author: McKenzie, J. C. C.,

text:
    RITA SCULLY, PLAINTIFF, v. WILLIAM SCULLY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 22, 1972.

      Mr. L. T. Vincenti (Union County Legal Services Corporation) for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned. The sole question for our consideration is whether plaintiff’s cause of action for divorce satisfies the requirements, of N. J. S. A. 2A:34-2(e) which provides in pertinent part that a divorce may be adjudged if it can be shown that defendant suffered from “Habitual drunkenness for a period of 12 or more consecutive mouths subsequent to marriage and next preceding the filing of the complaint.”

Plaintiff’s proofs demonstrate defendant imbibed heavily of alcohol during the statutory period, but it also appears that during that period there was a two-month hiatus during which he participated in an alcoholic treatment program and totally abstained from the use of alcoholic beverages. Thus the question arises as to whether this period of abstention tolled the running of the statute, and thereby defeats plaintiff’s cause of action.

Habitual drunkenness has only recently been made a ground for divorce. In McVey v. McVey, 119 N. J. Super. 4, 6 (Ch. Div. 1972), habitual drunkenness was defined as “a fixed, frequent, irresistible or regular habit of drinking alcoholic beverages in such excessive quantities as to produce drunkenness.”

In its report to the Governor and Legislature, the Divorce Law Study Commission, commenting on the objective of the new divorce law, stated:

The premise is that dead marriages should be terminated at the option of either party. It follows that fault is immaterial. A divorce should not be granted as a reward for virtue or imposed as a punishment for marital sin. The public interest is concerned with the stability of functioning and meaningful marriages. [Final Report, May 11, 1970, at 74]

As to habitual drunkenness as a ground for divorce, the Study Commission stated that

The terms used in the proposed draft constitute or attempt to make the proposed ground functional. It is a non-fault ground for divorce. Red tape has been eliminated. Mental illness, drug addiction and alcoholism in effect are equated as medical problems, which is in accord with current thinking, [at 76]

These statements evince a clear intention that the touchstone for the granting of a divorce on non-fault grounds is the inevitable breakdown of the marriage. See Wanser v. Wanser, 119 N. J. Super. 190, 191 (Ch. Div. 1972). As yet, no reported New Jersey ease has dealt with the precise question here presented, hat we find persuasive authority from other jurisdictions which recognize similar grounds for divorce.

In Dorian v. Dorian, 298 Ill. 24, 131 N. E. 129 (1921), the Supreme Court of Illinois considered whether a defendant who was twice confined in order to correct a drinking problem and abstained from the use of intoxicating beverages for a short period upon release was a habitual drunkard within the meaning of its statute. In concluding that the statutory requirement was met the court stated:

The fact that for a portion of the time she was not intoxicated because she could not get any intoxicating liquor, and that for short periods she voluntarily abstained, does not indicate that she was not guilty of habitual drunkenness during the time. Intoxication without intermission is not necessary to habitual drunkenness, and the evidence is conclusive that the defendant’s habit of intoxication was never reformed. An instruction based on the hypothesis that these periods of abstention constituted reformation was properly refused, [at 130-131; emphasis added]

Accord: Tarrant v. Tarrant, 156 Mo. App. 725, 137 S. W. 56 (Ct. App. 1911); Hereid v. Hereid, 209 Minn. 573, 297 N. W. 97 (Sup. Ct. 1941); Vesolowski v. Vesolowski, 403 Ill. 284, 85 N. E. 2d 695 (Sup. Ct. 1949). See, generally, Annotation, 29 A. L. R. 2d 925 (1953).

Thus the test is not the total number of days, weeks or months in the 12-month period that defendant was drunk, but whether, viewed in its entirety, defendant’s association with alcohol during that period was sufficiently persistent and substantial to undermine and destroy the basic precepts on which a marriage is founded. The necessary determination can be made only after weighing the facts and circumstances in each case.

In the present ease there has been testimony from the plaintiff that her husband has been addicted to alcohol since 1965, that he has been drunk for extended periods of time, that he has unsuccessfully sought help on several occasions, and that both she and her children have endured substantial physical and mental suffering as a result of her husband’s alcoholism.

Additionally, there was expert testimony from Mrs. Teresa McGeary, Director of the Union County Division of the National Council on Alcoholism, North Jersey Area, who testified that from a medical standpoint defendant suffered from alcoholism even during the two-month abstention period, and that he continues to suffer from the disease to the present time. See “Criteria for the Diagnosis of Alcoholism,” American Journal of Psychiatry, 139.3 (Aug. 1973). Even though habitual drunkenness, the statutory test, and alcoholism are not necessarily mutually inclusive terms, evidence of the latter clearly is a factor tending to establish the former.

Prom the facts presented, the court finds that defendant’s two months of abstinence did not toll the running of the statutory period. Indeed, it may even be argued logically that defendant’s unsuccessful attempt to eschew permanently his predilection to alcohol is added proof of the ingrained nature of his “habit,” and of the hopeless future facing plaintiff if she is obligated to continue the marriage relationship.

The court therefore concludes that plaintiff has proved a cause of action entitling her to a divorce due to the habitual drunkenness of defendant for the required period. A judgment will be entered accordingly.


source: Caselaw Access Project

author: Toscano, J. C. C.

license: Public Domain

text:
    ROBERT A. DEVANEY, AN INFANT BY HIS GUARDIAN AD LITEM, JOHN R. DEVANEY AND JOHN R. DEVANEY AND JEANNE DEVANEY, INDIVIDUALLY, PLAINTIFFS, v. LOUIS SARNO, VOLKSWAGEN OF AMERICA, INC. AND CENTRAL VOLKSWAGEN, INC., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 8, 1973.

      Mr. Arthur C. Gundersdorf, attorney for plaintiffs.

      Mr. John B. Kingsland, attorney for defendant Louis Sarno.

      Messrs. Crummy, O’Neill, Del Deo & Dolan, attorneys for defendant Volkswagen of America, Inc.

      Messrs. Shenier, Gilady & Harwood, attorneys for defendant Central Volkswagen, Inc.
   Toscano, J. C. C.

This action arises out of an accident between autos driven by plaintiff Robert A. Devaney and defendant Louis Sarno on October 4, 1970, on Bast Shore Road, Warwick, New York. At the time of the accident plaintiff was operating a 1970 Volkswagen sedan that he had purchased about three weeks earlier in Fair Lawn, New Jersey, from defendant Central Volkswagen, Inc., a distributor of defendant Volkswagen of America, Inc., the manufacturer. Plaintiff settled with the defendant Sarno in the amount of $20,000 and now proceeds against the Volkswagen defendants.

Plaintiff’s case against the auto manufacturer and distributor is based upon the theories of negligence, breach of express and implied warranties, and strict liability in tort for the alleged failure of defendants to provide him with a functional seat belt, which failure allegedly caused plaintiff to be more seriously injured than he otherwise would have been had the seat belt been operative. Plaintiff’s deposition indicates that he wore the seat belt when he first drove the car from the showroom and that upon his arrival at home he experienced difficulty in releasing the belt. He testified that it took minutes for him to unfasten the belt initially and that immediately thereafter a second attempt to release the belt was successful after “a couple of seconds” but that the mechanism was still not working in a normal fashion. Plaintiff thereafter did not attempt to use the belt and he pointed out the difficulty when he took the vehicle back to the distributor for the 1000-mile checkup about ten days later, at which time the actual mileage was 951. When the car was returned to plaintiff, he was told that the parts needed to repair the seat belt were on order and that he would be notified when they arrived. Plaintiff subsequently drove the vehicle without utilizing the seat belt.

Defendant Volkswagen of America, Inc. has filed a motion for summary judgment on the ground that plaintiff is barred from recovery since he voluntarily chose to drive the auto without the benefit of a seat belt. The usual standards for the determination of such a motion must be applied. Where it palpably appears that there is no genuine issue of material fact presented, the court is to decide the matter on the applicable law. Bowler v. Fidelity & Cas. Co. of New York, 99 N. J. Super. 184 (App. Div. 1968). All doubts in such proceedings are to be resolved in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954).

Applying these standards to the instant case, the court must assume, for purposes of this motion, that plaintiff was not operating his vehicle in a negligent manner at the time of the accident; that the defect in the seat belt was such that it was in effect unavailable to plaintiff at that time; that the defect arose through the negligence of defendant Volkswagen, and that plaintiff would have been wearing the seat belt if it had been functioning properly, nevertheless, this court concluded that defendant is entitled to summary judgment regardless of any of the three theories advanced by plaintiff.

