author: Mintz, J. S. C.

text:
    RAYMOND F. MALE, COMMISSIONER, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, PLAINTIFF, v. POMPTON LAKES BOROUGH MUNICIPAL UTILITIES AUTHORITY AND MAPLE CONTRACTORS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 18, 1969.

      Mr. Andrew A. Valeriani, Jr., Deputy Attorney General, for plaintiff (Mr. Arthur J. Sills, Attorney General of the State of New Jersey).

      Mr. William F. Johnson for defendant Pompton Lakes Borough Municipal Utilities Authority (Mr. William F. Johnson, Jr. on the brief).

      Mr. William JB. Kaufman for defendant Maple Contractors, Inc. (Messrs. Kaufman & Kaufman, attorneys).

      Mr. Thomas E. Durkin, Jr. submitted a brief on behalf of Local 825, International Union of Operating Engineers, AEL-CIO, amicus curiae.

   Mintz, J. S. C.

This is an action brought under the New Jersey Prevailing Wage Act, N. J. S. A. 34:11-56.25 et seq. (Wage Act) by the Commissioner of Labor and Industry of New Jersey as trustee for aggrieved employees on a public works project. The action is in two counts. The first count is against Maple Contractors, Inc., a corporation of New Jersey (Maple), for an order (1) compelling Maple to produce its books and records in accordance with the requirements of N. J. S. A. 34:11-56.31; (2) imposing the statutory penalty of $500 under N. J. S. A. 34:11-56.35 for Maple’s alleged willful refusal to furnish its payroll records, and (3) directing Maple to remit to plaintiff as trustee an amount of money representing the difference between the amounts actually paid to the workmen on the public works project and compensation that should have been paid under the Wage Act.

The second count is against Pompton Lakes Borough Municipal Authority (Authority) for its failure to include the prevailing wage rates in its contract with Maple, as required by N. J. S. A. 34 :11-56.28. Under that section of the Wage Act the Authority has the responsibility to specify in its agreement with the contractor the prevailing wage rate in the locality for each craft or trade or classification of all workmen involved in the project.

“ ‘Prevailing wage’ means the wage rate paid by virtue of collective bargaining agreements by employers employing a majority of workmen of that craft or trade subject to said collective bargaining agreements, in the locality in which the public -work is done.” N. J. S. A. 34:11-56.26(9).

The Authority’s failure to specify the prevailing wage rate allegedly constitutes a violation of a mandatory requirement of the Wage Act and renders it jointly and severally liable with Maple for the wage deficiencies. Maple cross-claims against the Authority for indemnification.

Pursuant to the Municipal Utilities Authorities Law, N. J. S. A. 40 :14B-1 et seq., the Borough of Pompton Lakes created a municipal utilities authority by ordinance adopted by its municipal council on October 7, 1964. Thereupon the Authority undertook to complete the construction of Stage I of a sanitary sewer system for which the borough had let several contracts in 1963. In 1965 the Authority sought bids on Stage II of the program, but in submitting its contract specifications failed to include the prevailing wage schedule. Maple was the successful bidder, and on June 11, 1965 it executed a contract with the Authority in connection with certain construction for Stage II of the system.

While the job was in progress the Wage and Hour Bureau of the Hew Jersey Department of Labor and Industry endeavored to inspect the payroll records of Maple but without success. The contract has been completed and the employees of Maple, through the Commissioner of Labor and Industry, have instituted the present action.

When the contract was executed, N. J. S. A. 34:11-56.26 (4) defined a “public body” which would be subject to the provisions of the Wage Act as follows:

“ ‘Public body’ means the State of New Jersey, any of its political subdivisions, except municipalities having a population of less than 1/5,000, any authority created by the Legislature of the State of New Jersey and any instrumentality or agency of the State of New Jersey or of any of its political subdivisions.” (Emphasis supplied)

(Subsequent to the execution of the contract in question, the statute was amended (L. 1966, c. 118, § 1) so as to except municipalities having a population of less than 25,-000.) The Borough of Pompton Lakes has a population of about 12,000. The critical question is whether defendant Authority, created by a municipality which is clearly excepted from the mandate of the statute, is likewise excepted.

In Parking Authority of Trenton v. Trenton, 40 N. J. 251 (1963), the parking authority contended that as a political subdivision of the State and as agency and instrumentality of the city, it was exempt from paying the municipal building permit fee. The court, finding no express or implied provision in the Parking Authority Law (N. J. S. A. 40:11.4—1 et seq.) exempting a parking authority from the city’s building code requirements, stated that had the Legislature intended to exempt an authority from municipal building regulations requiring the payment of a fee for a building permit, a provision to that effect could readily have been included in the law. The absence of such a provision leads to the conclusion that the Legislature intended no such exemption to exist. The same view is expressed in Wall v. Hudson County Park Commission, 80 N. J. Super. 312 (App. Div. 1963) where the question arose as to whether a county park commission was exempt from liability for personal injuries resulting from use of public grounds for the reason that it was the agency of the county which was exempt. The court held that the exemption afforded by the statute in question did not extend to the activities of the county park commission. Had the Legislature intended such an exemption, it would have clearly so stated. So in the case at bar, it may be argued that had the Legislature intended to except the Authority from the provisions of the Wage Act, it would have so provided.

Our Wage Act is remedial in nature. N. J. S. A. 34:11-56.25 expressly provides that:

“It is declared to be the public policy of this State to establish a prevailing- wage level for workmen engaged in public works in order to safeguard their efficiency and general well being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to efficiency and well-being.”

The purpose of the Wage Act is to encompass all public works projects other than those specifically excepted. Any exemption from humanitarian and remedial legislation is to be narrowly construed. To extend an exemption beyond those plainly and unmistakably within its term is to abuse the interpretative process and to frustrate the announced will of the people. A. H. Phillips, Inc. v. Walling, 324 U. S. 490, 65 S. Ct. 807, 89 L. Ed. 1095 (1945).

Kohler v. Cobb, 31 N. J. 369 (1960) relied upon by defendants, recognizes that a close relationship exists between the municipality and the sewerage authority. This leads to a clear conclusion that a member of a municipality created sewerage authority holds an office “in” the creator municipality and must take the oath of office as officers of the municipality are required to do. See also Camden County v. Pennsauken Sewerage Authority, 15 N. J. 456 (1954) where the court characterized the sewerage authority, a separate and distinct governmental unit, as the alter ego of the municipality.

In the later cases of Jordan v. Zidel, 40 N. J. 244 (1963), Parking Authority of Trenton v. Trenton, supra, and Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N. J. 227 (1963), the authority was held to be not only an agency of the municipality but also an independent entity distinct and separate from the municipality. In the Broadway National Bank case the court, in construing the relationship between the parking authority and the municipality creating it, said:

“* * * Though a parking authority is an ‘agency and instrumentality’ of the municipality creating it (N. J. S. A. 40:11A-4), and is engaged in a municipal function, it is nevertheless a ‘public body corporate and politic and a political subdivision of the State.’ N. J. S. A. 40:11A-4, 6(1). Such authority is an independent entity distinct and separate from the municipality. * • * It has broad powers derived from its enabling legislation, including the power to issue its own bonds and incur other obligations, to deal with the problem of alleviating traffic congestion by providing off-street parking facilities within its own territorial boundaries, which are coterminous with those of the municipality. N. J. S. A. 40 :11A-6, 8. Indeed, an authority has broader powers in some respects than the municipality which created it, e. g., it is not bound by Chapter 50 of Title 40, which imposes restrictions upon the power of municipalities to enter-into contracts. N. J. S. A. 40 :11A-23 (4).” (at p. 233; citations omitted)

Significantly, the court in the three aforementioned cases recognized the distinction between the office and the officers of an authority, so that upon the effective date of a new plan of government under the Faulkner Act, N. J. S. A. 40 :69A-1 et seq.j the terms of office of commissioners of an authority come to an end but the offices constituting the authority are not abolished.

As already observed, N. J. S. A. 34:11-56.26(4) defines “public body” and excepts therefrom only municipalities having a population under 45,000 (now 25,000). Defendant Authority is a separate body politic and corporate and a political subdivision of the State, with broad independent powers to acquire property, issue bonds and fix rates for its services. Although it is also an agency of the municipality, engaged in discharging local governmental responsibilities for the welfare of the inhabitants of the community, it is subject to the provisions of the Wage Act.

Defendants urge that in any event the Wage Act in question is unconstitutional in that the classification therein provided is violative of Article I of the 1947 New Jersey Constitution and Amendments V and XIV of the United States Constitution. It is contended that there is no rational basis for distinguishing between municipalities on the basis of population. Furthermore, it is asserted that the statute as construed excepts municipalities under 45,000 but leaves the Authority created by such a municipality subject to the Wage Act. Thus, had the municipality entered into the contract with Maple, it would not have been required to specify the prevailing wage rate in the contract, yet the Authority created by that municipality is obliged to do so. Therefore, it is urged that such classification is arbitrary and unreasonable.

Initially, it is to be noted that an act of the Legislature is presumed to be constitutional, the burden of proving the contrary being on that party asserting such legislation to be unconstitutional. David v. Vesta Co., 45 N. J. 301 (1965); Fried v. Kervick, 34 N. J. 68 (1961) ; Clark v. Paul Gray, Inc., 306 U. S. 583, 59 S. Ct. 744, 83 L. Ed. 1001 (1939). The authority to classify and exempt is within the Legislature; it is not an administrative or judicial function. Hotel Suburban System v. Holderman, 42 N. J. Super. 84, 94 (App. Div. 1956). The Legislature may proceed to meet a recognized evil on a step-by-step basis. That the legislative action did not go as far as it might does not invalidate the statute. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 50, 51, 86 S. Ct. 1254, 16 L. Ed. 2d 336 (1966); David v. Vesta Co., supra. The Legislature has a large measure of discretion in selecting the means of accomplishing its goals, and discrimination of degree in the statute will be presumed to rest on a rational basis if there is any conceivable state of facts which could afford a reasonable ground therefor.

