text:
    MIRIAM BENNETT AND CHARLES BENNETT, PLAINTIFFS-RESPONDENTS, v. T & F DISTRIBUTING CO., OTHERWISE KNOWN AS KIRBY SALES & SERVICE, INC., DEFENDANT-APPELLANT, AND KIRBY VACUUM CORP., THE CITY OF NEPTUNE AND THE SCOTT AND FETZER CO., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1971
    Decided December 16, 1971.

      Before Judges Collestek, Mintz and Lynch.

      Mr. Philip Q-. Auerbach argued the cause for respondents Miriam Bennett and Charles Bennett (Messrs. Drazin, Warshaw, Auerbach & Rudniclc, attorneys; Mr. Robert T. Winter on the brief).

      Mr. Robert M. Graham argued the cause for appellant (Messrs. Champí, Graham & Turasko, attorneys).

      Mr. Thomas F. Heaney, Jr. argued the cause for respondent City of Neptune (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).

      Mr. Paul X. McMenaman argued the cause for respondent Scott and Eetzer Co.
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an appeal, leave having been granted, by defendant T & E Distributing Co. (T & E), a distributor of vacuum cleaners, from the denial of its motion for summary judgment. In this suit T & E is charged with negligence in having selected one Watson to sell its vacuum cleaners when it should have known that he had vicious propensities. In the course of his contact with plaintiff Miriam Bennett, to whom he had sold a vacuum cleaner at her home in Neptune City, he committed an atrocious assault and battery upon her. She sues for damages for the serious injuries she sustained. Her husband sues per quod. Watson is currently serving a 7-10-year sentence in the State Prison for the crime thus committed.

On September 11, 1968 Eoy Watson signed what is labeled an “independent Dealer’s Contract” with T & E, wherein Watson, as “dealer,” agreed to buy vacuum cleaners from T & E and to sell them at retail. It is not necessary to set forth the details of the contract but it is apparent that every effort was therein made to establish that Watson was an “independent dealer” and not an employee of T & E. Suffice it to say that such questions (agency vel non) scarcely can be decided as a matter of law, but usually are questions for the fact finder, considering all elements relevant to the proper status. Cf. Miklos v. Liberty Coach Co., 48 N. J. Super. 591, 602 (App. Div. 1958).

The allegation of the complaint is that T & E was negligent “in hiring, entering into an arrangement, or permitting the said Roy E. Watson, otherwise known as Leroy Turner, to be placed in a position where he could make sales on a door-to-door basis when they know, or should have known, of his vicious propensities and his prior criminal record.’ If Watson had been acting within the scope of emplojunent when he assaulted Mrs. Bennett, it would be immaterial whether T & E was negligent in hiring Watson, for in such instance T & E would be liable on the theory of respondeat superior. In 53 Am. Jur. 2d Master and Servant, § 422 at 437, it is said:

The application of the theory of independent negligence in hiring or retaining an employee becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment. In these cases such application allows the injured person to establish liability on the part of the master where no liability would otherwise exist. For this reason a great many of the cases holding the theory applicable involve assaults.

Thus we here approach the issue as to whether T & E can be held liable for negligence in selecting Watson to sell its vacuum cleaners and whether the denial of summary judgment as to T & E was proper.

Prior to signing the contract Watson had filled out an application for the so-called “dealership.” He gave the names of two former employers and listed two references. T & E’s president testified on deposition that he had telephoned the two employers and each advised that Watson was reliable and responsible. His recollection as to the references was somewhat hazy but he “believed” he had called them and he was “satisfied.” No other inquiry was made.

The fact was that Watson had a rather extensive criminal record. However, in all but one instance the record was under an alias of Leroy Turner. Under the latter name he had been convicted of larceny of automobiles, assault and battery, malicious mischief, of being a disorderly person, and also he had been arrested and charged with possession of stolen property. On March 17, 1968, about 5)4 months before his employment with T & E and about Q)4¡ months before the Bennett episode, he had been arrested on a charge of assault with a deadly weapon. The P. B. I. record on this charge entered the arrest under the names of both Leroy Turner and Boy Watson.