As far as contributory negligence is concerned, plaintiff argues that there is no common law duty on the part of the occupant of a motor vehicle to use a seat belt; plaintiff cites Barry v. Coca Cola Co., 99 N. J. Super. 270 (Law Div. 1967), in support of this proposition. That ease involved an attempt by a driver-defendant to assert contributory negligence on the part of a passenger-plaintiff. Such a case is decidedly different from the instant situation: there the party who had negligently caused the impact from which injuries ensued wanted to evade partial responsibility by focusing on the failure of the plaintiff to use a seat belt; here the moving defendant had nothing to do with the impact but is only collaterally involved via the seat bolt issue. In any event, Judge Lynch indicated in Barry that the decision to strike the defense of contributory negligence was based in part on the fact that defendant offered no evidence as to how much the injuries were aggravated by the failure to use a seat belt. See Cierpisz v. Singleton, 230 A. 2d 629 (Md. 1967), and Tom Brown Drilling Co. v. Nieman, 418 S. W. 2d 337 (Tex. Civ. App. 1967). In the present case there is a proffer of testimony of an “accident reconstruction expert” to substantiate the claim that failure to use a seat belt aggravated the injuries. But here such proof is offered by plainliff, the reverse of the usual situation!

Plaintiff, by settling with driver-defendant Sarno and proceeding against the Volkswagen defendants, has put himself in the unique position of having to argue on the one hand that it was negligence for the Volkswagen defendants to aid in the creation of a situation wherein plaintiff failed to use a seat belt, but on the other hand that it was not contributory negligence for him to drive without a seat belt. If defendant had a duty to provide for the protection of plaintiff against the injuries complained of, its duty was only coextensive with that of plaintiff, once plaintiff became aware that the vehicle was not equipped with a functional seat belt. In all logic, it is inconsistent to maintain that a manufacturer must provide a working safety feature but that the individual for whose benefit the safety feature was designed may act in conscious disregard of the fact that the safety feature is in effect unavailable to perform its function.

Therefore, plaintiff should not be entitled to go to trial against the moving defendant regardless of the view taken as to the proper resolution of the current judicial debate (involved in the Barry case, supra) as to whether a driver-defendant should be entitled to assert the failure of a plaintiff to use a seat belt as a defense or in mitigation of damages. The resolution of that issue depends upon whether a plaintiff as an occupant of a motor vehicle has a duty to see that he is secured by a seat belt before embarking on a trip in the vehicle. (The courts of several states that have considered the matter are in disagreement: it was held that the issue could be submitted to the trier of fact in Bentzler v. Braun, 34 Wis. 2d 362, 149 N. W. 2d 626 (Sup. Ct. 1967), and in Sams v. Sams, 247 S. C. 467, 148 S. E. 2d 154 (S. Car. Sup. Ct. 1966); it was held that evidence of the failure of a plaintiff to wear a seat belt was not admissible in Robinson v. Lewis, 254 Or. 52, 457 P. 2d 483 (Or. Sup. Ct. 1969), and Miller v. Miller, 273 N. C. 228, 160 S. E. 2d 65 (Sup. Ct. 1969).) If a plaintiff has no such duty to take steps for his own safety in this respect, he cannot logically assert that the manufacturer has such a duty; if, on the other hand, a plaintiff has such a duty, the duty was breached in this case and plaintiff was consequently guilty of contributory negligence.

In anticipation of an objection that might be made to the approach taken by the court in this regard, it should be pointed out that the enactment of the Federal Motor Vehicle Safety Standards, 32 Fed. Reg. 2408 (1967), did not impose upon the manufacturer a duty the breach of which would entitle plaintiff to the relief that he claims. The federal regulation required only that manufacturers incorporate approved sets of seat belts in their new vehicles for the benefit of the driving public at large. Clearly there was no violation of the federal regulation in this case. The duty to avoid installing a defective seat belt arises out of the common law and/or out of the law of warranties and extends to one who relies on an assumption that the item is free of defects. That is not the ease here; plaintiff did not rely on the seat belt in question. The matter would, of course, be different if plaintiff had unknowingly used the seat belt and been injured due to the failure of the belt to unfasten normally, which is the specific defect that existed in this case.

An alternative basis for the holding that plaintiff cannot prevail on the negligence count is the fact that the failure to use the seat belt was not a proximate cause of any of the injuries; rather, all injuries were proximately caused solely by the negligence of the driver-defendant Sarno, with whom a settlement has been reached. Such a theory would foreclose any inquiry into whether plaintiff or the Volkswagen defendants or both were responsible for the failure of plaintiff to be wearing the seat belt at the time of the accident. The Barry opinion did not rale out the possibility that it might be proper, as a general rule, to disallow evidence of a plaintiffs nonuse of a seat belt on the grounds that at this point it is for the Legislature, if it so chooses, to declare that the use of seat belts is mandatory. (Courts of other states have taken the position that the matter is one for the consideration of the Legislature. See, e. g., Lipscomb v. Diamiani, 226 A. 2d 914 (Del. Super. Ct. 1967), and Brown v. Kendrick, 192 So. 2d 49 (Fla. App. Ct. 1966).) Such a general rule would leave responsibility for all injuries sustained with the driver-defendant, whose negligence would stand as the sole proximate cause of such injuries. Under such an approach, if plaintiff had gone to trial against Sarno, the latter would have been precluded from asserting that plaintiff’s failure to use a seat belt contributed to the seriousness of his injuries. As far as the settlement with Sarno is concerned, it is difficult to imagine that the figure agreed upon involved a reduction based upon the assumption that some of plaintiff’s injuries were due to the failure to use a seat belt.

This court finds that the negligence count in the complaint is insufficient based upon three alternative theories, alluded to above, each of which is sufficient in itself to support this conclusion: (1) lack of duty on the part of the moving defendant, (2) contributory negligence on the part of plaintiff, or (3) lack of proximate causation between movant’s conduct and plaintiff’s injuries.

Plaintiff also proceeds against defendants on theories of breach of warranty and strict liability in tort. Our Supreme Court has held that contributory negligence is available as a defense in actions based on such theories. Maiorino v. Weco Products Co., 45 N. J. 570 (1965); Cintrone v. Hertz Truck Leasing, 45 N. J. 434 (1965). However, since this court has not held that contributory negligence is the sole basis for the insufficiency of the negligence count, the court will not rely on that theory in the following discussion of warranty and strict liability.

As far as breach of warranty is concerned, N. J. S. A. 12A:2-714 provides the buyer with a remedy for breach of warranty whereby he can recover "consequential damages,” which include, according to N. J. S. A. 12A :2-715(2) (b), "injury to person or property proximately resulting from any breach of warranty” (emphasis added). Assuming that a warranty was breached in that plaintiff received a vehicle with an inoperable seat belt, the question is whether any of plaintiff’s injuries proximately resulted from the breach. It would probably be better, from plaintiff’s point of view, to analyze the defective product as the vehicle itself rather than the seat belt, since it is difficult to conclude that injury could ensue from a defect in the seat belt in view of the fact that the seat belt was not used, nevertheless, it is apparent to this court that the assumed breach did not proximately cause plaintiff’s injuries either because, as suggested above, the sole proximate cause was the negligence of Sarno or because the conduct of plaintiff himself contributed to the injuries. With respect to the latter point, the New Jersey Study Comment on N. J. S. A. 12A:2-715 contains the following relevant language: “* * * Thus, if the buyer’s own fault or negligence contributes to the injury (e. g., by using the goods with knowledge of their defects), he cannot recover consequential damages, because such damages are not proximately duo to the breach of warranty.” (Emphasis added).

Plaintiff’s count in strict liability is presumably based upon Restatement, Torts 2d, § 402A at 347 (1965), which provides in part that a seller (or manufacturer) is liable for physical harm caused to the ultimate user by “a defective condition unreasonably dangerous to the user” that existed in the product in the hands of the seller. The comments to the cited section are helpful in determining whether the section is applicable to a given case. Again, the case will be analyzed in terms of the vehicle itself as the allegedly defective product to avoid the difficulty referred to in the preceding paragraph. Comment (g) qualities “defective condition” in that it points out that the condition must be one “not contemplated by the ultimate consumer, which will be unreasonably dangerous to him” (emphasis added). Clearly, in this case plaintiff was aware of the condition since he admits as much in his deposition, furthermore, there is some doubt that the vehicle was “unreasonably dangerous” merely because one of the seat belts was not functioning properly. Comment (i) explains the meaning of the phrase as follows: * * The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Gan it be said at present that the consumer would consider a vehicle that lacks seat belts a dangerous product, keeping in mind that few of the vehicles manufactured prior to the government regulations are equipped with seat belts? Clearly, the lack of seat belts is dangerous if an accident occurs, but with respect to any individual driver the occurrence of an accident is improbable enough that every injury-preventing device need not be provided. Einally, Comment (n) entitled “Contributory Negligence,” is worthy of mention. It contains the following relevant language:

* * * Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

With reference to the quoted language, one may inquire whether plaintiff can be charged with “proceeding unreasonably,” but the answer to that depends upon how dangerous it is to drive without the benefit of a seat belt. To the extent that plaintiff might contend that he acted reasonably, he must at the same time concede that the “defect” did not constitute a “danger,” which in turn renders section 403A inapplicable since it requires an “unreasonably dangerous” condition.