In determining the applicability of a statute, population may be a proper basis for classification. McCarthy v. Roberson, 123 N. J. L. 132 (Sup. Ct. 1939). In the instant situation the Legislature presumably deemed it appropriate to handle the problems on a step-by-step basis and to except from the Wage Act only municipalities under the prescribed population. Such classification is constitutional. “The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.” Williamson v. Lee Optical of Oklahoma, 348 U. S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563 (1955).

There is a substantial difference between a municipality and an authority created by the municipality. One of the primary reasons for the creation of a municipal authority is to permit the taxpayers to be relieved from the financial burden connected with the construction and operation of the public facility, and to have the authority bear all of the costs involved in order that they might be liquidated from the revenues received by the authority for the use of the facility. Parking Authority of Trenton v. Trenton, supra.

The Wage Act makes no distinction between authorities created by municipalities. All authorities of every municipality, regardless of population, are subject to the Wage Act. N. J. S. A. 34:11-56.42 provides that:

“If any provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act and the application thereof, to other persons or circumstances shall not be affected thereby.”

Thus, even assuming arguendo, that the classification of municipalities based upon population is arbitrary and unreasonable, such determination could not affect the validity of the Wage Act insofar as it applies to a municipal authority.

N. J. S. A. 34:11-56.28 provides that:

“The public body awarding any contract for public work or otherwise undertaking any public work shall ascertain from the commissioner the prevailing wage rate in the locality in which the public work is to be performed for each craft or trade needed to perforin the contract and shall specify in the contract itself what the prevailing wage rate in the locality is for each craft or trade or classification of all workmen needed to perform the contract during the anticipated term thereof. Nothing in this act however shall prohibit the payment of more than the prevailing wage rate to any workmen employed on a public work.”

Defendant Maple argues that since the iluthority failed to specify in the contract the prevailing wage rate, Maple is not liable under N. J. S. A. 34:11-56.40 in any action instituted by or in behalf of any workman for the recovery of wage deficiencies. In brief, Maple alleges that the specification of the prevailing wage rate in the contract is a condition precedent to the imposition of any liability on it under the Wage Act.

Significantly, the Wage Act affords no relief to the aggrieved workman against the public body. Hence, if Maple’s argument is valid, the workmen are left without relief. I will not attribute to the Legislature a purpose to legislate idly. The probable legislative intent should be given effect. Roman v. Sharper, 53 N. J. 338 (1969). As between the two possible constructions of the statute, the one should be adopted which effectuates rather than defeats the legislative purpose. State Department of Civil Service v. Clark, 15 N. J. 334 (1954). The probable intent of the Legislature is effectuated and the legislative purpose accomplished by holding the contractor, Maple, accountable to plaintiff for the wage deficiencies despite the fact that the prevailing wage rate was not specified in the contract. Moreover, this result is dictated by a provision in the contract. The “General Conditions” of the contract include (at page 39) the following paragraph:

“Bach and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and the contract shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, then upon the application of either party the contract shall forthwith be physically amended to make such insertion.”

While the Wage Act imposes on the Authority no statutory liability to plaintiff for failing to specify the prevailing wage rate in its contract, and none should be implied, I am of the view that Maple is entitled to be indemnified by the Authority for any liability to make payment to plaintiff of such wage deficiencies as may be determined upon an inspection of Maple's books and records.

The contract in question was the subject of public bidding. The proposed contract and specifications submitted to bidders did not contain the prevailing wage rate schedule. Anthony Nardone, president of Maple, testified that he looked for such schedule in the contract. Not having found any, he presumably concluded that the project was not subject to the Wage Act. Maple obviously bid for the job upon the assumption that it would not be required to pay the prevailing wage rate. It was lulled into this position by the failure of the Authority to obey the statutory requirement that it specify in the contract itself the prevailing wage rate in the locality for the craft or trade of all workmen needed to perform the contract. N. J. S. A. 34:11-56.28. It also appears that a field representative of the New Jersey Department of Labor and Industry, Wage and Hour Bureau, talked with the chairman of the Authority on April 28, 1965, at which time he furnished him with certain forms. The Authority was thus alerted to the statutory requirements before the contract was executed but apparently concluded that it was not subject thereto.

As previously observed, the “General Conditions” in the contract provide that if through mistake or otherwise a provision required by law is not inserted, then upon application of either party the contract shall be forthwith amended to make such insertion. Neither the Authority nor Maple applied to amend the contract to include the prevailing wage rate. Maple was free of fault. It relied upon the contract documents submitted by the Authority. The liability imposed upon it to plaintiff is merely an imputed or constructive fault. The ultimate responsibility for the wage deficiencies rests upon the Authority. It failed to comply with the statutory mandate that it specify the prevailing wage rate in the contract. The provision in the “General Conditions” of the contract to which I have alluded will not absolve the Authority from its statutory duty. Had the Authority inserted the prevailing wage rate in the proposed contract submitted to bidders for the work, the contract price probably would have been higher. The Authority should not benefit from its failure to adhere to the statutory mandate. N. J. S. A. 34:11-56.28.

Under all the stated circumstances, Maple is entitled to be indemnified by the Authority against liability for any judgment that may be ultimately rendered against it. Cf. Adler’s Quality Bakery, Inc. v. Gaseteria, Inc., 32 N. J. 55, 79—81 (1960); Hut v. Antonio v. Guth, 95 N. J. Super. 62, 69 (Law Div. 1967) ; Public Service Electric & Gas Co. v. Waldroup, 38 N. J. Super. 419 (App. Div. 1955). The amount of said judgment will be fixed at a hearing before the court after plaintiff has inspected Maple’s books and records pursuant to N. J. S. A. 34:11-56.31.

Finally, plaintiff is not entitled in this proceeding to recover against Maple the statutory penalty of $500 for willful violation of the Wage Act as prescribed in N. J. S. A. 34:11-56.35. This section provides that any employer who violates any provision of the Wage Act “shall be guilty of a misdemeanor and shall, upon conviction therefor, be fined not less than $100.00 nor more than $500.00 or be imprisoned for not less than 10 nor more than 90 days, or by both such fine and imprisonment. * * * ” The penalty imposed by this section is criminal in nature. Grimes are distinguishable from all other public offenses by the fact that indictment by a grand jury is a constitutional prerequisite to punishment therefor, as is trial by jury, unless waived by the defendant. Sawran v. Lennon, 19 N. J. 606 (1955); N. J. Const. 1947, Art. I, pars. 8, 9.


source: Caselaw Access Project

author: Etrtop, J. S. C.

license: Public Domain

text:
    RICHARD GRONQUIST AND CARL H. GRONQUIST, PLAINTIFFS, v. TRANSIT CASUALTY COMPANY, A CORPORATION OF THE STATE OF MISSOURI, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 16, 1969.

      Mr. Robert J. Maloof for plaintiffs (Messrs Hein, Smith, Mooney & Berezin, attorneys).

      Mr. Walter B. Monaghan for defendant (Messrs. Schneider & Morgan, attorneys).
   Etrtop, J. S. C.

At the trial of this case the jury was waived and the matter was submitted to the court on a stipulation of facts and legal arguments. The issue presented is whether a passenger in an automobile is an additional insured under the provisions of the omnibus clause of the owner’s liability insurance policy.

On January 1, 1961 Arthur Chalenski was the owner of an automobile and the insured named in an automobile liability insurance policy issued by defendant. Chalenski, plaintiff Richard Gronquist, and Barbara Sayko attended a party in Westfield. When leaving the party Richard asked for a ride to his home. Chalenski agreed. Chalenski drove. Miss Sayko sat in the right front seat and Richard sat in the rear. In the course of the trip the car struck a telephone pole, injuring Miss Sayko and Richard. In 1962 Miss Sayko and her father instituted an action in this court against both Chalenski and Richard for damages for her injuries. The complaint alleged the negligence of the driver and also alleged that Richard had negligently caused or contributed to causing the accident by leaning over the back of the front seat and putting the weight of his body on the driver, interfering with his driving.

Defendant Transit defended the action on behalf of Chalenski. It was requested to defend Richard as an additional insured under the Chalenski policy but refused to do so. Richard was a minor without means of his own. His father Carl H. Gronquist provided him with a defense of the action. A crossclaim was asserted against Chalenski on Richard’s behalf for his injuries. The jury determined that Chalenski alone had negligently caused the accident. Judgment was entered against Chalenski in favor of Miss Sayko and also in favor of Richard on his erossclaim for $250 and $50 costs. Richard’s legal expenses totalled $2,460.05, paid by his father.

This action seeks to recover the legal expenses incurred in defending Richard. Plaintiffs contend that as a passenger in the automobile in which he was being conveyed to his home Richard was using the automobile with the permission of the named insured, within the meaning of the omnibus clause of defendant’s policy, and was entitled to be provided a defense.

Defendant denies that Richard was using the automobile within the meaning of the policy. It also contends that the acts charged against Richard exceeded the permission granted to him.

The parties have agreed that $2,360.05 is a fair and reasonable sum incurred for defense of the claim against Richard, exclusive of the cost of prosecuting Richard’s affirmative erossclaim.