The court below denied T & P’s motion for summary judgment on the ground that there were “factual questions to be decided as to the relationship between T & E, the defendant in this case, and Watson.”

At oral argument we were advised that in Neptune City, where Watson solicited Mrs. Bennett’s patronage, there was an ordinance which required that all “peddlers” such as Watson be licensed. We are further advised that it is the practice to obtain fingerprints of the licensee, though the ordinance does not, by its terms, require it. Watson was not licensed. There is thus raised the question as to whether T & P had a duty to see to it that Watson was licensed and, if so, whether fingerprints would have served to reveal the criminal record of Watson (or Leroy Turner).

We do not here undertake to decide the extent of the duty, if any, of defendant T & P to investigate Watson’s previous background or propensities, but, for reasons now to be stated, we confine ourselves to determining whether denial of summary judgment as to T & P was proper.

This case calls for pronouncement of new law in this State in that it is sought to hold an “employer” (T & P) liable for the actions of its “agent” or “independent contractor” (whichever it may be), on the theory that T & P should have known of the vicious propensities of Watson and was guilty of negligence in selecting him to sell its wares. The principle suggested by plaintiffs is not without precedent outside of New Jersey. See Restatement, Agency, 2d, § 213, comment (d) (1958); Restatement, Torts 2d, § 302 B, comment (e), ex. (D), § 307, comment (a), illus. 1; § 308 (1965), and Annotation, ‘Liability of employer, other than carrier, for a personal assault upon customer, patron or other invitee.” 34 A. L. R. 2d 372 (1954). It was recognized in the cases of Fleming v. Bronfin, 104 A. 2d 407 (D. C. Mun. Ct. App. 1954); Bradley v. Stevens, 329 Mich. 556, 46 N. W. 2d 382 (Sup. Ct. 1951), 34 A. L. R. 2d 367 (1954), and Hersh v. Kentfield Builders, Inc., 19 Mich. App. 43, 172 N. W. 2d 56 (Ct. App. 1969). However, in Fleming and in Hersh it was held that there was not sufficient evidence of negligence in the hiring of the “vicious” employee involved to warrant submission of the case to the jury. In Bradley v. Stevens, supra, a verdict of “no cause for action” in favor of defendant employer of an employee who had attacked a patron in a gasoline station was affirmed.

We note that the foregoing authorities are in the context of an agency relationship and not that of an independent contractor. However, exceptions to the rule as to independent contractors (nonliability of one who hires an independent contractor for the latter’s negligence) have been created where the hiring party engages an incompetent contractor. It has even been suggested that the contractee should be liable for his independent contractor’s financial irresponsibility. See Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N. J. 425 (1959). There the court bespoke the policy considerations which, arguably, might extend liability in such instance:

Inevitably tbe mind turns to the fact that the injured third party is entirely innocent and that the occasion for his injury arises out of the desire of the contractee to have certain activities performed. The injured has no control over or relation with the contractor. The contractee, true, has no control over the doing of the work and in that sense is also innocent of the wrongdoing; but he does have the power of selection and in the application of concepts of distributive justice perhaps much can be said for the view that a loss arising out of the tortious conduct of a financially irresponsible contractor should fall on the contractee. [at 432-433]

The same considerations may call for liability here where a customer, such as Mrs. Bennett, entirely innocent, is injured by one selected by the eontractee T & E to sell its vacuum cleaners to housewives such as she.

There are conflicting interests to be considered in the adoption of a proper rule in this context. The protection of innocent third persons is a major interest in favor of adoption of a rule imposing a duty of reasonable care in the selection of employees or independent contractors who may have vicious propensities. Such a rule may induce a distributor such as T & E or others similarly situated to be more careful in selecting one to act for them in contact with members of the public such as prospective customers. “This is a duty which arises in all cases where an agent is employed, and no harm can come from stimulating its exercise in the employment of an independent contractor, where the rights of others are concerned.” Covington & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 215, 55 N. E. 618, 621 (Sup. Ct. 1899), quoted with approval in Majestic Realty Associates, Inc., supra, 30 N. J. at 440.