There are numerous reported cases involving actions based upon breach of warranty and strict liability in which plaintiffs were denied recovery due to their own conduct in proceeding to use a product despite a known defect in the same. See Cintrone v. Hertz Truck Leasing, supra, and Bereman v. Burdolski, 204 Kan. 162, 460 P. 2d 567 (Sup. Ct. 1969), in each of which a plaintiff continued to use a vehicle with knowledge of difficulties with the brakes; Baker v. Rosemurgy, 4 Mich. App. 195, 144 N. W. 2d 660 (Ct. App. 1966), in which a plaintiff continued to use a rifle with knowledge of a defective safety; Barefield v. La Salle Coca Cola Bottling Co., 370 Mich. 1, 120 N. W. 2d 786 (Sup. Ct. 1968), in which a plaintiff continued to drink from a bottle after having discovered glass particles in the beverage. The instant case may be an even stronger one for nonliability of defendant than the cited cases since the allegedly defective item brought about the injuries only after the intervention of the negligence of a third party (Sarno), which would tend to exculpate defendant for its earlier conduct; the cited decisions involved no such intervening negligence.

Another recent decision involving facts analogous to the situation herein is Burkhard v. Short, 28 Ohio App. 2d 141, 275 N. E. 2d 632 (Ct. App. 1971). There plaintiff was injured while a passenger in a 1965 Chevrolet which collided with another vehicle. Plaintiff was thrown forward on impact against an unpadded steel cowl or dashboard. Suit was brought against General Motors Corporation on strict liability theory for an alleged design defect, namely, the lack of padding on the dashboard. Such padding was available as an optional item at the time of purchase of the vehicle in question. Summary judgment in favor of General Motors was affirmed. Section 4Q2A was held inapplicable, the court distinguishing cases of hidden defects and emphasizing the fact that the lack of padding was obvious. The court also spoke in terms of lade of duty on the manufacturer’s part: “* * * Under the'facts of the case before us, the manufacturer has no duty to the passenger injured by contact with an obviously unpadded cowl which could have been made ‘safer’ by padding and by recessing the same.” 275 N. E. 2d at 637. Again, the instant case may be even stronger for nonliability in that the seat belt was rendered unavailable due to inadvertence (at most) of defendant, whereas in Burkhard the lack of padding was an intentional omission on the part of General Motors and therefore more appropriate as a basis for culpability.

The result reached in this case is not an unreasonable one. The special situation involved in Bexiga v. Havir Manufacturing Corp., 60 N. J. 402 (1972), cited by plaintiff, is not presented here. In that case plaintiff was injured while operating for his employer a punch press which was devoid of allegedly needed safety features, and the Supreme Court held that it was error to disallow the case from going to the jury. Aside from other distinguishing aspects, plaintiff was there under a certain compulsion to operate the machine by virtue of the fact of his employment; here, plaintiff was under no compulsion and was in fact, according to his own deposition, on a late night pleasure trip at the time of the accident. Eurthermore, plaintiff had available to him the clear alternative of asserting his rights against the Volkswagen dealer immediately upon discovering the defect and demanding the transfer of an operable seat belt from another vehicle in stock or demanding the use of another vehicle pending correction of the seat belt problem.

Eor the foregoing reasons, summary judgment is granted in favor of defendant Volkswagen of America, Inc. and an appropriate order should be submitted.


author: Michels, J. S. C.

text:
    JOHN BOYLAN, ET AL., PLAINTIFFS, v. JOHN F. NASH AND ROBERT C. HALDEMAN, TRUSTEES OF THE PROPERTY OF LEHIGH VALLEY RAILROAD CO., DEBTOR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 9, 1973.

      Mr. Sidney C. Swirksy, attorney for plaintiffs.
    McGlynn, Ruprecht & Graham, attorneys for defendants.
   Michels, J. S. C.

Defendants, sued as Trustees of the property of the Lehigh Valley Railroad Company, debtor, moved for summary judgment in their favor on the ground that the within action was barred by an order entered in the United States District Court for the Eastern District of Pennsylvania in the reorganization proceeding involving the Lehigh Valley Railroad Company.

This action, as appears from the Complaint and Affidavits, was brought by plaintiff to recover damages for personal injuries sustained when he allegedly fell at the receiving window of the Lehigh Valley Railroad Yards in Newark, New Jersey, on January 19, 1970, while obtaining documents necessary to pick up a trailer carried on the piggyback service of the railroad and delivered to the railroad yard in Newark. In the complaint filed on January 10, 1972 plaintiff contends that defendant was negligent in the ownership, operation and maintenance of the railroad yard, and that as a result he slipped and fell on an accumulation of ice and snow.

On July 24, 1970 Lehigh Valley Railroad Company filed a petition for reorganization under section 77 of the Bankruptcy Act (11 U. S. C. A. § 205) in the United States District Court for the Eastern District of Pennsylvania. The order of that court entered the same day approved the petition and contained in paragraph 10 the standard stay of proceedings against the railroad authorized by 11 JJ. 8. G. A. § 205(j). Paragraph 10 of the court’s Order provided:

All persons and all firms and corporations, whatsoever and wheresoever situated, located or domiciled, hereby are restrained and enjoined from interfering with, seizing, converting, appropriating, attaching, garnishecing, levying upon, or enforcing liens upon, or in any manner whatsoever disturbing any portion of the assets, goods, money, deposit balances, credits, dioses in action, interests, railroads, properties or premises belonging to, or in the possession of the Debtor as owner, lessee or otherwise, or from taking possession of or from entering upon, or in any way interfering with the same, or any part thereof, or from interfering in any manner with the operation of said railroads, properties or premises or the carrying on of its business by the Debtor under the order of this Court and from commencing or continuing any proceeding against the Debtor, whether for obtaining or for the enforcement of any judgment or decree or for any other purpose, provided that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any Court of competent jusisdiction, and provided, further, that the title of any owner, whether as trustee or otherwise, to rolling stock equipment leased or conditionally sold to the Debtor, and any right of such owner to take possession of such property in compliance with the provisions of any such lease or conditional sale contract, shall not be affected by the provisions of this Order. [Emphasis added]

The phrase, “damages caused by the operation of trains,” should be given a liberal and not a narrow construction. See Rodabaugh v. Denney, 24 F. Supp. 1011 (D. C. N. Y. 1938); Liquid Carbonic v. Erie R. Co., 171 Misc. 969, 14 N. Y. S. 2d 168 (City Court, New York, 1939); 5 Collyer on Bankruptcy (14th ed.), § 77.12 at 517. In fact, it has been held that the phrase should not be construed so as to limit it solely to actions arising out of collisions and contacts of trains with other objects. See Cauldwell v. Erie R. Co., 167 Misc. 284, 3 N. Y. S. 2d 774, 775 (Sup. Ct. 1938). The operation of trains by a railroad requires much more than the mere physical movement of railroad cars and engines. It requires everything necessary to permit the railroad cars and engines to move, such as the ownership, operation and maintenance of tracks, bridges, passenger and freight terminals and railroad yards. Cf. United States Fire Ins. Co. v. Northern P. R. Co., 30 Wash. 2d 722, 193 P. 2d 868, 2 A. L. R. 2d 1065, 1073 (Sup. Ct. 1948).

Here, plaintiff’s injury allegedly occurred while in the process.of picking up a trailer at the railroad yard of the Lehigh Valley Railroad, which trailer had been delivered to the yard by the railroad’s piggy-back service. Plaintiff’s sole purpose and reason for being at the railroad yard at the time of the injury was directly related to and connected with the freight operations of the railroad. Construing the language of the phrase liberally, plaintiff’s injuries were caused by the operation of trains, and the stay is therefore not applicable to this case.

While there does not appear to be any reported decision of the courts of this State or of the United States District Court for the District of New Jersey involving the construction of the language of this stay, there is persuasive authority elsewhere which would support the result here contended for by plaintiff. Thus, in Rodabaugh v. Denney, supra, plaintiff was injured when the scaffolding upon which he was working collapsed while he was repairing a bridge over which trains of defendant trustees’ railroad ran. Plaintiff sued to recover damages alleging negligence in the construction of the scaffold by the railroad. The railroad moved to stay the action, which the court denied, stating:

The only question for present determination is whether the present action, one for injuries suffered by an employee prior to reorganization through the collapse of a scaffold in repair of a bridge over which the trains of the railroad company are operated, is within the excepted class.
In a very broad sense every action against a railroad company wherein money damages are demanded is an action for “damages caused by the operation of trains, busses or other means of transportation”. The primary business of a railroad company is to operate trains, and all its activities are incidental to the operation of trains. The words of the proviso are not to be construed so broadly; nor on the other hand, should they be construed so narrowly as to defeat the. put pose of Congress in enacting the proviso. Congress doubtless had in mind the fact that the district court in charge of reorganization might be a long distance from the court in which an action for damages might be brought, and that the obtaining of consent of the court in charge of reorganization might be a hardship on a claimant. This is a factor in favor of a liberal interpretation of the proviso. There is no apparent reason for a distinction between the ease of a plaintiff who is struck by a moving train and the case of a plaintiff who was injured by the collapse of a scaffold while working as an employee of the railroad. I am of the opinion that the present case is one “for damages caused by the operation of trains, busses or other means of transportation” and that the prosecution of the action in the usual maimer has not been restrained by the reorganization court. The motion for a stay will be denied. [24 F. Supp. at 1012]

In Liquid Carbonic Corp v. Erie R. Co., supra, the court 'held that plaintiff was entitled to maintain an action for damages to a bottling machine alleged to have been caused by the failure of defendant to provide proper unloading facilities for one of its railroad cars. Similarly, in Munnelly v. Farrell, 317 F. Supp. 329 (S. D. N. Y. 1970), the court refused to apply the stay to a suit by a workman who was injured while climbing aboard the caboose of a Central Bailroad freight car when he was struck by a bolt of elec'tricity from an overhead catenary line and hurled to the ground. See also Cauldwell v. Erie R. Co., supra; Reimann v. New York Central R. R. Co., 27 Ohio Misc. 81, 267 N. E. 2d 439 (C. P. 1971).