Under its policy defendant agreed:

“* * * To pay on belialf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
* * *• * * * * *
“* * * defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * *

The omnibus clause defining the word “insured” reads as follows:

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.* * *”

No New Jersey case directly in point has been cited or found. Plaintiffs cite two Louisiana cases to- support their contentions. In Bolton v. North River Ins. Co., 102 So. 2d 544 (La. Ct. App. 1958), certiorari denied (June 27, 1958), it was held that a passenger seated in a standing automobile, who negligently closed the door on the hand of one standing outside the vehicle, was an insured within the meaning of the omnibus clause of the automobile liability policy covering the car. The court said:

“In stating that the defendant would be responsible under the omnibus clause of the policy for the negligent act or acts of the passenger, Don Bolton, which might be established on the trial of the ease as a proximate cause of the injury and damage to plaintiff, we are agreeing with the contention of counsel for plaintiff that Don Bolton at the time was ‘using’ the motor vehicle under the liberal interpretation required of such clauses in an insurance policy, Pullen v. Employers’ Liability Assurance Corp., 230 La. 867, 89 So. 2d 373; Spurlock v. Boyce-Harvey Machinery, Inc., La. App., 90 So. 2d 417, 422. Also 45 C. J. S. Insurance § 829, p. 902, ‘The use contemplate! in a provision for coverage while an automobile is used with the owner’s consent generally is regarded as not limited to physical operation or driving.’ (Emph. Added.) Also Sec. 4316 (e), T Apple-man, ‘Insurance Law and Practice’ pp. 84—85, as supplemented by 1958 pocket part, pg. 25, wherein it states: ‘The term “use” is the general catch-all of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition * * *. A person clearly could he using an automobile without operating it personally. So long as “use” as distinguished from operation, is with permission of the named insured, the insurer is liable for any accident.’ Also Liberty Mutual Ins. Co. v. Steenberg Construction Co., 8 Cir., 1955, 225 F. 2d 294; also the concurring opinion in the case of American Farmers Mutual Automobile Ins. Co. v. Riise, 214 Minn. 6, 8 N. W. 2d 18, 19, decided by the Supreme Court of Minnesota, (at p. 547.)

In Cagle v. Playland Amusement, Inc., 202 So. 2d 396 (La. Ct. App. 1967), it was held that a security guard at an amusement park, who helped the insured to open his locked ear by striking the vent window with his revolver butt, was covered by the owner’s policy for liability for injuries to one struck by a bullet negligently discharged from the gun.

In accord with the above cases are St. Paul Fire & Marine Ins. Co. v. Hartford Acc. & Indem. Co., Cal. App., 51 Cal. Rptr. 301 (Cir. Ct. App. 1966) ; and Industrial Indem. Co. v. Continental Cas. Co., 375 F. 2d 183 (10 Cir. 1967).

Defendant cites Commercial Standard Ins. Co. v. New Amsterdam Casualty Co., 272 Ala. 357, 131 So. 2d 182 (Ala. Sup. Ct. 1961). In that case a nursery employee placing shrubs in a car was held not to have been using the car within the meaning of the owner’s policy when he shut the door on a child’s hand. The court held that the loading had been completed and that the subsequent closing of the door was not a use of the automobile. The tortfeasor was not a passenger in the automobile. However, the case is clearly in conflict with the Cagle case, supra. The Alabama court concentrated on the loading provision of the policy and assumed a nonuse without substantial consideration of the matter. The same result was reached on similar facts in Travelers Ins. Co. v. Safeguard Ins. Co., 346 Mass. 622, 195 N. E. 2d 86 (Mass. Sup. Jud. Ct. 1964) (grocery store employee who closed car door on customer’s fingers was making too remote a “use” of the vehicle to qualify as an additional insured), and Buckeye Union Cas. Co. v. Ill. Nat. Ins. Co., 2 Ohio St. 2d 59, 206 N. E. 2d 209 (Sup. Ct. 1965) (store employee who slammed trunk lid on customer’s head after loading packages was not an additional insured).

In New Jersey the standard omnibus clause here involved is prescribed by the Pinancial Responsibility Law, R. S. 39:6-46(a). Selected Risks Ins. Co. v. Zullo, 48 N. J. 362 (1966). It has been construed to afford very wide coverage. “Using” the automobile is not confined to operation. Coverage extends to a driver granted permission to operate by the use permittee, even if contrary to the instructions of the named insured. When permission to use an automobile has been granted, no deviation from instructions revokes the permission, short of conversion or theft or the like. Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488 (1960); Indemnity Ins. Co. v. Metropolitan Cas. Ins. Co. of New York, 33 N. J. 507 (1960); Small v. Schuncke, 42 N. J. 407 (1964).

In the Indemnity Insurance case Justice Proctor said by way of dictum: “An automobile is being used, for example, by one riding in it although another is driving.” In 45 C. J. S. Insurance § 829, p. 902, it is said that “the ‘use’ of a car has been held to include riding in it by the person to whom permission is given, although the actual driving is done, * * * by another person.” See National Union Fire Ins. Co. of Pittsburgh, Pa. v. Bruecks, 179 Neb. 642, 139 N. W. 2d 821 (Sup. Ct. 1966); Metcalf v. Hartford Acc. & Ind. Co., 176 Neb. 468, 126 N. W. 2d 471 (Sup. Ct. 1964) : Maryland Cas. Co. v. Marshbank, 226 F. 2d 637 (3 Cir. 1955).

In Boswell v. Travelers Indem. Co., 38 N. J. Super. 599, 606-607 (App. Div. 1956), the court listed definitions of the word “using” or “use” in connection with the provisions of an insurance policy. The word has many meanings. But, as the court pointed out, its meaning must be considered with regard to the setting in which it is employed. In the absence of a special meaning indicated by the context, words must be given their ordinary and natural meaning. Wolf v. Home Ins. Co., 100 N. J. Super. 27, at p. 45 (Law Div. 1968), affirmed o.b. 103 N. J. Super. 357 (App. Div. 1968). The common meaning which appears applicable here is “to employ” or “to make use of.” Black’s Law Dictionary (4fh ed.)

In the ordinary meaning of the words it seems evident that one being driven to his home in an automobile is making use of or using the automobile.

In Maryland Cas. Co. v. Marshbank, supra, the court held:

“* * * The fallacy in the plaintiff’s position is that the words ‘use’ and ‘operation’, which it seeks to equate as synonymous, are in this setting words of quite different meaning. For the ‘use’ of an automobile by an individual involves its employment for some purpose or object of the user while its ‘operation’ by him involves his direction and control of its mechanism as its driver for ihe purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another.”

It may he argued that although the words of the policy cover a mere passenger, the intent was to cover only one who has possession of or directs or controls the operation of the vehicle. (Compare the construction of similar language in statutes providing that the owner shall he liable for injuries caused by an automobile while being used by another with the owner’s permission. Souza v. Corli, 22 Cal. 2d 464, 139 P. 2d 645, 147 A. L. R. 861 (Sup. Ct. 1943) and annotation.) But the history of the omnibus clause shows that an earlier form specified as an insured “any person while riding in or legally operating the vehicle” with the permission of the named insured. Osborn v. New Amsterdam Cas. Co., 111 N. J. L. 358 (E. & A. 1933); Asnis v. Bankers’ Indemnity Ins. Co., 110 N. J. L. 134 (E. & A. 1933). The substitution of the word “using” was clearly intended to enlarge the scope of the coverage to include riding in, operating, and any other use of the vehicle. The fact that “riding in” was formerly specified makes manifest that its inclusion in the present form of the provision is within the intent as well as the literal meaning of the language used.

There is no significance, material to the present issue, in the words “actual use” in the proviso of the omnibus clause. Actual means in fact and not constructively. Here, there is no question of constructive use by Richard. He was physically using the vehicle to go to his home although he was not operating it. Under the construction of this omnibus clause in the Matits and Indemnity Ins. Go. cases, supra, no greater significance is given to “actual use” than “use.” See Metcalf v. Hartford Acc. & Indem. Co., 176 Neb. 468, 126 N. W. 2d 471 (Sup. Ct. 1964); Williams v. United Services Auto Ass’n, 250 F. Supp. 502 (N. D. Miss. 1965); 45 C. J. S. Insurance § 829, p. 902; Annotation, 160 A. L. R. 1200-1201; Appleman, Insurance Law & Practice, § 4354, p. 241.

The contention that by allegedly leaning over the front seat and interfering with the operation of the automobile defendant exceeded the permission of the owner and therefore lost insurance coverage is fully answered by the “initial permission” rule which is the law of this State. See Small v. Schuncke, supra.

Even aside from the initial permission rule, Richard's alleged conduct in this case did not deviate from permission to use the car. He was riding in the car as and where permitted. The acts alleged would constitute negligence. It is rare indeed that negligent conduct is authorized. If negligent conduct were deemed to withdraw insurance coverage, the policy would be nugatory. The very liability insured against would defeat the coverage. In fact, the jury found that Richard had not committed the wrongful acts alleged. The policy provides for the defense of groundless, false and fraudulent claims as well as truthful ones. The right to a defense arises upon the basis of the allegations of the complaint. Danek v. Hommer, 28 N. J. Super. 68, 77 (App. Div. 1953), affirmed 15 N. J. 573 (1954); Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504 (1965). Defendant was obligated to defend the action against Richard. Having refused on request to do so, it breached its policy and forced the incurring of the expense for Richard’s defense. Richard would be entitled to recover that expense. New Jersey Mfrs. Ind. Ins. Co. v. United States Cas. Co., 91 N. J. Super. 404 (App. Div. 1966). Since the cost of the defense was advanced by Richard’s father, Carl II. Gronquist, on behalf of his minor son, the father is entitled to be subrogated to his son’s cause of action. George M. Brewster & Son, Inc. v. Catalytic Const. Co., 17 N. J. 20 (1954).

Judgment will be entered in favor of the plaintiff Carl II. Gronquist and against defendant for $2,360.05 and costs.


author: Kewtz, J. J. &• D. R. C.

text:
    THE STATE OF NEW JERSEY IN THE INTEREST OF R. M.
    Juvenile and Domestic Relations Court, Union County
    Decided April 18, 1969.

      Mr. Henry W. Jaeger, Assistant Prosecutor, for the State (Mr. Leo Kaplowitz, Prosecutor of Union County, attorney).

      Mr. Mario Q. Farina, Assistant Deputy Public Defender, for the juvenile (Mr. Stanley Q. Van Ness, Public Defender).
   Kewtz, J. J. &• D. R. C.

This is a proceeding in the nature of an application for post-conviction relief to set aside adjudications of delinquency on three complaints filed in this court against the juvenile. The facts giving rise to this action may be briefly stated as follows.

On September 4, 1968 a complaint was filed in this court wherein the juvenile was charged with delinquency by virtue of having participated in a robbery. Pursuant to the then usual procedure, forms were mailed to the juvenile and his mother advising them, among other things, of the juvenile’s right to retain counsel or, if indigent, to have counsel appointed to represent him. In accordance with the instructions on these forms, they were returned to the court on September 27, 1968. Both were signed by the juvenile and his mother and on each the signer indicated that an attorney was not desired.