There are countervailing policies which may preclude such liability, e. g., the possibility that employers will not employ those who may have had vicious episodes in the past but who have been rehabilitated, or, that such imposition of liability might impose a heavy burden on those employers recruiting workers from among the hard-core unemployed. Cf. Hersh v. Kentfield Builders, Inc., supra, 112 N. W. 2d at 57.

In any event, important policy considerations are involved here not only with respect to protection of innocent victims, but also to definition of the duty, if any, of employers of all types of employees — salesmen, service people, insurance agents, and countless others — to investigate their backgrounds, and the extent to which they should go in such investigations.

In Jackson v. Muhlenberg Hospital, 53 N. J. 138, 142 (1969), we are reminded that where a case generates an important issue involving highly significant policy considerations and where the ruling sought would reach far beyond the particular ease, “maximum caution” must be exercised before granting summary judgment. That is the nature of the ruling sought here. The issue should not be resolved until a full record is developed at trial. Cf. Anderson v. Sills, 56 N. J. 210, 215 (1970).

Eor these reasons, the denial of summary judgment is affirmed.

       We note the narrow ground (italicized by us) by which plaintiffs attribute liability to T & F, and that it is not alleged that Watson was an agent of T & F who committed the tort while acting within the scope of his authority.


source: Caselaw Access Project

author: Lane, J. A. D.

license: Public Domain

text:
    CLIFFORD HAGAMAN, PLAINTIFF-APPELLANT, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF WOODBRIDGE IN THE COUNTY OF MIDDLESEX, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 7, 1971
    Decided December 14, 1971.

      Before Judges Kilkenny, Labkbcque and Lane.

      Mr. Antonio B. Oioffi, argued the cause for appellant.

      Mr. Stewart M. Hutt argued the cause for respondent (Messrs. Hutt & Berlcow, Attorneys; Mr. Hutt, of counsel and on the brief; Mr. Richard W. Kracht, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

The complaint seeks possession of real property conveyed by plaintiff’s parents to defendant on October 20, 1925. Both parties moved for summary judgment. The trial court, 112 N. J. Super. 221, granted defendant’s motion. The judgment that was entered “ORDERED that Summary Judgment be and is hereby granted to the defendant, Board of Education of the Township of Wood-bridge dismissing plaintiff’s complaint.” Plaintiff appeals.

The deed to defendant contained a provision:

It is the understanding of the parties to this conveyance that the hereinabove described land is conveyed solely for the purpose of being used for the erection and maintenance of a public school or schools and that the Board of Education of Woodbridge Township, N. J., will erect a school thereon on or before the school year of 1926 and use such building for school purposes.

Prom the affidavits and admissions in the pleadings it was uncontroverted that defendant erected a school building on the property and used the property for school purposes until approximately 1968. In that year the school building was closed. The students who formerly would have attended the school began to attend two new schools within the area. At the time of the trial the property in question was used as a recreational park or playground. It was equipped with swings, a sliding board, monkey bars and basketball courts. During the summer it was supervised by a full-time playground supervisor. Organized and supervised play activities were carried on. On March 2, 1971 after the judgment was rendered the school building was destroyed by fire.

Plaintiff argues that the deed expresses a clear and unequivocal intention to convey a fee simple determinable or a fee simple subject to a condition subsequent and that he is entitled to possession because the property is no longer being used for the maintenance of a public school.

In determining the meaning of a deed, prime consideration is the intent of the parties. Normanoch Association, Inc. v. Baldasanno, 40 N. J. 113, 125 (1963) ; Baker v. Normanoch Ass’n, Inc., 25 N. J. 407, 417 (1957); Union Co. Indust. Park v. Union Cty. Park Comm’n, 95 N. J. Super. 448, 452 (App. Div. 1967).