The right of plaintiff to maintain and prosecute this action to judgment -will not hinder, burden, delay or be inconsistent with the pending reorganization of the railroad under section 77 of the Bankruptcy Act. Cf. Foust v. Munson S. S. Lines, 299 U. S. 77, 87, 57 S. Ct. 90, 95, 81 L. Ed. 49, 56 (1936). The effect of any judgment which plaintiff may recover in this action will be merely to convert plaintiff’s claim for damages for personal injury into a liquidated claim. The judgment will not be executory against the railroad’s property and assets, and may only be enforced in and under the reorganization proceedings involving the railroad pending in the United States District Court for the Eastern District of Pennsylvania. See Jennings v. Pennsylvania Public Utility Commission, 140 Pa. Super. 569, 14 A. 2d 882 (Super. Ct. 1940); Reimann v. New York Central R. R. Co., supra.

Por the reasons set forth above, the within action will not be stayed, and defendants’ motion is hereby denied.

       Parenthetically, it may be noted the more appropriate procedure should have been a motion for a stay of action rather than a summary judgment under R. 4:46-2, and the court will therefore treat defendants’ motion as a motion for a stay. Cf. Munnelly v. Farrell, 317 F. Supp. 329 (S. D. N. Y. 1970) ; Reimann v. New York Central R. R. Co., 27 Ohio Misc. 81, 267 N. E. 2d 439 (C. P. 1971).

        11 U. S. C. A. § 205(j) provides:
      In addition to the provisions of section 29 of this title for the staying of pending suits against the debtor, the judge may enjoin or stay the commencement or continuation of suits against the debtor until after final decree; and may, upon notice and for cause shown, enjoin or stay the commencement or continuance of any judicial proceeding to enforce any lien upon the estate until after final decree: Provided, That suits or claims for damages caused by the operation of trains, busses, or other means of transportation may be filed and prosecuted to judgment in any court of competent jurisdiction and any order staying the prosecution of any such cause of action or appeal shall be vacated. * * *


author: Gascoyne, J. C. C.,

text:
    IN THE MATTER OF THE GUARDIANSHIP OF JANICE MORGAN, A MINOR. IN THE MATTER OF THE GUARDIANSHIP OF KENNETH DONKA, A MINOR.
    Morris County Court Probate Division
    Decided January 5, 1973.

      Janice Morgan, pro se

      Kenneth Donka, pro se
   Gascoyne, J. C. C.,

Temporarily Assigned. Both of these matters come on before the court on petitions for withdrawal of funds now in the custody of the surrogate pursuant to orders entered in the respective matters. In both instances monies were deposited as a result of the court’s approval of settlements entered on behalf of the infants. Both petitioners seek partial withdrawal of funds presently on deposit. Both infants have attained the age of 18 or more.

Pursuant to N. J. 8. A. 9 ¡17B-1-2-3, said minors are no longer in that category but are to be treated as adults as of January 1, 1973. In view of the foregoing, there is no valid reason why the funds presently on deposit with the surrogate should not be released upon the filing of the usual refunding bond and release.

The foregoing should not only be applicable to the former infants herein involved, but there seems to be no valid reason why the surrogate should have to administer any estate being held in trust for infants wherein the former infants have now attained the age of 18.


author: Per Curiam. Collester, P. J. A. D.

text:
    LEONARD M. DESSEL AND ARLENE B. BOGEN, EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF JOSEPH DESSEL, DECEASED, PLAINTIFFS-APPELLANTS v. JULIUS DESSEL, BENJAMIN DESSEL AND METUCHEN FOOD MARKET, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 7, 1972
    Decided March 30, 1972.

      Before Judges Collester, Lynch and Allcorn.

      Mr. Roger H. McGlynn argued the cause for appellants (Messrs. McGlynn, Stein & Eberiel, attorneys).

      Mr. Richard E. Plechner argued the cause for respondents (Mr. Michael J. Greenwood on the brief).
   Per Curiam.

Plaintiffs, executors under the Will of their deceased father, brought suit against decedent’s two surviving brothers and a corporation whose stock is now registered in the brothers’ names. The complaint prayed for imposition of a trust on one-third of the corporate stock, with defendant brothers as trustees, for the benefit of decedent’s immediate family. Plaintiffs’ cause of action was founded upon an alleged agreement to hold the property in trust, and alternatively, on an implied agreement arising “as a result of the relations between the defendants and the decedent.” Plaintiffs appeal from a judgment of involuntary dismissal of the complaint, granted on motion at the close of their proofs below.

In his decision, the trial judge held that plaintiffs had failed to satisfy the burden of proof for imposition of a constructive trust. He defined that burden as requiring proof of their case by “clear and convincing” evidence. In this respect, the court was correct. Gray v. Bradley, 1 N. J. 102 (1948); In re Estate of Land, 99 N. J. Super. 500, 506 (Ch. Div. 1968). However, the individual defendants claim that in 1956, they and decedent (each owning one-third of the corporate stock outright at that time) created a joint tenancy among themselves in the stock. They further claim that in 1968, decedent surrendered to defendants his interest as joint tenant in 774 shares of the 775 shares outstanding, with decedent retaining an interest as joint tenant only in the one remaining share. Defendant brothers are thus claiming, at least insofar at the 1968 transaction is concerned, that they were “donees” of that portion of decedent’s stock which became the subject matter of the joint tenancy in which they were joint tenants to the exclusion of the decedent.

At the end of the plaintiffs’ case, there was evidence from which the following inferences favorable to their cause of action could be drawn:

1) When in 1956 and again in 1962, stock certificates were issued purporting to create a joint tenancy among all three brothers, decedent did not understand that he was surrendering his outright ownership in one-third of the corporate shares to the incidents of a joint tenancy in which all three brothers participated, with respective rights of suryivorsMp implicit therein. It is significant that the decedent was the oldest of the three brothers and that his life expectancy was the shortest. The evidence which might have supported this inference was that on February 15, 1963, the decedent wrote what purported to be a holographic will in which he said, in part: “* * * Any money from the Metuchen Food Market, Inc. should go for living expenses for Ida, Leonard and Harvey Dessel. All stock in the Metuchen Food Market, Inc. shall not be sold without the consent of Benjamin Dessel or Julius Dessel. All stock is left to Arlene Betty Dessel Bogen, Ida Dessel, Leonard Martin Dessel, Harvey Heil Dessel.” This attempted disposition of ownership in one-third of the shares of the corporate stock could indicate that decedent did not, subjective^, limit his interest in the stock to that of a joint tenant but rather, conceived himself to be outright owner of one-third of the shares.

2) Several witnesses testified that the decedent, upon many occasions, stated that his one-third interest in the business would go to his son Leonard. This, too, is at odds with any concept that the decedent understood that his interest was limited to a joint tenancy as represented by the two stock certificates.

3) The 1968 certificates whereby decedent purportedly gave up his interest in 774 shares to a joint tenancy wherein his brothers, Julius and Benjamin, were the sole tenants (while retaining a joint tenancy interest in only one share) constituted a gift o'f his interest in the 774 shares from decedent to his brothers.

Indeed at the end of the plaintiffs’ case, the evidence was uncontradicted that the 1968 transaction in fact constituted such a gift. Therefore the principle set forth in In re Dodge, 50 N. J. 192 (1967), is brought into play:

The principle has been expressed frequently that “in all transactions between persons occupying relations, whether legal, natural, or conventional in their origin, in which confidence is naturally inspired, is presumed, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open, and voluntary, but that it was well understood.” [Id. at 227].

The purpose of that rule is not so much to afford protection against undue influence exercised upon the donor “* * * as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them [the donor and donee], the effect of which upon his own interests he may only partially understand or appreciate.” Slack v. Rees, 66 N. J. Eq. 447, 449 (E. & A. 1904), as quoted in In re Dodge, supra, 50 N. J. at 228. (Emphasis added). “In such a situation,” said Justice Francis in the latter ease, “the donee must show by explicit and convincing evidence that the donor intended to make a present gift and unmistakably intended to relinquish permanently the ownership of the subject of the gift.” Id. (Emphasis added).