Both the juvenile and his mother appeared in court on November 21, 1968 for a hearing, at which time they were advised by the court of the juvenile’s constitutional rights. They both indicated that they did not want an attorney for the juvenile and executed written waivers of counsel. The juvenile admitted the offense and was adjudicated delinquent. Pinal disposition was withheld pending the hearing on another complaint that had subsequently been filed against the juvenile charging him with an offense under N. J. S. 2A :4-14.

A hearing on the second complaint was held on December 3, 1968. The court again advised the juvenile and his mother of his right to counsel. Again counsel was waived in open eonrt by the parties and each executed written waivers. The juvenile admitted the offense and was adjudicated delinquent. Pinal dispositioj) was again withheld because a third complaint had been filed against the juvenile charging him with larceny of a motor vehicle.

This third complaint was read to the juvenile and his right to counsel was again explained to him and his mother by the court. Since he then indicated that he wished to be represented by an attorney, the matter was adjourned to allow him to obtain counsel.

He was interviewed by an officer of the court for the purpose of ascertaining his eligibility to have counsel assigned. The affidavit of the juvenile indicated that ho was employed and that he was earning $2.35 per hour. Por this reason the court was of the opinion that the juvenile could afford to retain an attorney and assignment of counsel was denied.

On December 10, 1968 tbe court was advised by the juvenile’s mother that he had not obtained the job mentioned in the affidavit, was unemployed and unable to retain an attorney. Tn view of this information the court assigned counsel on December 12, 1968.

On December 18, 1968 the juvenile and his mother appeared for a hearing but the assigned counsel was not present. The court again cautioned the parties in regard to the right to counsel, but they expressed the desire to proceed without an attorney. Again written waivers were executed by the juvenile and his mother. The juvenile admitted the offense and was adjudicated delinquent. He was then committed to the Yew Jersey Reformatory for Males, the commitment to be concurrent on all three complaints.

In January 1969 the juvenile contacted the office of the Public Defender, requesting assistance and stating that he had been committed as a result of the above proceedings and had not been represented by an attorney. The Public Defender filed a motion in the nature of an application for post-conviction relief on Pebruary 4, 1969, to set aside the adjudications. A hearing was scheduled for March 7, but was adjourned because of the inability of the authorities at the institution to produce the juvenile on that date for reasons beyond their control.

The matter was relisted and heard on March 20, at which time the juvenile testified that he was 18 years of age, had attended the Lincoln School fa school for slow learners) in Plainfield, New Jersey, and had been promoted to the ninth grade at Plainfield High School. He further testified that he had continued in “special classes” until completing the ninth grade. His testimony al.so disclosed that upon attaining the age of 16 he dropped out of school and commenced working. He was employed, albeit briefly, at three jobs. His employment at the first two of these was terminated by way of normal layoffs.

On cross-examination the juvenile conceded that he bad signed the waivers previously mentioned and that none was signed as the result of any force, threats or promises. He also testified that the court had explained his rights to him prior to the hearings on each of the complaints and that he had understood the explanations, but had nonetheless voluntarily waived counsel with full knowdedge of the nature of this act.

It is contended that the juvenile was incapable of making a constitutionally adequate waiver. It is suggested that because of his youth, background, education and limited experience his waiver was not knowingly, understandably, nor intelligently made. It is further argued that even if his initial waivers were valid, the court erred in accepting the waiver of December 18, 1968, since he had previously in-cheated a desire to bo represented by counsel and had, in fact, been assigned an attorney.

The juvenile has the procedural right to mate an application in the nature of post-conviction relief in the Juvenile and Domestic Eolations Court. State in the interest of J. M., 103 N. J. Super. 88 (J. & D. R. Ct. 1968).

The right to counsel is well established in our criminal law and the need for citations to support this proposition would seem unnecessary. The right extends to the assignment of counsel if the defendant is indigent. Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). These rights also extend to juveniles in juvenile court proceedings. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

It is equally well settled that these rights can be waived by a defendant. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1937); Van Moltke v. Gillies, 332 U. S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1947).

However, waiver of the right to counsel will not be presumed from the silence of an accused after warnings are given. Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962); State v. Yough, 49 N. J. 587 (1967). The court in In re Application of Palumbo, 58 N. J. Super. 80 (App. Div. 1959), stated:

“The importance of the right to counsel in all phases of a criminal proceeding requires that an asserted waiver be shown to have been both intelligent and clearly manifest. There is a presumption of non-waiver. [Citations omitted]. In order to find an effective waiver we must be satisfied from the circumstances that (1) defendant knew he hat! a right to counsel; (2) he failed to avail himself of that right with full understanding of the implications and consequences of a idea of guilty; and (3) he nevertheless submitted the plea entirely voluntarily.”

It has frequently been argued that a juvenile is not competent to waive the right to counsel because of his young age. However, this proposition has generally been rejected by the weight of authority. Carpentier v. Lainson, 248 Iowa 1275, 84 N. W. 2d 32, 71 A. L. R. 2d 1151 (Sup. Ct. 1957); People v. Hardin, 207 Cal App. 2d 336, 24 Cal. Rptr. 563 (D. Ct. App. 1962); State v. Banford, 13 Utah 2d 63, 368 P. 2d 473, 97 A. L. R. 2d 547 (Sup. Ct. 1962); State v. Casey, 244 Or. 168, 416 P. 2d 665 (Or. Sup. Ct. 1966) ; People v. Harden, 78 Ill. App. 2d 431, 222 N. E. 2d 693 (App. Ct. 1967); People v. Lara, 67 Cal. 2d 365, 62 Cal. Rptr. 586, 432 P. 2d 202 (Sup Ct. 1967).

In State v. Gullings, 244 Or. 173, 416 P. 2d 311, 315 (1966), the Oregon Supreme Court stated:

“It might be argued that a juvenile does not have sufficient understanding to judge whether the situation was adversarial or to intelligently and knowingly waive his right against self-incrimination and his right to be represented by counsel. * * * However, the evidence indicates that the defendant understood all that was said to him and that he knowingly and freely waived his rights. He was 17 years of age and a high school student apparently possessing average intelligence. * * * It can not he said that a juvenile can not waive constitutional rights as a matter of lato. It may he more difficult to prove because of his age, but it is a factual matter to he decided by the trial judge in each case.’’ (Emphasis added)

In making this decision in any particular case courts generally consider such factors as the age, education, mental capacity, background and experience of the juvenile. In the instant case the juvenile was well over 17 years of age before even the first of the complaints with which we are concerned was heard. While he was a slow learner, he had been consistently promoted in school and had completed the ninth grade. There was no evidence that he was mentally incompetent. He had been employed on various jobs after leaving school.

In Bouldin v. Cox, 76 N. M. 93, 412 P. 2d 392 (Sup Ct. 1966), a waiver was upheld where the minor was 18, had only a fifth grade education and lacked any prior experience in court proceedings. In Carpentier v. Lainson, supra, the juvenile was 17, of normal intelligence and education, and had previously been experienced in court proceedings, including the prior assignment of counsel without fee, and his waiver of the right to counsel was sustained. In Ex parte Snow, 84 Okl. Cr. 423, 183 P. 2d 588 (Okl. Or. 1947), a waiver of counsel and a guilty plea were accepted where defendant was an ignorant farm boy, age 19, with only a third grade education. In State v. Spiers, 12 Utah 2d 14, 361 P. 2d 509 (Sup. Ct. 1961) a waiver was determined to be valid although the minor was 19 years of age, immature, bad an I.Q. of 75, and had graduated from high school with low grades.

In the case at bar the juvenile was not without prior court experience. In 1966 he had appeared in this court on a charge of rape. At that time he was represented by counsel. In 1967 he was again in this court charged with operating a motor vehicle without a license. At that time he was not represented by counsel and admitted the offense. These prior court experiences lend support to the testimony of the juvenile that he understood the procedures and explanations of the court and nevertheless chose to waive his rights.

It is also significant that there is no claim here that the proceedings were hastily conducted or that the juvenile was adjudicated delinquent in the absence of his parent. R. R. 6 :8—9. There is no assertion that the juvenile was confused or bewildered. Such factors were found to vitiate a waiver in Application of Estrada, 1 Ariz. App. 348, 403 P. 2d 1 (App. Ct. 1965).

It is generally held that the burden of proof as to the lack of a competent waiver is upon the party seeking to set aside the waiver in those cases where defendant was advised of his rights and the record so indicates. Bouldin v. Cox, supra; Palacorolle v. State, 239 Md. 416, 211 A. 2d 828 (Ct. App. 1965) : United States ex rel. Ackerman v. Russell, 388 F. 2d 21 (3 Cir. 1968).

In view of petitioner’s age, education, prior court experience, background and his own testimony at the hearing on this application, I am of the opinion that he was competent to and did in fact waive his right to counsel on at least three separate occasions. I also find that the mother of the juvenile executed on each of these occasions a waiver of counsel on behalf of her son. The juvenile has failed to sustain his burden of proof that the waivers in question were not knowingly, intelligently and freely made, and the presumption of non-waiver has been rebutted. Cf. Jenkins v. State, 57 N. J. Super. 93 (App. Div. 1959).

There remains for consideration the claim that the court erred in accepting the waiver on the third complaint after the juvenile had indicated that he desired counsel and after counsel had been assigned to represent him. This contention appears to be founded on the notion that the juvenile, once having requested counsel, is in effect estopped to later waive counsel. The court finds this contention without merit. An accused can waive his right to counsel when that right first attaches and he can also waive the right to have counsel present subsequent to counsel’s retainment or appointment, provided that such waiver be freely, knowingly and intelligently made. Dillon v. United States, 391 F. 2d 433 (10 Cir. 1968); People v. Harden, supra. Were it otherwise, a defendant would be bound by the decisions of his attorney throughout the proceedings regardless of whether he was satisfied with counsel’s conduct of his defense. He would forfeit his right to discharge counsel and represent himself and would lose all control over his fate once having obtained counsel.