An estate in fee simple determinable is an estate in fee simple which automatically determines upon the occurrence of a given event. The grantor retains a possibility of reverter upon the occurrence of the stated event. Lehigh Valley R. R. Co. v. Chapman, 35 N. J. 177, 182 (1961), cert. den. 368 U. S. 928, 82 S. Ct. 364, 7 L. Ed. 2d 192 (1961); Oldfield v. Stoeco Homes, Inc., 26 N. J. 246, 254 (1958); Carpender v. New Brunswick, 135 N. J. Eq. 397, 401 (Ch. 1944); Board of Chosen Freeholders of Cumberland County v. Buck, 79 N. J. Eq. 472, 475 (Ch. 1911); Restatement, Property, § 44 at 121 (1936); 2 Powell, Real Property, § 187 at 44 (1967); 4 Thompson, Real Property, § 1871 at 542 (1961). Generally, the intent to create such an estate is indicated by the use of words denoting duration of time such as “while,” “during,” “so long as.” Lehigh Valley R. R. Co. v. Chapman, supra, 35 N. J. at 183; Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 256; Board of Chosen Freeholders of Cumberland County v. Buck, supra, 79 N. J. Eq. at 476; Restatement, Property, supra, § 44, comment l, at 128; 2 Powell, Real Property, supra, § 187 at 45-47; 4 Thompson, Real Property, supra, § 1871 at 549. “The absence of some one of these phraseologies makes it likely that a court will find a covenant, a trust, or some other type of interest less drastic in its sanctions.” 2 Powell, Real Property, supra, § 187 at 45-47. See Oldfield v. Stoeco Homes, Inc., supra; Alexander Bldg. Corp. v. Carteret, 31 N. J. 87 (1959); Hewitt v. Camden County, 7 N. J. Misc. 528, 146 A. 881 (Cir. Ct. 1929); Board of Education, West Paterson v. Brophy, 90 N. J. Eq. 57 (Ch. 1919). However, •“* * * particular forms of expression standing alone and without resort to the purpose of the instrument in question are not determinative * * *.” Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 256. Words of limitation merely-stating the purpose for which the land is conveyed usually do not indicate an intent to create an estate in fee simple determinable although other language in the instrument, the amount of the consideration and the circumstances surrounding the conveyance may indicate such an intent. Restatement, Property, supra, § 44, comment m, at 129-130; 2 Powell, Real Property, supra, § 187 at 48-49. When a conveyance contains only a clause of condition or of covenant, such clause does not usually indicate an intent to create a fee simple determinable. Restatement, Property, supra, § 44, comment n, at 130.

An estate in fee simple subject to a condition subsequent is an estate in fee simple which upon the occurrence of a given event gives to the grantor or his successor in interest the right to reenter and terminate the estate. Upon the occurrence of the given event, the forfeiture of the estate is not automatic. Lehigh Valley R. R. Co. v. Chapman, supra, 35 N. J. at 183; Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 254-255; Carpender v. New Brunswick, supra, 135 N. J. Eq. at 401; Board of Chosen Freeholders of Cumberland County v. Buck, supra, 79 N. J. Eq. at 475; Restatement, Property, supra, § 45 at 133; 2 Powell, Real Property, supra, § 188 at 54; 4 Thompson, Real Property, supra, § 1874 at 568. The intent to create such an estate may be indicated by the use of such words as “on condition that,” “provided that.” Lehigh Valley R. R. Co. v. Chapman, supra, 35 N. J. at 183; Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 256; Board of Chosen Freeholders of Cumberland County v. Buck, supra, 79 N. J. Eq. at 476; Restatement, Property, supra, § 45, comment l, at 140. ■However, such language is not necessarily determinative. Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 256; Restatement, Property, supra, § 45, comment n, at 141; 2 Powell, Real Property, supra, § 188 at 58.3; 4 Thompson, Real Property, supra, § 1875 at 577-578 and 583-584. Generally, an intent to create a fee simple subject to a condition subsequent is established when the conveyance contains one of the above phrases and a provision that if the given event occurs the grantor may enter and terminate or has a right to re-enter. Restatement, Property, supra, § 45, comment j, at 139; 2 Powell, Real Property, supra, § 188 at 58-58.1. “Conditions subsequent must be so created as to leave no doubt regarding the grantor’s intention.” 4 Thompson, Real Property, supra, § 1875 at 578. A mere statement of the use to which the conveyed land is to be devoted is not sufficient to create an estate in fee simple subject to a condition subsequent. Restatement, Property, supra, § 45, comment o, at 143; 2 Powell, Real Property, supra, § 188 at 58.3-58.4; 4 Thompson, Real Property, supra, § 1875 at 584. Absent clear intention to create a fee simple subject to a condition subsequent, a conveyance with words of condition may be found to create a covenant, a trust, or a mere precatory expression. MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652, 659 (E. & A. 1905); Restatement, Property, supra, § 45, comment n, at 141; 2 Powell, Real Property, supra, § 188 at 57-58.