There is no doubt that there was a relationship of confidence among the decedent and his two brothers and, in the surrender of his interest in the 774 shares to his brothers as set forth above, they acquired an advantage. Thereupon it became defendants’ burden to go forward with their proofs and to affirmatively prove by explicit and convincing evidence, that no deception was practiced in the issuance of the several certificates, that no undue influence was used, and that the transaction was fair, open, voluntary and well understood.

There is no testimony here tending to establish that the 1968 transactions satisfied the foregoing criteria. The crucial stock certificates were endorsed September 19, 1968. On the day before, September 18, 1968, the decedent had executed and published a codicil to his will. This Will was prepared by the attorney who tried the case on behalf of the defendants below. It is possible that the same person drew the certificates the day after the codicil was executed. The attorney was present in court at the trial below and he might have been a material witness as to the circumstances relevant to the criteria of In re Dodge, set forth above. Further, the testimony of the defendant brothers at the trial could also lead to the inference that none of the three brothers understood the significance of the certificates which actually created a joint tenancy of the 774 shares in the two defendant brothers Julius and Benjamin.

Therefore the court erred in granting the defendants’ motion to dismiss at the end of the plaintiffs’ case, rather than requiring defendants to go forward with their proofs.

■Reversed and remandeed for a new trial.

Collester, P. J. A. D.

(dissenting). I respectfully disagree with the conclusions reached by the majority.

At the close of plaintiffs’ case there was no evidence nor legitimate inferences to be drawn therefrom of an express or implied agreement by defendants to create a trust in one-third of the corporate stock of Metuchen Food Market, Inc. There was no evidence to support the imposition of a constructive trust. There being no such proof the trial judge properly entered a judgment of involuntary dismissal.

In my opinion In re Dodge, 50 N. J. 192 (1967) is in-apposite. This is not a case where defendants were asserting a claim against the decedent’s estate and thus would have the burden of establishing such a claim by clear and convincing proof.

I would affirm.


author: Mintz, J. A. D.

text:
    JOHN SOLOMON, BERTHA SOLOMON AND EUGENE H. SOLOMON, PLAINTIFFS-APPELLANTS, v. CONTINENTAL INSURANCE COMPANY, DITTMAR INSURANCE AGENCY AND ROBERT LUCAS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1972
    Decided December 29, 1972.

      Before Judges Lewis, Oakton and Mintz.

      Mr. Bernard F. Boglioli argued the cause for appellants.

      Mr. Marshall Selikoff argued the cause for respondent Continental Insurance Company (Messrs. Lane, Evans & Selikoff, attorneys).

      Mr. Leonard Rosenstein argued the cause for respondent Dittmar Insurance Agency (Messrs. Feuersiein, Sachs & Maitlin, attorneys).

      Mr. Benjamin Edelstein filed a statement in lieu of brief for respondent Robert Lucas.
   The opinion of the Court was delivered by

Mintz, J. A. D.

In this declaratory judgment proceeding plaintiffs sought an adjudication of coverage under a homeowners’ policy “Broad Eorm” issued by defendant Continental Insurance Company (Continental) to John Solomon and Bertha Solomon. Plaintiffs asserted additional claims of equitable estoppel to deny coverage, and reformation, if necessary, of the policy so as to provide coverage, indemnification by Continental for any loss they might sustain through the negligence of Continental’s agent, Dittmar Insurance Agency (Dittmar), and indemnification from Dittmar for any loss sustained because of Dittmar’s negligence in obtaining the insurance coverage requested by plaintiffs.

Following a nonjury trial the judge found adversely to plaintiffs on all issues. Post-trial motions were made and denied. This appeal ensued.

In 1938 plaintiffs John and Bertha Solomon purchased property located in Howell Township consisting of 16% acres on which was situated a dwelling, a chicken coop and a hatchery. They used the dwelling for their residence and engaged in chicken farming until 1956. After that, plaintiffs raised corn on the property until 1963 or 1964. Thereafter the property was used by them for residential purposes only.

Plaintiff Eugene Solomon is the son of plaintiffs John and Bertha. He lived on the premises until July 1967, at which time he married and established a separate residence. In 1964, while residing on the premises, Eugene started a gun shop. His gunsmithing activities were conducted in a portion of one of the buildings that was formerly used as a chicken hatchery. This activity began as a hobby. However, in 1967 he grossed approximately $50,000 a year, and netted about $2000 that year from this gunsmithing business, which included the sale of guns, ammunition and shooting clothing. Pie attributed the small profit margin to the fact that he did most of his dealings with friends and acquaintances. It should be noted that Eugene also had full-time employment elsewhere. Eugene further testified that he had business cards, and stationery with a business letterhead on it — “E. 1L Solomon and Shooter Supplies” — but that this stationery was used to procure orders from distributors. He did not otherwise advertise.

On November 12, 1967, four months after Eugene had changed his residence, a fire broke out in the building where Eugene carried on his gunsmithing activities. Eobert Lucas was a volunteer firearm fighting the fire. He allegedly was injured as a result of a gunpowder explosion, and filed suit against all plaintiffs seeking recovery for said injuries. This declaratory judgment proceeding was initiated upon Continental’s refusal to defend the Solomons in the Lucas litigation.

Originally, plaintiffs John and Bertha Solomon did their insurance business with the Butcher Agency, which was taken over by defendant Dittmar. In 1963 Dittmar, as agent for Eidelity-Phoenix Insurance Company, issued to plaintiffs a homeowners’ policy “at the suggestion” of Mr. Dittmar, a corporate officer of Dittmar.

The policy was to expire on October 11, 1966. Prior to that date Mr. and Mrs. Solomon received a letter from Dittmar pointing out that the old policy was about to expire and suggesting increased coverage. Mrs. Solomon visited Dittmar to discuss the renewal. She testified that upon arriving at the agency she was referred by Mr. Dittmar to an unidentified girl who made no other inquiry than “how many rooms are there?” and then stated that “we’ll take care of everything; we’ll send you the policy. You’re insured for all.” Significantly, Continental does not allege any misrepresentation by Mrs. Solomon or her husband in the procurement of the policy.

In due course the Continental homeowners’ policy was issued, to run from October 11, 1966 to October 11, 1969. The pertinent provisions of the policy were as follows:

General Conditions.
2. Definitions:
(a) Insured: Tlie unqualified word “Insured” includes (1) the Named Insured and (2) if residents of his household, his spouse, the relatives of either and any other person under the age of twenty-one in the care of an insured * * *.
(b) Premises: Means the premises described in the Declarations, including grounds, garages, stables and other outbuildings incidental thereto, and private approaches thereto.
* S’ *
Insuring Agreements.
(1) Coverage E — Personal Liability:
(a) Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient,.
5. Supplementary Definitions:
(a) * * *
(b) * *
(c) Promises: For purposes of Section II, the definition of “premises” appearing in the Basie Policy shall include: (1) all premises where the Named Insured or his spouse maintains a residence and includes private approaches thereto and other premises and private approaches thereto for use in connection with said residence except business property and farms, * fr *. [emphasis added]
(d) “Business property” includes (1) property on which a business is conducted, * * *.

Eased primarily on the above provisions, the trial judge ruled that plaintiffs Mr. and Mrs. Solomon were not insured by Continental because the incident occurred on business property, which was specifically excluded from the coverage; that Eugene was not covered because of the above reason and also because he was not a "resident” at the time of the fire, and that Dittmar was not liable in negligence for failing to properly insure plaintiffs. Additionally, the trial judge in ihe course of his opinion alluded to the special exclusionary provision (a) (1) applicable to Section II. In the pretrial order dated August 3, 1971 Continental based its defense upon the definitions sot forth in Section II, Item ñ(c) and (d), and denied that Eugene was an insured under the policy. It also reserved the right to roly upon such portions of the, policy referred to under "Exclusions” as might he deemed applicable. However, if additional sections of the policy other than those to which we have alluded were to be relied upon, Continental was required to inform all parties by letter prior to trial. It never did.

On January 3, 1968 Continental wrote the named insureds that there was no coverage afforded them with respect to the Lucas claim. On October 23, 1968 Continental wrote to a law firm that apparently had initially represented the Solomons that there was no coverage for the allegations set forth in the Lucas complaint, relying upon Section II, Items 5 (c) and (d). The letter further indicated that Eugene Solomon was not an insured, as that term is defined in the insurance policy.

We agree with the trial judge’s determination that Eugene was not covered. He was not a named insured and he was not a resident of the insureds’ household at the time of the fire, as required under the definition of “Insured” in the policy. Continental owes no contractual duty to Eugene. James v. Federal Insurance Co., 5 N. J. 21, 24 (1950); American Legion Hosp. v. St. Paul Fire Ins. Co., 106 N. J. Super. 393, 397 (App. Div. 1969).

As already noted, the trial judge referred to a special exclusionary clause (a) (1), applicable to Section II, which purports to exclude any business pursuits of an insured. Suffice it to say that we deem this exclusionary clause inapplicable. The named insureds were definitely not engaged in any business pursuits. They did not participate in Eugene’s gunsmithing activity. Additionally, as already observed, we have found Eugene not to be an insured. Furthermore, we note that this exclusionary clause was never raised as a defense by Continental at the trial or on this appeal.