The court is satisfied that such consequences are not the intendment of the guarantee of the right to counsel. The court is convinced that a waiver subsequent to assignment of counsel is permissible, provided that the waiver is made under the conditions necessary to the validity of any waiver of a constitutionally guaranteed right. I find that the requisite conditions have been met.

Application to set aside the adjudications of delinquency on these complaints is denied. An order will be entered accordingly.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WARREN L. CLARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1968
    Decided April 11, 1968.

      Before Judges Sullivan, Eoley and Leonaed.

      Mr. Paul Bangiola, assigned counsel, argued the cause for defendant-appellant.

      Mr. Donald R. Del MonteJ Assistant County Prosecutor, argued the cause for plaintiff-respondent {Mr. Prank G. Scerbo, Morris County Prosecutor, attorney).
   Pee Cueiam.

Defendant appeals from a judgment of the County Court denying his application for post conviction relief.

Defendant on June 12, 1964, in the presence of assigned counsel, entered a guilty plea to charges of carnal abuse, incestuous conduct between parent and child, contributing to the delinquency of a child, lewdness, and possession with intent to utter and expose obscene pictures.

On June 8, 1964, defendant executed Criminal Procedure Eorm 13A, in which he acknowledged, inter alia, that he understood the nature of the offenses with which he had been charged and intended to plead guilty. Thereon, his assigned attorney certified that Clark had answered and signed the Form in the attorney’s presence.

Eollowing plea, the Count}' Court judge, pursuant to N. J. S. 2A :164-3, ordered defendant to Menlo Park for examination. Thereafter, defendant was committed as a sex offender to the New Jersey State Hospital at Greystone Park for concurrent indeterminate terms for carnal abuse and lewdness. Clark was also sentenced to three concurrent terms at the Trenton State Prison for the three remaining offenses. The prison sentences were consecutive to the sex offender commitments.

On July 20, 19C5 defendant escaped from Gfreystone. He was apprehended, and on November 12, 1965 entered a guilty plea to the crime of escape. For this offense, he was sentenced to Trenton for a term concurrent with the prison sentences previously imposed. On the same day that defendant pleaded guilty to the escape charge, the Commissioner of Institutions and Agencies, pursuant to N. J. S. 2A :164-7, ordered that defendant’s commitment as a sex offender be transferred from Greystone to the Rahway State Prison Farm.

Defendant does not seek post-conviction relief from his escape conviction.

As to all the other convictions, defendant first contends that ho was denied Ms right to the effective assistance of counsel. In support of this point he argues that his assigned counsel never informed him of the actual elements of the offenses that defendant had been accused of committing and never made any attempt to inquire into any possible defenses that lie might have had. Specifically defendant urges that his counsel failed to obtain an independent psychiatric examination of him and thus gave no consideration to a possible defense of insanity. Based upon these contentions defendant requests us to permit him to withdraw Ms guilty pleas.

Defendant’s execution of Form 13A weighs heavily against his assertion that Ms plea was not entered voluntarily and understaudingly. State v. Herman, 47 N. J. 73, 77 (1966). Additionally, the record discloses that defendant’s counsel at the plea spent considerable time explaining to Clark the latter’s rights and the nature of the various offenses with which defendant had been charged. Likewise, the presiding judge repeatedly asked Clark if the latter understood the charges against him and knew what he was doing. Defendant responded in the affirmative to the court’s questioning. We determine that the record supports the conclusion of the court below that defendant entered his guilty pleas voluntarily and understandingly.

The record further establishes that prior to sentence, defendant was, at his counsel’s, request, examined by a Dr. Collins, and that counsel stated to the court that the report of that examination materially corresponded to the Menlo Park psychiatric report. Though these reports may indicate some psychological abnormality on the part of defendant, the record is entirely devoid of any basis for the assertion of the defense of legal insanity. Accordingly, we conclude that assigned counsel was under no obligation to raise that defense.

Defendant has not established that counsel assigned to him at the time of his pleas was so egregiously incompetent as to make reliance upon the latter’s advice a mockery of justice. See State v. Dennis, 43 N. J. 418, 428 (1964); State v. Bentley, 46 N. J. Super. 193, 203-204 (App. Div. 1957). The record does not reveal that any ineffectiveness of counsel caused defendant to enter pleas that were not knowingly and understandingly made. Accordingly, these pleas will not be set aside.

Defendant next contends that the Commissioner of Institutions and Agencies was without legal power to transfer him from Greystone to Rahway. This point lacks substance. See State v. Wingler, 25 N. J. 161, 171-172 (1957); State v. Newton, 17 N. J. 271 (1955); State v. Johnson, 91 N. J. Super. 426, 431 (App. Div. 1966); State v. Bray, 67 N. J. Super. 340, 346-347 (App. Div. 1961); State v. Schreffler, 63 N. J. Super. 148, 153 (App. Div. 1960); Tully v. Tramburg, 57 N. J. Super. 377, 385 (App. Div. 1959).

Judgment affirmed.


author: Labbecqtte, J. A. D. Gaulkin, S. J. A. D.

text:
    MARVIN HACKER AND EVELYN HACKER, PLAINTIFFS-RESPONDENTS, v. ROBERT STATMAN AND EAT MOR DISTRIBUTING CO., A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 24, 1969
    Decided April 24, 1969.

      Before Judges Gatjlkiit, Collestek and Labkecque.

      Mr. Sam Weiss argued the cause for appellants (Messrs. Jung, Selikoff, Bathman & Dwyer, attorneys).

      Mr. 11. Lee Sarolcin argued the cause for respondents (Messrs. Lasser, Lasser, Sarokin & Hockman, attorneys; Messrs. Sarokin, Sheppard A. Guryan and Irving G. Marcus, on the brief).
   The opinion of the court was delivered by

Labbecqtte, J. A. D.

Defendants Bobert Statman and Eat Mor Distributing Co. appeal from the granting of a new trial following a jury verdict in their favor, and from the entry of judgments based upon jury verdicts in favor of plaintiffs Evelyn Hacker and Marvin Hacker on retrial, and the denial of their subsequent motions for a new trial.

Although the record before us is lengthy, the facts are comparatively uncomplicated. On December 24, 1964, at approximately 5 p. m., defendant Statman, while operating an automobile owned by defendant Eat Mor in a westerly direction on Boute 22, at a point a short distance west of the Union exit from the Garden State Parkway, collided with the rear of a vehicle driven by plaintiff Marvin Hacker in which Hacker’s wife Evelyn and a Mrs. Hirschbcrg were passengers. Hacker testified that as he was proceeding in the inside (fast) lane at about 45 miles an hour, he glanced in his rear-view mirror and observed defendant’s car some 400 or 500 feet to his rear. It was travelling downhill in the same lane at a speed of some 60-65 miles an hour when he observed it begin to skid, and then swerve into the right lane. Thereafter he heard the screeching of brakes and his car was struck in the rear by it. He testified that after the accident, in response to an inquiry as to what had happened, Statman told him that he had been up since early morning delivering Christmas presents, and was tired and in a hurry to get home. It had rained and it was wet and misty at the time. Both drivers proceeded on after identification and verification of licenses.

Statman testified that as he was proceeding westerly at about 8-10 miles per hour in the inside (fast) lane, he had observed Hacker’s car ahead of him. He described the accident thus:

“The cars in front of me had stopped. I saw these stop lights go on so I proceeded to put my foot on the brake. There was brake failure. Just before, prior to the time of the collision, the brakes locked in the car. My vehicle skidded into the vehicle in front of m a

He asserted that he had travelled some 40 to 45 feet from the time he applied his brakes until he struck the Hacker ear. Although he testified the Hacker car had stopped approximately three to five feet behind it, it was not driven into the car ahead. He did not recall making the statement attributed to him by Hacker but conceded that he had been out delivering Christmas presents to his various customers that day.

In support of the defense that a latent defect in his brake system had caused the accident, Statman testified that he had experienced trouble with the power brakes three times over a three-month period and that the booster had been replaced on each occasion, the last time one week before the accident. The repairs had been made by an employee of defendant Eat Mor.

The case was submitted to the jury as to Statman’s negligence and Hacker’s contributory negligence. The issue of Mrs. Hacker’s contributory negligence was withdrawn from the jury’s consideration and it was instructed that any negligence on Hacker’s part would not be imputable to her.

During the course of the jury’s deliberations at the first trial it sent out a note to the judge which read, in pertinent part, as follows:

“If Mr. Statman is not negligent, can we award damages for the car only and not be contradictory in feeling that there should be no other award made or can we make any award for medical expenses and not declare Mr. Statman negligent.”

It was instructed that the amount of damages for the car was not in issue, and that it could not award medical expenses in case Mr. Statman was found not to be negligent. It thereupon resumed deliberating and returned a verdict of no cause for action.

On plaintiffs’ motion the verdict was set aside and a new trial ordered. At the second trial the jury returned a verdict of $40,000 each in favor of Mrs. Hacker and her husband.

I

Defendants’ first point challenges the order granting a new trial. They argue that the trial judge misconceived his duty in passing upon the motion, that he was restricted to canvassing the record for the sole purpose of determining whether reasonable minds might consider the evidence as adequate to support the jury’s verdict, and since there was testimony in the case which would support the verdict, his action amounted to a manifest denial of justice which requires that it be set aside.

On a motion for a new trial on the ground that the verdict is contrary to the weight of the evidence, the trial judge may not substitute his judgment for that of the jury. He is required to canvass the record to determine whether reasonable minds might accept the evidence as adequate to support the jury’s verdict. Kulbacki v. Sobchinsky, 38 N. J. 435, 445 (1962). But the presence of the mistake, passion, partiality or prejudice referred to in the rules may be inferred from factors other than the weight of the evidence. Here the trial judge determined:

“* * * the jury was prejudiced against Mrs. Hacker, wanted to give her nothing, but did desire to ‘reimburse’ Mr. Hacker for his expenses. Since the Court had ruled that Sirs. Hacker had not been contributorily negligent, the jury probably realized that if it found Statman negligent, that it would be compelled to award damages to Mrs. Hacker. Apparently, this attitude was reflected in its verdict of ‘no cause for action.’
The verdict appeared to result from a balancing of the jury’s determination not to award Mrs. Hacker damages against its desire to be fair and ‘reimburse’ Mr. Hacker. The Court is of the opinion that such a decision was based on prejudice and partiality and not on a weighing of the evidence as to the probable negligence of the defendant, Statman.”