Language in an instrument which is alleged to create a fee simple determinable or a fee simple subject to a condition subsequent is strictly construed. “A recognized rule of construction indicates that an instrument, when a choice exists, is to be construed against rather than in favor of a forfeiture.” Lehigh Valley R. R. Co. v. Chapman, supra, 35 N. J. at 188; Shuster v. Board of Education, Hardwick Tp., 17 N. J. Super. 357, 359 (App. Div. 1952) ; 4 Thompson, Real Property, supra, § 1876 at 594.

If a choice is between an estate in fee simple determinable and an estate on condition subsequent, the latter is preferred. Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 258; Restatement, Property, supra, § 45, comment m, at 140; 2 Powell, Real Property, supra, § 188 at 56. But see 4 Thompson, Real Property, supra, § 1871 at 553. Where it is doubtful whether a clause in a deed is a covenant or a condition, the former is preferred. Lehigh Valley R. R. Co. v. Chapman, supra, 35 N. J. at 188; Oldfield v. Stoeco Homes, Inc., supra, 26 N. J. at 257; Woodruff v. Woodruff, 44 N. J. Eq. 349, 353 (Ch. 1888). When a condition in a deed is relied upon to defeat an estate, it should be strictly construed and its violation must be clearly established. Shuster v. Board of Education, Hardwick Tp., supra, 17 N. J. Super. at 359; Board of Education, West Paterson v. Brophy, supra, 90 N. J. Eq. at 62; Sunshine Park, Inc. v. Gulvin, 21 N. J. Misc. 282, 286, 33 A. 2d 704, 706 (Sup. Ct. 1943).

In the present case there are no words indicating an intent to create a fee simple determinable or a fee simple subject to a condition subsequent. There are no words creating either a right of re-entry or a possibilitj1, of a reversion.

Plaintiff does not have a right to possession to the property under the deed. This holding by the trial court was correct.

In its decision upon which the judgment was based, the trial court raised an issue that was not in the pleadings. The trial court suggested that the defendant held “a fee simple absolute subject to a trust for the charitable purpose of maintaining an educational facility.” The opinion granted leave to plaintiff to amend his complaint to seek the enforcement of a charitable trust; and to the defendant, to answer and counterclaim for a declaratory judgment or for instructions whether under the circumstances a public playground may be substituted for a school use under the doctrine of cy pres.

