and cable.

Through similar interrogatories, Harrison stated that it took the dryer off the truck by means of an overhead crane; that Harrison received one crate, one skid, one motor and three boxes; that the “dryer was crated and skidded,” and the “chrome plated roller assembled were within drier [sic] paper wrapped”; that the dryer was moved after being unloaded, and when reloaded onto Belby’s truck was lifted by a cable and an overhead crane aided by slings placed under the skid and dryer; that Harrison’s employees inspected the dryer on its arrival on July 8, and its departure on or about August 5, 1965, and that no damage was noted while the equipment was in Harrison’s possession.

Belby, in answer to interrogatories, stated that when the dryer was being picked up inside the warehouse it was loaded by means of an overhead crane operated by Harrison’s employees using rope cables — cable slings passed under the crated and skidded dryer and hooked to the crane’s lifting cable; that upon delivery to Hopeo the dryer was hoisted to the third floor of plaintiff’s building by means of the truck crane in an operation in which “cables from truck crane were fastened to slings under skid and drier [sic] * * * [and was] placed in from bed of truck into third floor opening of Hopeo building.”

Plaintiff also offered the testimony of its plant engineer, Dennis Batchelar. He, along with Hannett, viewed the machine at the Harrison Warehouse several weeks after its arrival at the warehouse. At that time the machine was skidded, the drums were wrapped in paper and the remaining parts, the crates, hood and motor, were stationed beside them. He did not remove or look under the paper or see the drums themselves.

Batchelar procured the Belby Transfer Company to transport the machinery from the warehouse to the Hopeo plant. Upon delivery to the plant, the dryer was lifted by crane to the third floor. He averred that Hopeo did no lifting or hoisting of the machine and that no work was done by Hopco’s employees on the dryer other than steam fitting and electrical connecting work. He testified that Woodhouse, Blaw-Knox’s field engineer, showed him the damage after the dryer was delivered to the Hopeo plant. Woodhouse found that “damage occurred on the edge of the drums where the cylindrical surface meets the flat end of the drums right on the corner” and in “several places where the chrome surface was broken.”

Batchelar stated that there were cable marks on the trunnions, which are the “axles of the drums that fit in the end frames.” The engineer expressed the opinion that a cable had been applied to the trunnions, attached to a crane or hook and drawn up. As it was being lifted, the cable pinched in against the flange and edge of the drum causing abrasion and damage. Batchelar was also shown photographs of the dryer which he testified reflected the damage to the drums as well as the attempted repairs made by the Mirror Plating Company at the Kopco plant.

Batchelar added that Woodhouse, after inspecting repairs made by Mirror Plating at Kopco’s premises, indicated that the machine was still not operable. After some discussion with Blaw-Knox’s representatives, it was decided that rather than send the machine to the plating company directly, it should be sent to Blaw-Knox who would in turn send it to the plating people. Upon the return of the drums from Buffalo to Kopco, an operating test was conducted. At this time additional damage (having no connection with the original defect) was caused by the internal knives of the dryer. As a result of further discussions with Woodhouse, it was concluded that the drums had to be “stoned” to correct the damage. This stoning took place at the Kopco plant. On March 1, 1966 the machine performed satisfactorily for the first time.

I-Iannett testified that he was present at Kopco when the paper wrapping was removed. The damage to the dryer was first discovered in Woodhouse’s presence. Hannett stated that he had visited Harrison Warehouse for the purpose of verifying that all the parts had arrived. Although he did not inspect the equipment, he did notice smudge marks on and slight tears in the paper covering the drums. He corroborated Batcholar’s testimony as to the attempted field repair by Mirror, the negotiations with Blaw-Knox, and the subsequent knife damage. He expressed the opinion, as an engineer, that the damage to the drum was caused by the impression left by a steel cable attached on the trunnion end.

The trial court, in dismissing the action against all defendants, ruled that plaintiff had failed to sustain the burden of proof that any particular defendant was responsible for the damage. Over plaintiff’s objection, the court also granted defendants’ applications to withdraw their various cross-claims for contribution on the theory that since plaintiff could show no right of recovery against any one of them, it was not entitled to insist they proceed to adduce evidence on the issues thus raised.