On the first sheet of the policy captioned “Declarations” there is a paragraph entitled “Descriptive Data.” The dwelling is therein described as “frame.” That paragraph also includes the following statement: “Section II Only: (a) The described premises are the only premises where the Named Insured or spouse maintains a residence other than business property and farms, * * The significance, if any, of this statement is difficult to comprehend.

Section I covers the insured against loss to the property due to fire, lightning, windstorm, explosion, vandalism, etc. The dwelling is insured for $15,000 and the appurtenant private structures for $1500. The term “appurtenant private structures” is defined in an attached rider. Under Section IT, which covers the insureds against personal liability for accidental injuries to other pers'ons, that term is not defined.

The trial judge was of the opinion that the hatchery building in which the gunshop operation was conducted was an “outbuilding” coming within the general definition of “premises” insofar as Section I fire insurance coverage is concerned, and that “The Company makes no quibble in that regard.” However, the trial judge ruled that the definition of “premises” under Section II, covering personal liability coverage, was different. The definition of “premises” under “General Conditions” 2(b) in the basic policy, and the “Supplementary Definitions” 5(e) and (d) which are contained in a four-page complicated rider, attached and made a part of the basic policy, at best create an ambiguity. Doubts as to the existence of coverage must be resolved in favor of the insured. Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504 (1965). The “General Conditions” appear in the middle of a sheet entitled “OTHER PROVISIONS APPLICABLE TO SECTIONS I AND II EXCEPT AS OTHERWISE INDICATED.” The ordinary person reading the basic policy could easily conclude that the definition of “premises” therein contained in 2(b) applied to Section II, and would not look for a “supplemental definition” of “premises” contained in the attached complex rider.

The average layman who receives a “broad form” of a homeowners’ policy would normally expect personal liability coverage for accidental injuries suffered on his property. He has a right to rely upon reasonable anticipated coverage and should not be subject to hidden pitfalls. American Policyholders’ Ins. Co. v. McClinton, 100 N. J. Super. 169 (Ch. Div. 1968). As already noted, we perceive no exclusionary clause applicable to the named insureds. In fairness to the policyholders, exclusions must be “so prominently placed and so clearly phrased that die who runs can read’. ” Bau man v. Royal Indem. Co., 36 N. J. 12, 21 (1961); Gerhardt v. Continental Cos., 48 N. J. 291 (1966). Any exclusionary or limiting provision conceived by reading collectively various clauses scattered throughout the basic policy, and the attached rider, would not bar plaintiffs from claiming the coverage they reasonably anticipated.

Insurance policies are complex contracts of adhesion, prepared by the insurance company, not subject to negotiation and unintelligible to the average person were he to attempt to read and understand their unfamiliar and technical language, and awkward and unclear arrangement. Hence we recognize the justifiable reliance by the purchaser on the agent’s knowledge and representation. Average purchasers of insurance are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. If the named insureds, contrary to their expectations, were to receive insurance coverage only on the dwelling and certain unidentified portions of the tract of land, and not on the “outbuildings,” that fact should have been clearly indicated to them by an unmistakable prominently placed provision in the policy. Also, if it was intended that there be different coverage as to the structures with respect to fire insurance and liability insurance that fact should have clearly appeared in the policy.

It is the insurer’s burden to obtain, through its representatives all information pertinent to the risk, and to make exclusionary provisions plain, clear and prominent to the layman. Harr v. Allstate Ins. Co., 54 N. J. 287, 303, 304 (1969). This obligation on the part of the insurer was recognized by John H. Luland, senior underwriter of Continental’s homeowners’ personal lines. On cross-examination he frankly admitted that he expected their agents to ask certain questions of the insured important to the risk, and one of those “important” questions would be the use of the premises in order to determine whether to reject the risk, perhaps increase the coverage so that the insured would get what he anticipated, and to ascertain if he might be ineligible for homeowner’s coverage.

In the instant case we have the unrefuted testimony respecting the visit of Mrs. Solomon to the Dittmar Agency; she was referred to a girl in the office who merely inquired as to the number of rooms in the dwelling, and the girl assured Mrs. Solomon that they were “insured for all.” Under these facts equitable estoppel possibly could be invoked to bar a defense of noncoverage. We are mindful of the fact that Continental may be saddled with coverage it would have declined. Yet this result is of its own making because of the failure of its agent to make inquiry with respect to the use of a portion of the former chicken hatchery building, and the affirmative representation of the unidentified girl in the office. The fact that the insurer has received no premium for the risk from which the loss ensued is no obstacle. Any additional premiums can be charged against the named insureds. Harr, supra, at 307.

In passing we note our disagreement with the trial judge’s determination that the unrefuted testimony concerning the unidentified girl in the Dittmar Agency constituted inadmissible hearsay. In Harr, supra, the agent’s statement to the insured that he was “fully covered” was deemed admissible. See also Evidence Rules 63(8) (a) and 63(9) (a); Noberco Co. v. Ferro Trucking, Inc., 107 N. J. Super. 394 (App. Div. 1969); and see Irianne v. Diamond T of Hudson Co., Inc., 94 N. J. Super. 148 (App. Div. 1967), with respect to testimony of an unidentified agent.

While we have considered the doctrine of equitable estoppel as possibly applicable to defeat the insurer’s claim of noncoverage, we predicate our conclusion on the premise that the named insureds are afforded coverage under the policy, since the definitions relied upon to deny coverage are at best ambiguous and there is no clearly effective exclusionary clause denying personal liability coverage to the named insureds on their premises predominantly residential in character. The incidental business use of the outbuilding by Eugene was not incompatible with the use of the property as a residence.

The judgment in favor of Continental against plaintiffs John Solomon and Bertha Solomon is reversed, and affirmed as to plaintiff Eugene Solomon. The judgment in favor of Dittmar against plaintiffs is affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. KARL TILLMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1972
    Decided January 5, 1973.

      Before Judges Carton, Mintz and Meanor.

      Mr. Edward J. Dimon, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. VanNess, Public Defender, attorney).

      Mr. Eugene H. Farter, Assistant Prosecutor, argued the cause for respondent (Mr. Geoffrey Gaulkin, Hudson County Prosecutor, attorney; Mr. Edwin H. Stern, First Assistant Prosecutor, of counsel; Mr. Harvey S. Werblowsky, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Carton, P. J. A. D.

Defendant was convicted on charges of armed robbery of one Bennett and one Narkiewicz. His principal contention on appeal and the only one in which we find merit is that the trial court committed reversible error in denying his motion for mistrial on the ground that there had been a violation of the trial court’s sequestration order.

The general rule is that the determination whether to grant an order of sequestration in a criminal trial rests in the discretion of the trial judge. See 6 Wigmore, Evidence, (3d ed. 1940), § 1837 et seq.; Annotation, “Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state’s witnesses in criminal case,” 32 A. L. R. 2d 358 (1953). The same rule has been held to apply as to remedial action which should be taken by the trial judge when it appears the order has been violated. See Annotation. “Effect of witness’s violation of order of exclusion,” 14 A. L. R. 3d 16 (1967); 53 Am. Jur., Trial, § 33 at 48 (1945).

The appellate courts of this State have carefully circumscribed the exercise of the trial court’s discretion with respect to the procedure to be followed where there has been a timely application for sequestration. They have not hesitated to order a new trial regardless of whether actual prejudice was demonstrable where such motion for sequestration has been arbitrarily denied. State v. Duffen, 104 N. J. Super. 302, 303 (App. Div. 1969). Cf. State in the Interest of W. O., 100 N. J. Super. 358, 363 (App. Div. 1968); State v. Hines, 109 N. J. Super. 298, 307 (App. Div. 1970), certif. den. 56 N. J. 248 (1970), cert. den. 400 U. S. 867, 91 S. Ct. 108, 27 L. Ed. 2d 106 (1970).

The reason for such a mandatory rule is that a showing of prejudice “would be virtually impossible to make, for no one can tell how the later witnesses’ testimony might have differed had the motion been allowed.” State v. DiModica, 40 N. J. 404, 413 (1963).

A somewhat different approach has been adopted where the court has granted sequestration but the sequestration order has been violated. In that situation we think the rule should properly be that in the absence of prejudice to defendant, such a violation does not constitute reversible error. State v. Smith, 55 N. J. 476, 485 (1969), cert. den. 400 U. S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); State v. Michalis, 99 N. J. L. 31, 34 (Sup. Ct. 1923). See State v. Williams, 29 N. J. 27, 46-47 (1959), where it is suggested that fault on the part of the State may be a factor to be considered.

A mistrial is a drastic remedy. Such a remedy should be resorted to only where manifest injustice would otherwise result. State v. DiRienzo, 53 N. J. 360, 383 (1969). For instance, in State v. Smith, supra, where two State witnesses spoke generally to one another and disregarded the sequestration order, a mistrial was denied. The court noted that the motion was untimely made; that there had been no fault on the part of the State, and no showing of prejudice to defendant.