We cannot say that it clearly and unequivocally appears that the court’s order for a new trial for the aforementioned reasons amounted to a manifest denial of justice under the law. Kulbaclci, supra, at p. 446. The testimony as to defendants’ negligence and the absence of negligence on Hacker’s part preponderated in favor of plaintiffs. When considered in connection with the questions propounded to the court by the jury during its deliberations, it afforded an adequate basis for an inference that the verdict was not the result of a weighing of the evidence, but the product of partiality and prejudice. Whether the inference was to be drawn was for the trial judge. His affirmative determination is entitled to great weight. Hartpence v. Grouleff, 15 N. J. 545 (1954). He presumably had the “feel” of the case and was in a better position than we to judge whether justice had been done, having in mind the peculiar circumstances of the case and the weight of the credible evidence. Kulbaclci, supra, at pp. 446, 459.

II

On the retrial the testimony coincided substantially with that given on the first trial, with the exception that Statman amplified his testimony concerning the asserted brake failure. He stated that on each occasion that brake repairs had been made a new power brake unit had been ordered directfy from Chrysler Corporation and placed in the car. Over plaintiffs’ objection he was permitted to state that Chrysler had sent out a letter recalling all cars of the model he was driving because of manufacturing difficulties in the power brake unit. However, on cross-examination he was unable to produce the letter and admitted that he had never seen it. In addition, he was unable to state whether the car had ever been returned to the dealer in response to the alleged letter.

In rebuttal plaintiffs produced an automotive expert who had been employed by Chrysler for 30 years and had served during portions of that period as a field testing engineer and a regional service manager. He testified that to his knowledge Chrysler had never recalled the model in question because of defective brakes. In addition, he stated that even if the power booster had failed, the car’s braking mechanism would still have functioned and the car could have been stopped, through the application of additional pressure on the brake pedal, within the same distance as would have been required had there been no failure.

At the conclusion of the testimony the trial judge (not the one who presided at the first trial) withdrew from the jury’s consideration the issue of Hacker’s asserted contributory negligence. As noted, the jury awarded $40,000 to Mrs. Iiacker and $40,000 to her husband for his consequential damages. Defendants’ motion for a new trial, as amplified by a number of supplementary motions, was denied by the trial judge.

We find defendants’ contention that the striking of the defense of contributory negligence was error to be entirely lacking in merit. Defendants carried the burden of establishing that Hacker’s conduct contributed to the happening of the accident. Dziedzic v. St. John’s Cleaners & Shirt Launderers, Inc., 53 N. J. 157, 161 (1969). A review of the record reveals no testimony on which fair-minded men could have premised a finding of his contributory negligence. His own testimony was that as he had been moving ahead at about 40 to 45 miles an hour he was struck from behind by defendants’ skidding and out-of-control car which had been proceeding at a speed of 60-65 miles an hour when he first observed it some 400-500 feet behind him. If defendant’s testimony were to be accepted, he had been following plaintiff for a least a mile before the accident at a distance of 40-45 feet and at a speed of approximately 8 miles per hour. When he observed cars (of which plaintiff was one) stopping ahead of him, he applied his brakes but was unable to stop within the 40-45 foot distance. Even if the jury believed defendant’s testimony (which plaintiff and his witnesses denied), that plaintiff- had stopped some three to five feet behind the car ahead, there was no testimony that he had stopped suddenly or that his conduct otherwise fell below the standard of reasonable care. The mere scintilla of evidence rule does not obtain in this State. Layton v. Healy, 12 N. J. Super. 459, 462 (App. Div. 1951). In the absence of disputed facts or disputed inferences to be drawn from the undisputed facts, it developed upon the court to declare the judgment which the law imposes. Kaufman v. Pennsylvania Railroad Co., 2 N. J. 318, 324 (1949).

Defendants urge that the verdict of $40,000 in favor of plaintiff husband was so excessive as to call for a new trial as to his damages.

The orthopedic surgeon who treated Mrs. Hacker testified that she sustained, among other injuries, severe sprains in the cervical and low back area with disc damage in both areas. She was originally hospitalized for three weeks during which time she was in cervical traction and on muscle relaxant medication. She was subsequently hospitalized from May 3 to May 18, 1965 and again from August 28 to September 25, 1965. During the latter period, she was again placed in traction. On October 19, 1965 she was again hospitalized and a body cast was applied. She was later fitted with a steel body brace.

On November 28, 1966 she was again hospitalized. A myelogram was first performed, which revealed a bulging disc in the lumbar area. Surgery, in the form of a laminectomy, was then carried out for removal of the disc. She was discharged on December 14, 1966. Her condition improved at first but later regressed.

Mrs. Hacker was still wearing a cervical collar and the steel brace at the time of trial. The orthopedic surgeon testified that as a result of the accident she had suffered permanent after-effects which limited her activities in almost every respect. His prognosis was that she should continue to receive physiotherapy treatments and wear the brace, and if her complaints continued for three months more, which would have been a year from the time of her laminectomy, a spinal fusion would most likely be necessary, lie described the proposed fusion operation, although he was precluded, on defendants’ objection, from testifying as to its cost.

The trial judge determined that there had been no showing that the verdicts were the result of mistake, passion, partiality or prejudice. On the contrary, he found the proofs adequate to sustain the amounts returned by the jury. Kulbacki v. Sobchinski, supra, at 38 N. J. p. 445. In so doing he recognized the doctrine that courts will interfere with a verdict on the ground of excessiveness only with reluctance and never except in a clear case. Budd v. Erie Lackawanna R. R. Co., 98 N. J. Super. 47, 59 (App. Div. 1967), certification denied 51 N. J. 186 (1968).

On review we are restricted to determining whether, having duo regard to the better opportunity of the trial judge to assess credibility, it clearly and convincingly appears that there has been a manifest denial of justice under the law. So tested, we see no cause to disturb the verdict. There was proof that over a period of two years and nine months Mr. Hacker had expended $7,489 for his wife’s medical and hospital bills, and $3,081 for extra household help made necessary by her disability. In addition, she had required his assistance in bathing, dressing, walking and performing numerous other activities. She was still disabled and it was necessary that the physiotherapy treatments she had been receiving be continued. If her pain continued for an additional three months, it was “most likely” that it would be necessary for her to undergo a spinal fusion operation, with its attendant hospital, medical and post-operative expenses.

At 47 years Mrs. Hacker had an average life expectancy of 30.31 years. If allowance is made for the husband’s actual out-of-pocket expense of $10,570, the jury awarded $29,430 for his past and future loss of services and consortium and his future expenditures in caring for his wife and replacing her services in the household. Thus, for her average life expectancy of 30 years the jury allowed him less than $1,000 annually. This was less than the amount he had expended annually, up to the time of trial, for extra household help alone.

Defendants also assert as error the trial judge’s failure to conduct a post-trial interrogation of the members of the jury. After the motion for a new trial was filed, defendants made a motion to be permitted to “examine or question the jurors * * * with relation to the verdict and deliberation thereon.” It was supported by the affidavit of defendant Stat-man to the effect that Jane D. Mervine, one of the 14 jurors who had heard the case but had been excused when the number was reduced to 12, had telephoned him to say that Davis, one of the jurors who took part in the deliberations, “was against the defendants from the very beginning * * * because he had been through a disc operation a few years ago.” She also allegedly volunteered to him that Gorski, another juror, wanted to give plaintiffs “the maximum award from the beginning” because of the appearance of the female plaintiff; that another, Mrs. Hinrich, had stated “that she didn’t want to listen to any testimony either, * * * she was so impressed with plaintiff’s attorney’s looks and speech and that he was such a handsome young man.” Statman’s informant allegedly added that most, if not all of the jurors, had formed opinions “right from the beginning of the trial” and that they had discussed the ease “each and every day” among themselves in violation of the court’s instructions.

Thereafter, while the motion was pending, an investigator hired by defendants embarked upon an investigation of Davis which, according to the former’s affidavit, revealed that some 12 years previously Davis had had an accident while painting the outside of his house in which he had sustained a pinched nerve in the upper part of his back for which he had been operated on at the Presbyterian Medical Center. No affidavit by Mrs. Mervine was ever submitted. Statman’s affidavit failed to state if and how he was able to assure himself that she was the one who had called him.

Defendants urge that, on the basis of the affidavits filed, they should have been permitted to interrogate Davis and the other jurors or, alternatively, that the trial judge should have conducted an investigation. Not so. With regard to Davis, the trial judge found, and we agree, that he was never asked at the voir dire whether he had ever been involved in an accident or had sustained a disc injury (which he apparently had not). This precluded any finding that he had concealed the fact that he had been in an accident at his home in which he had sustained a pinched nerve. Nowhere in the transcript of the voir dire does it appear that he was alerted to the necessity of making such a disclosure. Further, defendants’ post-trial investigation of Davis was highly irregular and completely contrary to the letter and spirit of R. R. 1:25A. See State v. LaFera, 42 N. J. 97, 105-106 (1964). Under that rule the trial judge alone may authorize such an investigation.

There is a strong public policy against probing the motivations which inhere in a jury’s verdict. State v. LaFera, supra, at p. 110. An inquiry such as the one here sought should not be ordered without a sufficient preliminary showing that a juror carried his prejudice, if any, into the juryroom. Ilid,. Here Statman’s affidavit, in addition to its hearsay taint, fell far short of the showing of good cause required by B. B. 1:25A. In the absence of good cause, jurors are to be protected against efforts to browse among their thoughts in search of something to invalidate their verdict. State v. LaFera, supra, pp. 106-107; cf. State v. La Rocca, 81 N. J. Super. 40, 44 (App. Div. 1963). As was said in State v. Athorn, 46 N. J. 247 (1966):

“If verdicts could be easily set aside as a result of an investigation into secret jury deliberations, disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions. Moreover, an open invitation would be extended to any disgruntled juror who might choose to destroy a verdict to which he had previously assented.” (at p. 250)

While in Aihorn the verdict was sought to be impeached by one of the jurors who took part in its rendition, the foregoing admonition would be equally, if not more applicable to one who did not participate in the deliberations.