Plaintiff filed a written “Declination of Permission to Amend.” No counterclaim was filed by defendant. In stating that plaintiff could amend his complaint to seek the enforcement of a charitable trust, the trial court was in error. Generally, heirs of a settlor cannot enforce a charitable trust. See First Camden, &c., Trust Co. v. Hiram Lodge No. 81, 134 N. J. Eq. 303, 308 (Ch. 1944), aff'd o. b. 135 N. J. Eq. 505 (E. & A. 1944); MacKenzie v. Trustees of Presbytery of Jersey City, supra, 67 N. J. Eq. at 678; 2 Restatement, Trusts 2d, § 391, comment e, at 280 (1959); 4 Scott on Trusts (3d ed.), § 391 at 3012-3014 (1967); Bogert, Trusts & Trustees (2d ed.) § 415 at 348 (1964). The Attorney General is an indispensable party. Passaic Nat. Bank, &c., Co. v. East Ridgelawn Cemetery, 137 N. J. Eq. 603, 608 (E. & A. 1946). A suit to enforce a charitable trust may be brought by the Attorney General, by the trustee or by one having a special interest in its enforcement. First Camden, &c., Trust Co. v. Hiram Lodge No. 81, supra; Di Cristofaro v. Laurel Grove Memorial Park, 43 N. J. Super. 244, 250 (App. Div. 1957); 2 Restatement, Trusts 2d, supra, § 391 at 278; 4 Scott, Trusts 3d, supra, § 391 at 3002.

Defendant cross-appeals from so much of the judgment that “adjudges that, the deed from the plaintiff’s parents to the defendant, Board of Education does not establish a fee simple estate in the defendant-respondent, Board of Education.” No counterclaim was filed by defendant and such relief was not sought. It is inappropriate to seek for the first time on appeal a declaration of defendant’s interest in the property. A determination on that question may be made in a proceeding properly brought at a later time seeking such relief. The failure to file a counterclaim in this action will not be a bar to such action.

The judgment is affirmed.


author: Carton, J. A. D.

text:
    ADELE M. SUAREZ, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JUAN J. SUAREZ, DECEASED, PLAINTIFF-APPELLANT, v. JOSEPH BERG AND GEORGE BERG, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1971
    Decided December 20, 1971.

      Before Judges Sullivan, Leonard and Carton.

      Mr. David A. Pressler argued the cause for appellant (Messrs. Olein & Pressler, attorneys).

      Mr. Marvin H. Gladstone, respondent-Guardian Ad Litem, argued the cause pro se.

   The opinion of the court was delivered by

Carton, J. A. D.

This case arises out of the settlement of a death action. Decedent’s widow applied for apportionment of the $127,500 settlement award between herself and decedent’s posthumously born daughter on the basis of 90% to her and 10% to the child. The child’s guardian ad litem had suggested that two-thirds be allocated to the widow and one-third to the child. Eejecting both proposed apportionments, the court ordered that the net balance of about $90,000 be divided equally between the widow and the infant. The court also directed that the counsel fee to be allowed to the attorney be limited to 20% of the infant’s share. Plaintiff challenges both rulings on this appeal.

On behalf of the widow it is argued that the court failed to restrict its consideration to the statutory criteria. Specifically, her counsel argues that the court should consider only the following: the support means and support needs of the infant child for food, clothing, education and other necessaries; the availability of other sources of support (one being the financial duty and ability of the surviving parent to contribute to such maintenance); the possibility of using the income generated by the corpus awarded to the infant; and the separate estate and expectancies of the infant. The widow’s attorney argues that the monetary figure representing the support needs of the child should be determined by application of these criteria and that the remaining amount of money should go to the widow.

The attorney for the widow also points to the costs of bonding on the amount awarded to the child and the expenses of making application to the court for approval of any expenditures from the child’s share required to be used for her support. He urges that the court’s determination rested upon improper speculation upon the prospective means of the widow and the possibility that the fund might be dissipated. It would be preferable, he maintains, to place the money in the hands of the mother of the child since there was no showing that she was “a person without gifts, without prudence or without capacity to manage,” or “any question about the singleness of the mother in the interest of the child or fidelity of the mother in the interests of the child.”

The guardian ad litem’s recommended apportionment of about $30,000 to his ward contemplated provision for a college education at an estimated cost of $10,000 and an allowance of about $30,000 to support the child until the time she attained her majority.