It remains to apply these principles to the facts in this case. At the request of defense counsel, the witnesses for both sides were ordered sequestered. The trial judge explained the order in this fashion:

That means each witness will be called in to testify and no other witness will be in court listening to any of the other witnesses testifying- as they do testify.

One of the victims, Bennett, was the first to testify before the jury. After briefly describing the robbery and events leading up to it, his testimony and that of the other victim, Narkiewicz, was then taken on voir dire because the identification of defendant was in issue. Bennett testified first on the voir dire. When his testimony was concluded, the trial judge directed in clear terms that this witness was not to talk to any witness as to what had occurred “nor or during the course of the trial when you’re called before the jury. You’re not to discuss it with William Narkiewicz or anybody else; do you know that?” Bennett responded in the affirmative. Parenthetically, we observe that it would have been preferable if the trial judge had made the admonition applicable to all witnesses.

Narkiewicz then testified on voir dire. His testimony was interrupted by a lunch recess. After the recess, defense counsel inquired of him whether he had discussed his morning testimony with anyone. He acknowledged that he had spoken with the prosecutor and that Bennett, as well as the arresting officer and two other persons whose identity was unknown to him, were present. Although stating that he and the prosecutor did not directly discuss his morning testimony, he related that they were “laying the facts on the line.” He added that there had been some discussion, although “very little,” concerning defense counsel’s morning cross-examination of him. Thereupon defense counsel moved for a mistrial.

The prosecutor represented that Harkiewicz had not discussed his testimony with Bennett, but that he, the prosecutor, had gone over the facts of the case and the police report with Narkiewicz in the presence of Bennett, the arresting officer, his investigator, his assistant, and another witness who was to testify the next day. When the testimony continued before the jury, Bennett stated that during the lunch recess he and Narkiewicz discussed the case with the prosecutor but not directly with each other.

The prosecutor’s explanation for his action was that he thought he had the right to do so and that he was not limited in talking to his witnesses. The court concluded that although the order had been violated the situation did not warrant a mistrial.

Here there was a clear violation of the sequestration order and fault on the part of the State. There was also a real potential of prejudice to defendant. The defense was that he was not involved in the mugging and the crucial issue was the identity of defendant as a participant in the crime. In this connection, we note that neither Bennett nor Narkiewicz was able to identify defendant as one of the robbers at his first confrontation with defendant. Bennett identified defendant for the first time at the preliminary hearing. Uarkiewicz was unable to identify defendant as his assailant about 10 or 15 minutes after the mugging. As a result Tillman was released by the police. Later that night, while riding in a police ear, he saw defendant and said: “That’s the man.” This later confrontation and identification occurred, however, only after he was informed that his friend Bennett’s identification card was found in the rear seat of the police car where defendant alone had been.

What occurred here went far beyond a simple interview of witnesses. Even if the witnesses did not speak directly to one another, but merely listened to the prosecutor and the witness who had testified first Raying the-facts on the line,” the necessary effect was to violate both the letter and the spirit of the sequestration order. Witnesses testifying after such a conference could well be influenced by what they had heard concerning the earlier testimony. This is so even though the violation occurred after Bennett had completed his testimony and Narkiewicz had testified at some length on the voir dire.

Tinder all the circumstances evidenced by the record, particularly in light of the sharp dispute on the issue of identity, and the absence of any remedial procedures taken by the court to mitigate the prejudicial effect of the violation of the sequestration order, we are of the opinion that a new trial must be granted.

The prosecutor’s desire to interview his witnesses does not excuse the violation of the order. That could be readily accomplished by interviewing the witnesses out of the presence of each other.

Inasmuch as there appears to be no established method for handling situations of this kind, the following procedure is suggested: In any case when a violation of a sequestration order has been brought to the attention of the trial judge, he should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of such violation. Pie should thereupon determine what remedial action is required, if any, in the light of all the circumstances. In the extraordinary ease “where it appears there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated” (and consequently prejudice cannot be dissipated by other remedial action), the court may grant a mistrial. See United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971), quoting United States v. Perez, 22 U. S. (9 Wheat) 579, 6 L. Ed. 165 (1824). Under extraordinary circumstances also, the exact nature of which we need not determine here, consideration may be given to the alternative possibility of excluding the testimony of the offending witness. A caveat must be entered here as to the appropriateness of this remedy in a criminal case as affecting the defendant’s constitutional right to a fair trial. See Annotation, supra, 14 A. L. R. 3d at 54. See also State v. Michalis, supra, and State v. Williams, supra, where it was held that the violation of an order of sequestration by a witness could not deprive the State of the benefit of its witness’ testimony where the State was without fault.

Where it does not clearly appear that the violation of the sequestration order possesses a potential for prejudice, a less drastic remedy appears to be proper. The court may, in its discretion, also call the disobedience of the order to the attention of the jury as bearing on the credibility of the witnesses involved. Other jurisdictions have held or recognized that this is a fair and sensible rule. See Annotation, supra, 14 A. L. R. 3d at 111-114. In such case the parties may interrogate the witnesses as to what occurred and may comment thereon in their summations. We are also of the opinion that upon the retrial of a case where a mistrial has been granted because of such a violation a similar procedure should ordinarily be followed.

Any remedial procedure of this kind employed to insure the right of a fair trial does not, of course, preclude the use of the contempt process where the court’s order has been willfully violated by any party or his witnesses.

Reversed and remanded for a new trial.


author: Per Ctjriam:.

text:
    FELIX DANIELLO, PETITIONER-RESPONDENT, v. MACHISE EXPRESS CO., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 15, 1973
    Decided January 26, 1973.

      Before Judges Collester, Leonard and Halpern.

      Messrs. Freeman & Spence, attorneys for appellant; Mr. William P. Freeman, on the brief).

      Messrs. Gurdo, Donio & DeMarco, attorneys for respondent (Mr. Piarle A. DeMarco, on the brief).
   Per Ctjriam:.

In this workmen’s compensation case, the employer appeals from a judgment entered by the County Court which adjudicated that the injuries sustained by petitioner in the accident of September 16, 1969 were compensable and which reversed the dismissal of his claim petition by the Division.

We affirm essentially for the reasons stated by Judge Horn in his written opinion as reported in 119 N. J. Super. 20 (Law Div. 1972).


author: Hartman, J. C. C.,

text:
    MARIE SCHUMM, PLAINTIFF, v. RICHARD MICHAEL SCHUMM, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 10, 1973.

      Mr. Bernard J. Berry, Jr., for defendant (Messrs. Riker, Danzig, Scherer & Brown, attorneys).

      Mr. Michael D. Mark, for plaintiff (Messrs. Skoloff and Wolfe, attorneys).
   Hartman, J. C. C.,

Temporarily Assigned. Defendant moves to have vacated from a 1963 divorce decree of this court a provision therein for support of his oldest son who has arrived at age 18, contending that recent legislation makes every person 18 or more years of age an adult; that his son is resultingly emancipated within the legal interpretation of that term in husband and wife agreements and divoree judgments, and that therefore his obligation to support that son has terminated. I do not agree.

Briefly summarizing the facts that clearly appear from the affidavits submitted and the testimony taken in open court: after a marriage of 12 years, the wife was granted a divorce in 1963. By written agreement a provision for support was approved, calling for the husband to pay $25 a week for each of two minor children and providing for the termination of child support upon emancipation. On March 26, 1972 the oldest boy attained his 18th birthday. He was a senior in high school at the time. He graduated in June 1972, continues to live with his mother and now attends Union College in Cranford, New Jersey.

In July 1972 defendant discontinued the boy’s support payments, claiming he was no longer obliged to do so. In September of that year the mother filed her motion to adjudicate his arrears and to require him to continue'■the support while the boy attends college. The father then filed a crossmotion which, among other things, sought to terminate the boy’s support;

The proofs establish that the father has remarried and has two minor children of that union. His ability to provide for his family and to pay alimony and the child support under the divorce decree are demonstrated by the proofs and by his continued faithful performance of the provisions of the original agreement except for his claim here. The mother, on the other hand, has a job whose income, in addition to the alimony and support payments, has enabled her not without difficulty to maintain her home and raise the two children in her custody. Whatever savings she had has been exhausted in living expenses. There is no room for luxuries. She presently has no savings or assets other than the home and an automobile on which payments are still due.

The boy has apparently shown aptitude for college and was accepted. It is a local college, which enables him to remain at home. He worked this past summer hut did not earn enough to pay the rather modest cost of tuition. The father cannot afford to contribute to his college expenses, nor can the mother. It should be noted that she has not asked for a contribution to the costs of college but seeks only the continuance of the support. Her willingness to tighten her belt in trying to keep the boy in college is commendable.

The modern trend is toward greater education. “Our courts have recognized this trend by including the expenses of a college education as part of child support where the child shows scholastic aptitude and the parents are well able to afford it.” Khalaf v. Khalaf, 58 N. J. 63 (1971), and cases cited therein.