In large degree, plaintiff’s dilemma arose because the equipment had to be shipped and handled by various unconnected concerns en route to its plant. This circumstance would render it unlikely that plaintiff, any more than any other purchaser of merchandise shipped by carrier and stored by warehousemen, would have acquired or could have readily obtained information as to when the alleged damage occurred or as to what or who caused it. Discovery procedures, of course, are available, but have practical limitations peculiar to the transportation sector of the commercial world. Moreover, elaborate and expensive discovery methods should not be a prerequisite to a cause of action in all situations. Would not almost the precise situation which confronted the trial court be presented if the item damaged in transit were a household refrigerator, a television, or even a radio? Could it reasonably be argued that in order for the purchaser to recover he ought to be required to take the depositions of all of the persons who successively handled the product?

The Uniform Commercial Code, “Sales,” represents a recognition of an allocation of responsibilities between parties to commercial transactions generally in such a way that modern enterprise can be maintained in a practical and inexpensive manner. See, generally, N. J. S. A. 12A:2-201 et seq. So too, the responsibilities of those involved in transportation and warehousing commerce have been modernized by the Interstate Commerce Act (49 U. S. C. A. § 1 et seq.) and Uniform Commercial Code, “Documents of Title” (N. J. S. A. 12A:7-101 et seq.). These codifications embody, in large measure, judicially pronounced developments in the- law merchant. These modernizations of commercial law include many situations which require the defendant in a commercial transaction such as that here involved to come forward with information peculiarly available to him.

Plaintiff, of course, could have initially started a separate action against a single defendant. By doing so, the rights and duties existing between Hopeo and the particular defendant would be placed in sharper focus. But such a course of action would also have jeopardized Hopco’s right of probable recovery by facilitating the defense of the party initially sued that others rather than it were chargeable for the damage. And, if plaintiff failed in its first effort to fix responsibility, it would have no alternative except to proceed against each succeeding or preceding defendant and go through the same process. The public interest in avoiding circuity of action and in maintaining a rational relation between the cost of achieving justice and the value of the subject matter of the litigation allied with plaintiff’s self-interest dictated the bringing of a single action.

Certain presumptions established for the protection of a receiver of property in interstate and intrastate commerce, including those where connecting carriers are involved and those concerning common carriers on through shipments, are not available to plaintiff in this ease. See Herman v. Railway Express Agency, Inc., 17 N. J. Super. 10 (App.Div. 1951) (recognizing the presumption that injury resulted from negligence of last of line of connecting carriers); New Jersey Bell Tel. Co. v. Penna-Reading S. S. Lines, 11 N. J. Super. 129 (Law Div. 1950) (establishing liability of delivering carrier under interstate through bill of lading for loss or damage in transit by any of connecting carriers). Compare Dantes v. McGann, 98 N. J. L. 55 (Sup. Gt. 1922), to the situation in this case. See also Prosser on Torts (3d ed. 1964), § 39; 2 Harper and James, The Law of Torts, § 19.7 at 1085, 1089 (1956).

Only one of the parties, Central New York Freightways, is a carrier subject to the jurisdiction of the Interstate Commerce Commission. Belby is the only other carrier. Furthermore, the goods were not shipped on a through bill of lading to plaintiff’s plant, but were delivered to Blaw-Knox f.o.b. Buffalo for transportation only to Harrison Warehouse. However, this staggered delivery process should not derogate from the fact that the procedures used were essentially one continuous transaction. The underlying considerations which prompted the common law to shift the burden of producing evidence to the party having peculiar knowledge of the occurrence is equally appropriate in this mercantile transportation transaction.