The court, in refusing to adopt either suggested method of apportionment, adverted to the statutory formula for distribution prior to the adoption of the 1960 amendment to section 4 of the Death Act. The earlier statute contained no provision for apportionment among persons entitled to take in the ease of intestacy except a stipulation limiting the distribution to dependent beneficiaries where there were both dependent and nondependent beneficiaries. Thus, under the former statutory method of distribution one-third would go to the mother and two-thirds to the child. Commenting that such a distribution would give the child too much and the mother too little, the court said:

* * " So taking it all into consideration our thought to secure and protect both parties and particularly to secure and protect the infant so she shall have the advantage of the award to her for her pecuniary loss of her father, for her future support and maintenance, training, age twenty-one, that it should be apportioned half and half, fifty per cent to the mother and fifty per cent to the infant with the infant’s share under the control of the Court. * * *

Directing that the fund be divided equally between the mother and the child, the court referred to the requirements of the present provision of section 4 of the Death Act and their interpretation in Jurman v. Samuel Braen, Inc., 47 N. J. 586, 598 (1966). Notwithstanding the fact that the court purported to follow the legislative mandate and the Supreme Court’s interpretation in Jurman, plaintiff urges that it “acted arbitrarily and without regard to judicially set guidelines.”

The 1960 amendment to section 4 reads as follows:

The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, talcing into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered. [W. J. S. A. 2A :31-4; emphasis added]

This provision implements N. J. S. A. 2A:31-5 which gives expression to the general legislative purpose of repairing the loss of reasonable expectation of pecuniary advantage suffered by the statutory beneficiaries as a result of the death of the decedent:

* * * [T]lie jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death * 4 * to the persons entitled to any intestate personal property of the decedent. [N. J. S. A. 2A :31-5]

Although it would ordinarily appear to be desirable that a hearing, as described in Jurman, supra, at 602, be conducted upon a plenary basis, with a full development of the evidence, we conclude that the salient facts concerning the family situation and the individuals involved sufficiently appear from the record to permit resolution of the issue presented. In this connection we note that these proceedings were essentially adversary in character. The guardian ad litem not only filed a complete report based upon a full inquiry into the "particular family situation and individuals involved,” but also filed a brief on this appeal in support of his recommendations.

The record discloses the following:

Decedent Juan J. Suarez, a native and citizen of Spain, but a resident of this State, died instantly on November 5, 1968 as a result of an automobile accident. He left no will. He was then 36. His wife, the plaintiff, then enceinte, was 25. They had been married less than a year. The child was born a few days after decedent’s death. Decedent had a life expectancy of 35.49 years. That of Mrs. Suarez was 51.75 years.

According to the guardian ad litem’s report, decedent had completed courses at the University of Heidelberg and at the University of Madrid, where apparently he met his wife. He received a salary of $132 per week. As a result of the death of her husband, Mrs. Suarez received $10,000 from his group insurance. There was about $700 in a joint savings account with her husband at the time of his death. She also had, in her own name, a $4,000 savings account, the source of which was her own earnings.

Mrs. Suarez is a graduate of Paterson State College and the University of Madrid. She holds a bachelor’s degree and the equivalent of a master’s. Until a short time before her husband’s death she was a teacher in the Newark public school system. Following her husband’s death and the birth of the child, she resumed her career as a teacher, earning $10,000 a year in the Newark public school system and another $2500 a year in part-time private teaching.

The guardian ad litem, who is a member of the bar of this State, indicated that plaintiff has a deep love for her child and desires that the child receive a college education. The guardian also reported that Mrs. Suarez is attractive, well-groomed, educated, intelligent and articulate. She lives with her parents in Newark, who are self-supporting. She pays the entire rent on the one-family dwelling, amounting to $135 monthly. According to her estimate, it will cost about $90 per month to feed herself and her child. Electricity and other utilities are paid by the parents, while she pays for all her clothes and that of the child. The guardian ad litemos report reflects his confidence that the child’s welfare will be a paramount consideration of the mother in the years to come. He reports that the widow is of a conservative nature and is presently seeking professional aid in investing her share of the settlement. The report gave no indication as to any future marriage plans the widow might have.