We have reviewed the remaining points raised by defendants and, when considered in the context of the record before us, we find them to be without merit. The trial of the case began on September 11 and was concluded on September 29, 1967. The trial transcript alone contains 2,129 pages. Defendants have collated from this lengthy record a number of rulings and a number of comments (including some questions directed to witnesses) by the trial judge and challenge them as prejudicial error. As to such of them as involve the court’s rulings in response to objections or motions by defendants, we find them to be free from error. As to the trial judge’s comments of which defendants complain we are satisfied that, whether they be considered singly or together, they were harmless. R. R. 4:63-1. Some have been taken out of context and could not have been considered by the jury as carrying the meaning which defendants now seek to attribute to them. Others were not objected to below. Further, in the charge the jury was carefully cautioned to make its own appraisal of the facts and to disregard any comments or questions put to witnesses by the court.

Finally, we are convinced that there is no merit to defendants’ contention that they were deprived of a fair trial by the manner in which the trial judge is alleged to have reacted in the presence of the jury to portions of the testimony adduced by them. In passing upon the motion for a new trial, the trial judge specifically denied this criticism of his conduct of the trial and our review of the record satisfies us that it is without merit. On the contrary, we conclude from the record that defendants were accorded a fair trial, during which the judge exhibited uniform courtesy and restraint towards both sides in dealing with the many, and sometimes difficult and vexing questions which arose during this lengthy and sharply contested trial.

The judgment of the Law Division is accordingly affirmed.

Gaulkin, S. J. A. D.

(concurring) : I concur with the majority opinion. In addition, I suggest that defendants’ defense that the collision happened because of the failure of defendants’ brakes should be held to be frivolous.

As the majority opinion points out, Statman testified that he had had trouble with the brakes three times in the previous three months, that on each occasion the brakes were repaired by an employee of defendant Eat Mor, and that the last repair was made one week before the accident. If it be too early to say that one who takes a motor vehicle upon the highway impliedly warrants that it is equipped with proper brakes in working order, as well as with whatever else is essential to prevent the vehicle from becoming a menace to others within its range, it is not too early to say that when one knows that his brakes are defective, their proper repair is a nondelegable duty, and if defendant himself makes the repairs he impliedly warrants their sufficiency and is strictly liable if the brakes then fail.

In Maloney v. Rath, 69 A. C. 455, 71 Cal. Rptr. 897, 445 P. 2d 513 (Sup. Ct. 1968), defendant claimed her car ran into the rear of plaintiff’s car because her brakes failed. The jury brought in a verdict of no cause for action. The California Supreme Court reversed and ordered the entry of judgment of liability in favor of plaintiff. Chief Justice Traynor said:

“Defendant neither know nor had reason to know that her brakes were defective until they failed. The failure was caused by a rupture in a hydraulic hose that gave no warning to defendant of its impending occurrence. Defendant had the brakes completely overhauled by Peter Evanchik of Pete’s Chevron Station about three months before the accident. Eater, about two weeks before the accident, the ear was involved in another collision, and defendant’s husband had Evanchik inspect and repair it. Nothing was done to the brakes at that time. Defendant’s expert witness testified that the brakes failed because of a hole in the hydraulic hose that was caused by rubbing of the hose against the right front wheel. The rubbing resulted from faulty installation of the hose at the time the brakes were overhauled. A qualified person inspecting the brakes before they failed would have detected the faulty installation and the evidence of the rubbing.
# :¡t
Defendant offered sufficient evidence to rehut the presumption that she was negligent. The brakes had been overhauled three months before the accident; the car was inspected for damage and repaired after another accident in the interim; and the brakes gave no warning to defendant of their impending failure. Moreover, she was not negligent in failing to discover the faulty installation of or the growing damage to the hose, for those defects would be apparent only to a mechanic.
Plaintiff contends, however, that proof that defendant was not herself negligent should not absolve her from liability for the damage caused by the failure of her brakes. She contends that the court should * * * hold that a motorist is strictly liable for damage caused by a brake failure or hold that the duty to exercise reasonable care to maintain adequate brakes is nondelegable.”

The court refused to impose strict liability for brake failure. However, it said:

“It does not follow, however, that the duty to exercise reasonable care to maintain brakes so that they comply with the provisions of the Vehicle Code can be delegated. * * i: We believe * “ * that the law governing nondelegable duties dictates imposing such a duty here.
********
Section 423 of the Restatement Second Torts provides that ‘One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully * * * maintained, and who employs an independent contractor * * * maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in * * * maintaining such instrumentalities as though the employer had himself done the work of * * * maintenance.’ Section 424 provides that ‘One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.’ Both of these sections point to a nondelegable duty in this case. The statutory provisions regulating the maintenance and equipment of automobiles constitute express legislative recognition of the fact that improperly maintained motor vehicles threaten ‘a grave risk of serious bodily harm or death.’ The responsibility for minimizing that risk or compensating for the failure to do so properly rests with the person who owns and operates the vehicle. He is the party primarily to be benefited by its use; he selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him; the cost of his liability insurance that distributes the risk is properly attributable to his activities ; and the discharge of the duty to exercise reasonable care in the maintenance of his vehicle is of the utmost importance to the public. * * *
In the present case it is undisputed that the accident was caused by a failure of defendant’s brakes that resulted from her independent contractor’s negligence in overhauling or in thereafter inspecting the brakes. Since her duty to maintain her brakes in compliance with the provisions of the Vehicle Code is nondelegable, the fact that the brake failure was the result of her independent contractor’s negligence is no defense.
The judgment and the order denying the motion for judgment notwithstanding the verdict on the issue of liability are reversed and the case is remanded to the trial court for a new trial on the issue of damages only.”

In Maloney v. Rath, supra, the repairs were made by an independent contractor. Since the repairs here were made by Eat Mor’s own employees, the rationale of Maloney v. Rath, supra, should apply to the case at bar with even greater force. This is so even though defendants protest that the fault lay in the repair parts supplied by Chrysler.

Affirmed.


author: Gaulkix, S. J. A. D.

text:
    RESIN RESEARCH LABORATORIES, INC., a CORPORATION, PLAINTIFF-APPELLANT, v GEMINI ROLLER CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 31, 1969
    Decided April 30, 1969.

      Before Judges Garlkest, Collestee and Labkecque.

      Mr. Adrian M. Unger argued the cause for appellant (Messrs. Milton M. and Adrian M. Unger, attorneys).

      Mr. Benjamin Coe argued the cause for respondent.
   The opinion of the court was delivered by

Gaulkix, S. J. A. D.

Plaintiff sued defendant in the Essex County District Court for breach of contract and served it under our “long-arm” rule, R. R. 4:4-4(d). The trial judge set aside the service as constitutionally impermissible and plaintiff appeals.

Plaintiff is a New' Jersey corporation engaged in chemical research and development. Its only offices and laboratories were in Newark. Defendant is a New York corporation whose office was in New York City and its plant on Long Island. It manufactured rollers for the printing trades. Gemini telephoned Resin, stating it was interested in procuring a formula for vinyl resin to be used on printing rollers. A representative of Resin called on Gemini in New York City and discussed the matter. Thereafter, on May 22, 1967, Resin wrote Gemini from Newark setting forth its proposal. Gemini replied by letter dated May 25. In it Gemini made a counterstatement of what it wanted and asked Resin to write a letter in the form which Gemini set forth. It appears that Resin did not send such a letter, but Resin did proceed on the basis of Gemini’s May 25 letter. Thereafter there were letters and telephone conversations between the parties; Gemini sent to Resin samples of compounds made by others; all of Resin’s work was done in Newark but Resin sent reports and samples of the material compounded by it to Gemini. Gemini paid $1,000 on account but refused to pay the balance, alleging that Resin’s product was unsatisfactory. Resin then instituted this action for the balance.

The trial court held that “Gemini’s office and factory are in New York and its products are sold exclusively within the State. It owns no real or personal property in New Jersey and the evidence reveals no activity within New Jersey beyond the transaction involved in this suit * * *,” and therefore there did not exist “the minimal contacts with * * * New Jersey that are prerequisite to the exercise of its power over this defendant * * We think that this view was too narrow. We hold that since Gemini contacted Resin in New Jersey and Resin’s work was done here, where it was reasonable to expect it would be done, the service was proper. Corporate Development Specialists, Inc. v. Warren-Teed Pharmaceuticals, Inc., 102 N. J. Super. 143, 153-155 (App. Div. 1968). See also Ziegler v. Houghton-Mifflin Co., 80 Ill. App. 2d 210, 224 N. E. 2d 12, 15 (App. Ct. 1967). Compare DeLear v. Rozel Packing Corp., 95 N. J. Super. 344 (App. Div. 1967); Webb v. Stanker and Galetto, Inc., 84 N. J. Super. 178 (App. Div.), certification denied 43 N. J. 263 (1964), certiorari denied 380 U. S. 907, 85 S. Ct. 888, 13 L. Ed. 2d 795 (1965).

Defendant argues that it was not part of the contract that plaintiff do its work in New Jersey, and that plaintiff could have done it anywhere. But that makes no difference, since defendant must have expected that the work would be done here. As we said in Corporate Development in answer to a similar argument (102 N. J. Super., at p. 147) : “We conceive there is every probability from the proofs that defendant realized at all times that all or most of plaintiff’s efforts to perform the contract would be expended at or out of its Newark office, and we so find.”

Defendant argues also that the contract was made orally in New York and that the subsequent letters were merely confirmatory. We need not decide whether that is so. Since, as we have said, substantial performance in New Jersey was contemplated, it makes no difference in the case at bar whether technically the contract was entered into in New York or in New Jersey. Cf. Webb v. Stanker and Galetto, Inc., supra.