Here, Hopeo was the purchaser of a piece of newly-manufactured machinery. If plaintiff’s proofs that its employees merely made the connections and did not work on the dryer itself were given credence, defendants Blaw-Knox, Central New York Preightways, Harrison Warehouse, Belby, and Geiger were the only parties who had anything to do with the manufacture and delivery of this equipment prior to the discovery of the damaged condition. On the basis of such proof, the original damage to the drums and the trunnions had to be attributed to one or more of these defendants. Ho one contended that the damage was the result of an act of God for which plaintiff could have no recourse.

Whether the burden of coming forward should begin with the bailee last to be in control (see Julius Klugman's Sons v. Oceanic Steam Nav. Co., 42 F. 2d 461 (S. D. N. Y. 1930)), or whether a procedure similar to that mandated by the Carmack amendment should be adopted, (49 U. S. C. A. § 20, par. (11)), plaintiff should have the benefit of such evidence.

As each bailee introduces evidence as to its part in the transaction, plaintiff would be entitled to the benefits of that .evidence as against the succeeding or preceding bailee.

There is some indication that some, if not all, defendants were issued clear receipts upon their delivering the dryer to the successive party. Although such a receipt may be prima facie evidence of delivery visably in good order, the clear receipt does not have a like effect with respect to any concealed damage, nor does it relieve the respective party of the duty of coming forward with evidence on this score. Cf. Lincoln Farm Products Corp. v. Central R. R. of N. J., 81 N. J. Super. 161 (App. Div. 1963); Silver Lining Inc. v. Shein, 37 N. J. Super. 206 (App. Div. 1955).

Since the record is not entirely clear as to whether Geiger & Sons supplied the truck-crane for use by Belby, or whether its men also participated in rigging the apparatus or in the unloading operation, disposition of the motion to dismiss as to this defendant should also be held in abeyance until the conclusion of the evidence. The record indicates that an indemnification agreement exists protecting Geiger. However, Belby’s liability to Geiger under the agreement must await disposition as a cross-claim unless liability thereunder is previously stipulated.

If the successive bailees absolve themselves from liability, that evidence would then be available as against Blaw-Knox in plaintiff’s action for breach of contract and implied warranty. N. J. S. A. 12A:2-314 and 315. That Nopco did not follow the method of recovery authorized by the express warranty may not foreclose its right of recovery against BlawKnox if that manufacturer did not validly disclaim its implied warranties. N. J. S. A. 12A:2—316. Moreover, since Blaw-Knox through its representatives, negotiated with Nopco to effectuate repairs through a particular means, the efficacy of the sole remedy authorized by the express warranty may have been waived. N. J. S. A. 12A:2-316.

Moreover, the secondary damage to the drum lining caused by the revolving knives occurred at plaintiff’s plant after the other damage was already corrected. It appears that this malfunction was unrelated to the original damage. BlawKnox may be independently liable under its implied warranties for this apparent defect. See N. J. S. A. 12A:2-314, 315 and 316.

Plaintiff’s evidence, together with all legitimate inferences therefrom, presented at least a sufficient basis for requiring that each of those defendants in whose custody and control the damage might have occurred to come forward with evidence as to their respective part in the transaction. Cf. Gould v. Winokur, 104 N. J. Super. 329, 332 (App. Div.), certif.

den. 53 N. J. 582 (1969). The decision on the motions for dismissal and on the defendants’ various cross-claims should have been held in abeyance until the close of all the evidence. See R. 4:37-2(b) and (c) and 37-3.

Such action by the court represents no radical departure from existing procedures and imposes no onerous or unreasonable burden on any defendant already a party to the litigation. Most important, it permits an adjudication on the merits, the ultimate goal of every judicial proceeding.

I would reverse and remand for a new trial.

       The nature of the damage strongly suggests it was done by only one of defendants Blaw-Knox, Harrison Warehouse, or Geiger and Belby (who worked together) However, there is also a slight possibility from the evidence that the damage was done by the steamfitters, electricians or other workers who connected up the equipment for plaintiff after it was delivered and before the damage was discovered. Discovery of the damage, under the varying proofs, could have been three days or three weeks after delivery of the equipment.

       See footnote 1, above.