A child who shows aptitude for college should be encouraged in that direction. Here the mother is doing just that. The father cannot afford college expense and he is not being called on to pay for it. In these circumstances it seems only fair and equitable for the support provision to continue while the boy is attending college.

It remains to consider the recent legislation which extends to 18-year-olds basic civil and contractual rights and obligations which were, before the effective date of the act, applicable only to persons who were 21 or older. The act supplements Title 9 of the Revised Statutes. L. 1972, c. 81, N. J. S. A. 9 :17R-1 to 3. Defendant contends that by reason of the act the boy is emancipated.

Emancipation is the “act by which one who was unfree, or under the power and control of another, is rendered free, or set at liberty and made his own master.” “The term is principally used with reference to the emancipation of a minor child by its parents, which involves an entire surrender of the right to the care, custody and earnings of such child as well as a renunciation of parental duties.” Black’s Law Dictionary (4th ed. 1951), 613. “Emancipation in its general sense signifies a surrender and renunciation of the correlative rights and duties touching the care, custody and earnings of the child.” Cafaro v. Cafaro, 118 N. J. L. 123 (E. & A. 1936); Limpert v. Limpert, 119 N. J. Super. 438 (App. Div. 1972).

It has been frequently, and erroneously, argued before me that when a child reaches the age of majority he is immediately emancipated. This is not the law. There is no fixed age in the law when emancipation occurs. Straver v. Straver, 26 N. J. Misc. 218, 222 (Ch. 1948); Limpert v. Limpert, supra.

In its simplest terms, the present act concerning minors deems every person 18 or more years of age to be an adult, just as prior law deemed persons 21 or more years of age to be adults. The present law merely accelerates the age of adulthood, granting 18-years-olds the civil and contractual rights and obligations which theretofore applied to those who attained 21 years of age.

Prior law is settled that there existed a presumption against emancipation prior to 21, and the burden of rebutting that presumption by competent evidence was cast upon the one who asserted it. When a person reached 21 emancipation was not automatic. It was prima facie evidence of “but not necessarily emancipation.” Straver v. Straver, supra. Applying former precedents, the same presumptions that existed before the present act became effective — January 1, 1973 — continue to be operative, except that the theories now apply to 18-year-olds instead of those 21.

It is the responsibility of the custodian of a child to supervise his. care, control, maintenance and education. Such custodian has the right to determine the kind of education which is suitable for the child so entrusted to its care. Where there is insufficient money available from either parent to afford college expenses but the custodian and the child are wiling to work toward providing a better education for him, even though the cost of education may not be assessed against the father, this court is invested with the power and authority to continue the father’s obligation to support the child while he pursues that college education. This is the rationale of Straver v. Straver and Limpert v. Limpert, supra.

Defendant’s motion to vacate the pending support provision is therefore dismissed.


author: Francis, J. S. C.

text:
    DOLORES I. MOONEY, PLAINTIFF, v. BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY, AND JOHN XANTHOPOULOS, COUNTY TREASURER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 8, 1973.

      Mr. Morgan Thomas, for plaintiff.

      Mr. Gerald Weinstein, Atlantic County solicitor, for defendants.
   Francis, J. S. C.

This is an action in lieu of prerogative writs wherein the original complaint challenged the creation of the position of assistant commissioner of registration within the county board of elections. The complaint was amended by adding a supplement wherein plaintiff challenged the actions of the board of freeholders in the creation by resolution of the office of superintendent of elections for Atlantic County.

The matters set forth in the original complaint have been disposed of, leaving as the sole issue to be determined the constitutionality of N. J. 8. A. 19 :32-26, which purports to authorize the appointment of a superintendent of elections in certain counties.

The most recent amendment to the above statute became effective May 20, 1971. The pertinent portion of the statute is as follows:

In any county of the second class, other than those having a population between 275,000 and 325,000 and other than those having a population between 350,000 and 400,000 according to the 1950 Census, and in any county of the fifth class having a population in excess of 200,000 according to the 1950 Census, or less than 200,000 according to the 1970 Census, the board of chosen freeholders may establish, by resolution, the office of superintendent of elections for the county, and said office when once established shall not be altered or abolished.

The following table, compiled from statistics of the United States Census Bureau, shows the population of certain extracted counties of New Jersey as related to their class, for the census years 1950 and 1970:

Second-Class Counties
(200,000-600,000 1970 Census 1950 Census
Middlesex 583,813 264)872
Union 543,116 398,138
Bassaic 460,783 337,094
Camden 456,291 300,743
Morris 383,454
Burlington 323,132 135,910
Mercer 303,968 229,781
Fifth-Class Counties
(over 100,000 on
Atlantic Ocean)
Monmouth 461,849 225,327
Ocean 208,470
Atlantic 175,043 132,399
Sixth-Class Counlies
(under 100,000 on
Atlantic Ocean)
Cape May 59,554 37,131
Ocean 56,622

It is apparent that Atlantic Comity comes within the amended statute since it complies with that portion of the statute which lends qualification to a county with “less than 200,000 according to the 1970 Census.”

Constitutionally, the statute as amended is condemned as special legislation, violative of N. J. Const. (1947), Art. IV, § VII: “No general law shall embrace any provision of a private, special or local character.”

An examination of population classifications, supra, in relation to the statute in question indicates that within the fifth-class county classification Monmouth and Atlantic would qualify while Ocean County is forever excluded. In the second-class counties, since the population figures are locked to the 1950 Census, there is a permanent exclusion of Union and Camden Counties. Finally, the sixth-class counties, should they ever become fifth-class counties, could not qualify under the statute.

Plaintiff produced evidence of the population figures of the various counties of the State, relying upon argument addressed to those figures and the relationship of the statute to them. Defendant likewise relied upon oral argument rather than testimony. The essence of plaintiff’s argument is that the determining factor is what is excluded under the act rather than what is included. Plaintiff cited Harvey v. Essex Cty. Board of Chosen Freeholders, 30 N. J. 381 (1959) :

In deciding whether an act is general or special, it is what is excluded that is the determining factor and not what is included. Budd v. Hancock, 66 N. J. L. 133, 135-136 (Sup. Ct. 1901). If no one is excluded who should be encompassed, the law is general. Another requirement of a general law is that it must affect equally all of a group who, bearing in mind the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. In Van Riper v. Parsons, 40 N. J. L. 1, 9 (Sup. Ct. 1878) the court pointed out that local and special laws rest on a false or deficient classification in that “their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.” See also City of Passaic v. Consolidated Police, etc., Pension Fund Commission, 18 N. J. 137, 146 (1955) ; Sherwood v. Bergen-Hackensack, etc., Authority, 24 N. J. Misc. 48, 53-54 (Sup. Ct. 1946). With this distinction between a special and a general law in mind, the question is whether any appropriate person is excluded to which the law, but for its limitations, would apply. Koons v. Board of Com’rs of Atlantic City, 134 N. J. L. 329, 333 (Sup. Ct. 1946), affirmed per curiam 135 N. J. L. 204 (E. & A. 1947) ; In re Freygang, 46 N. J. Super. 14, 23 (App. Div. 1957), affirmed, 25 N. J. 357 (1957). [at 389]

There is no question as to the exclusion in fifth-class counties of the County of Ocean, and that for all time. The question is whether the exclusion of Ocean County is an arbitrary separation of some persons or places or things from others, upon which, but for such limitations the statute would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. Budd v. Hancock, supra. We are concerned with the appropriateness of the exclusion or, stated another way, whether the legislation encompasses all the subjects which reasonably belong within the classification and does not exclude any which naturally belong therein.

As the court indicated, there was a paucity of testimony in the matter, at least insofar as supplying a basis upon which Ocean County in the fifth-class category, or Camden and Union Counties in the second-class category, should have been excluded. There was certainly no testimony which indicated any history of election difficulties unique to the counties included. Counsel for the board of freeholders argued that judicial notice could be taken of recent election irregularities alleged to have occurred in Atlantic County. Whatever the degree and kind of irregularities that did occur, they bore no relationship to the legislative purpose of the statute vis a vis the situation in Ocean County or in any other county of like population classification.

Defendant cites McDonald v. Hudson Cty. Board of Freeholders, 98 N. J. L. 386 (Sup. Ct. 1922), aff’d 99 N. J. L. 393 (E. & A. 1923), and Meredith v. Mercer Cty. Board of Chosen Freeholders, 117 N. J. Super. 379 (Law Div. 1970), aff’d 117 N. J. Super. 368 (App. Div. 1971) aff’d 59 N. J. 530 (1971). The court upheld the constitutionality of an earlier version of the same statute by attributing public concern on a state-wide basis as to the purity of the electoral process in heavily populated areas. The rationale is to be found in the unique size of the populations in those counties and a concern for a vote in those counties which would have a state-wide effect. The exclusion in that instance was warranted.

Meredith, supra, does not embrace the present proposition within its holding, nor was there any dicta or peripheral authority to be gleaned from that decision.

It is not necessary to consider the other grounds raised by plaintiff since the New Jersey Constitution is prohibitory of such legislation.

Order accordingly.