Finally, there can be no claim that the forum is inconvenient.

In short, here the contacts of the defendant with New Jersey make it reasonable to require the corporation to defend this suit. The order appealed from is reversed.


author: Per Curiam.

text:
    CONTINENTAL FINANCE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. CAMBRIDGE LEE METAL CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND UNITED STATES OF AMERICA, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 28, 1969
    Decided May 8, 1969.
    Before Judges Conford, Kilkenny and Leonard.

      Mr. William. 8. Katchen argued the cause for appellant (Messrs. Bavin & Bavin, attorneys; Mr. David N. Bavin, of counsel).

      Mr. Don Allen Besnihoff, Assistant United States Attorney, argued the cause for respondent United States of America (Mr. David M. Satz, Jr., United States Attorney, attorney).
   Per Curiam.

We affirm essentially for the reasons stated in Judge Hand’s opinion for the Law Division, as reported in 100 N. J. Super. 327 (1968).


text:
    MICHAEL A. PRIBISH AND LORRAINE H. PRIBISH, PLAINTIFFS-APPELLANTS, v. HARRY J. CORBETT AND JEAN P. CORBETT, JOHN H. OSBORN, ETC., AND BOARD OF ADJUSTMENT OF NEW SHREWSBURY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 14, 1909
    Decided May 1, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Daniel J. O’Hern argued the cause for appellants (Messrs. Abramof, Apy & O’Hern, attorneys).

      Mr. Theodore D. Parsons, Jr. argued the cause for respondents Harry J. Corbett and Jean P. Corbett (Messrs. Parsons, Oanzona, Blair & Warren, attorneys).

      Mr. 8. Thomas Oagliano argued the cause for respondent Board of Adjustment of New Shrewsbury (Messrs. Potter and Oagliano, attorneys).
   Per Curiam.

The oral conclusions stated by the Law Division have the agreement of this court. Subject to the modification of the judgment in respect of the encroachment of the proposed retaining wall on the public easement, mentioned hereinafter, the judgment will be affirmed essentially for the reasons given by the trial court.

We have this specific comment concerning plaintiffs’ argument that the recent decisions of the Supreme Court in Loechner v. Campoli, 49 N. J. 504 (1967), and Ryan v. Bd. of Adjust.,Woodbridge Tp., 49 N. J. 520 (1967), made it necessary that defendants’ application for a variance to permit a home to be built on Lot 8 be referred for approval to the planning board. We find nothing in those eases to support the view that where, as here, a municipal planning board functioning pursuant to the Planning Act of 1953 has approved a subdivision with designated lots platted thereon, and a purchaser from the sub divider acquires two contiguous lots so platted and approved (whether or not previously improved), he requires renewed approval from the planning board as a condition for constructing or selling homes on either of the lots. Those cases dealt with lots mapped and platted pursuant to statutes antedating the Planning Act of 1953 — statutes devoid of the significant and salutary protections of the public interest contained in that act. The lots here involved having once been finally approved by the planning board, operating under the standards of the Planning Act of 1953, as appropriate for separate home sites, that decision is in nowise impaired or rendered devoid of effect, insofar as the Planning Act is concerned, by the fact that two of such lots, adjacent to each other, have subsequently come into a single ownership. This is at least true where, as we find to be the case here, the owner has done nothing to destroy the distinct identity of the two lots as suitable building sites.

The separate question whether a hardship variance should be granted in respect of one of the lots for dwelling purposes, made necessary by reason of zoning enlargement of minimum lot dimensions subsequent to planning board approval of the map of the lots, is one solely for the board of adjustment, not the planning board.

In order more precisely to effectuate the intent of the trial court, with which we agree, that the proposed retaining wall not encroach on the public easement, we direct that the judgment be amended expressly to state that the building plans heretofore submitted by defendants to the board of adjustment for approval be modified to exclude any part of any retaining wall from any portion of the public right of way across the lot in question.

Plaintiffs urge that it be required that amended building plans effectuating the foregoing direction be submitted to the board of adjustment for its approval. We do not regard this as necessary. Counsel for the board of adjustment has represented both to the trial court and this court that the board of adjustment is not concerned with the location of any retaining wall between the proposed home site and the public easement, and that its grant of variance was not intended to depend thereon. Moreover, the findings and conclusions of the board in granting the variance were not so conditioned. It is highly desirable that this protracted litigation should be finally concluded.

As directed above to be modified in form, the judgment is affirmed.


author: Sullivan, S. J. A. D. Eoley, J. A. D.

text:
    STATE OF LOUISIANA, PLAINTIFF-RESPONDENT, v. SHELDON LESTER ARONSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 21, 1969
    Decided May 1, 1969.

      Eoloy, J. A. D., dissented.

      Before Judges Sullivan, Eoley and Lewis.

      Mr. Harold J. Ruvoldt, Jr., argued the cause for appellant (Messrs Ruvoldt <£ Ruvoldt, attorneys).

      Mr. William, J. Ounnane, Assistant Prosecutor, argued the cause for respondent (Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

This appeal involves the issue whether Hew Jersey is a receiving state under the Uniform Act for Out-of-State Parolee Supervision (Uniform Compact Act). Hew Jersey is a signatory to the interstate compact for supervision of parolees and probationers of one state resident in another state, and has adopted the Uniform Compact Act, N. J. S. 2A :168-14 to 17.

Defendant Aronson was convicted of the possession of narcotics in the State of Louisiana in December 1967. He was placed on probation in that state for 2Jí years but was given permission to take up residence in Brooklyn, Hew York, with his parents. The record contains the hearsay statement that defendant “signed a waiver or agreement to return in the event that a violation of probation warrant was issued against him.”

Defendant, without permission of the Louisiana probation authorities, moved to Hew Jersey and has continued to reside in this State. As a result, a warrant charging defendant with violation of probation was issued in Louisiana and delivered to the Hudson County Probation Office. The matter then came on for a hearing before the Hudson County Court, which ruled that Hew Jersey was a receiving state under the Uniform Compact Act and that the warrant was sufficient authority to deliver defendant to the duly accredited officer of Louisiana for return to that state.

Defendant appeals, charging that Hew Jersey is not a receiving state under the Uniform Compact Act because it is not the state in which defendant was permitted to reside, nor has New Jersey consented to receive defendant and exercise parole supervision over him, as the Uniform Compact Act provides. Defendant argues that the proper proceeding to be followed is extradition and that in fact extradition proceedings against him are pending in New Jersey and awaiting the outcome of this appeal.

We affirm the decision of the Hudson County Court. It is true that New Jersey is not a receiving state in the sense that it is not the state in which defendant is permitted to reside under the terms of his parole. New Jersey has not consented to defendant being allowed to reside in this State, nor has it assumed the duties of parole supervision over defendant. However, New Jersey is a signatory to the interstate compact and has adopted the Uniform Compact Act. One of the purposes of said act is to facilitate the return of parolees to the paroling state without the necessity of bringing formal extradition proceedings. See N. J. S. 2A :168-14(3). To that end, the Uniform Compact Act provides that all legal requirements to obtain extradition are expressly waived on the part of states which are parties to the compact as to parolees and probationers from another state.

It is undisputed that defendant is found in this State. Since New Jersey is a signatory to the compact, and has adopted the Uniform Compact Act, we conclude that New Jersey is a receiving state for the purpose of returning defendant to Louisiana as a parole violator under the procedures established in the Uniform Compact Act. Cf. In re Casemento, 24 N. J. Misc. 345, 49 A. 2d 437 (C. P. 1945).

We note that in the 1953 supplement to the Uniform Compact Act, N. J. S. 2A :168—18 to 25, “Receiving State” is defined as “any State, other than the sending State, in which a parolee or probationer may be found; provided, that said State has enacted reciprocal legislation.” See N. J. S. 2A :168-19.

We find no merit in defendant’s contentions that the Uniform Compact Act denies due process of law and is unconstitutional. Ex Parte Tenner, 20 Cal. 2d 670, 128 P. 2d 338 (Sup. Ct. 1942), stay granted 314 U. S. 585, 62 S. Ct. 409, 86 L. Ed. 473 (1941), stay vacated 317 U. S. 597, 63 S. Ct. 151, 87 L. Ed. 488 (1942); Pierce v. Smith, 31 Wash. 2d 52, 195 P. 2d 112 (Sup. Ct. 1948), certiorari denied 335 U. S. 834, 69 S. Ct. 24, 93 L. Ed. 387 (1948).

Defendant’s further contention that the pending extradition proceeding is a criminal charge against him in this State and bars proceedings under the Uniform Compact Act is likewise without merit.

Affirmed.

Eoley, J. A. D.

(dissenting). I am satisfied that Hew Jersey is not a “receiving state” under the Uniform Compact Act, N. J. S. 2A :168-14 et seq., and for that reason dissent.

N. J. S. 24:168-14 provides in pertinent part:

“That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called ‘sending state’) to permit any person convicted of an offense within such state and placed on probation * * * to reside in any other state party to this compact (herein called ‘receiving state’) while on probation * * (Emphasis added)

Under the facts of this case there can be no doubt that the State of Louisiana was the “sending state,” i. e., the state wherein defendant was convicted of an offense and subsequently placed on probation. But it was New York, and not Üew Jersey, which was the “receiving state” since the duly constituted judicial authorities of Louisiana permitted defendant to reside in that State.

Reference is made by the majority to N. J. S. 24 :168-19:

“As used in this act, the term ‘receiving State’ shall be construed to mean any State, other than the sending State, in which a parolee or probationer may be found; provided, that said State has enacted reciprocal legislation.”

However, this act was passed some years after the enactment of N. J. S. 2A :164-14 through N. J. S. 2A :168—17 and by its express terms limited the definition of receiving state therein contained to N. J. S. 2A :168-18 to 25.

Louisiana did not permit defendant to come to New Jersey, nor did New Jersey consent to receive him. Indeed, there is no indication that New Jersey had the slightest knowledge of his presence within the State, and in the circumstances could not have supervised his probation as it would have been required to do had defendant been sent here.

I would reverse.