The attorney for plaintiff adds that decedent’s parents reside in Spain and are people of means. He indicates that the child may, under Spanish law, ultimately receive a considerable inheritance.

In N. J. S. A. 2A:31-4 the Legislature directed that the court make a division which results in an equitable apportionment, taking into consideration certain factors designated therein and “any other relevant factors which will contribute to a fair and equitable apportionment * * In Jurman, supra the court observed that “the statute gives the court wide discretion in arriving at a fair and equitable apportionment geared to a particular family situation and the individuals involved,” and emphasized that “the court’s primary interest should be to assure the child’s appropriate support and maintenance.” 47 N. J. at 602.

Emphasis on the respective periods of expected dependency of the widow and the child — that of the widow being almost twice that of the child —• would argue for the two-to-one ratio in favor of the widow suggested bj^ the guardian ad litem. However, our statute clearly specifies that the age of the dependents (and therefore beneficiaries’ relative periods of dependency) is only one of the factors to be considered. It should be noted also that dependency is not the sole basis for measuring damages in a case of this kind. The jury may consider other elements of pecuniary injury, such as loss of the care, guidance and advice of the father during the child’s minority. See Frasier v. Public Service Interstate Transp. Co., 244 F. 2d 668 (2 Cir. 1957); Meehan v. Central R. R. Company of New Jersey, 181 F. Supp. 594 (S. D. N. Y. 1960). It is to be expected that the parties in negotiation of the settlement of such an action would do likewise.

There is no suggestion that the mental or physical health of either dependent in this case was other than normal, and consequently this factor would not have any decisive effect on the manner of apportionment. The court was justified in considering the desirability of providing the child with a college education. Clearly, that factor is acknowledged as a proper one in this case. The facts also required that consideration be given to the affection of the mother for the child and the prospects of her continuing to support the child during her minority, as well as the possibility that the child might at some time come into an inheritance through decedent’s family.

Likewise, the court had before it, and was entitled to give significance to, information concerning the respective financial states of the decedent and his widow, including the evident superior earning capacity of the widow, whose teaching career was apparently interrupted during the brief period of their marriage.

Plaintiff asserts that the trial court did not follow the proper guidelines in making its determination, but instead based it on irrelevant speculations as to the probability of remarriage and the possibility that the fund might be dissipated. We do not so interpret the trial court’s action. It made only passing reference to such contingencies. In the order of distribution the court purported to follow the statutory mandate as interpreted in Jurman. Furthermore, under the circumstances shown by the record, particularly the lengthy period of the child’s minority, it would seem unrealistic not to give some consideration to these future possibilities in the overall picture. It cannot be said as a matter of logic that they are entirely irrelevant to the issue of “assuring] the child’s appropriate support and maintenance.” Some uncertainty necessarily inheres in any estimate of future probabilities. See McStay v. Przychocki, 10 N. J. Super. 455, 458 (App. Div. 1950), aff’d 7 N. J. 456 (1951), quoting Paulmier v. Erie R. R., 34 N. J. L. 151, 158 (Sup. Ct. 1870), where the court said: "The jury must weigh probabilities and to a large extent form their estimate of damages on conjectures and uncertainties.” That the remarriage of the surviving widow may not be considered by the jury in determining damages in a death action appears to be predicated more on the broad policy principle that the wrongdoer is not entitled to claim the benefit of any reduction in damages which might result from a possible change in status of the surviving spouse than upon its irrelevancy. Dubil v. LaBate, 52 N. J. 255 (1968); cf. McStay v. Przychocki, supra, 10 N. J. Super. at 462. Here, although the Legislature designated certain criteria, it has also directed consideration of all other “relevant factors which will contribute to a fair and equitable apportionment.”

Bearing in mind the wide range of discretion conferred by the Legislature and the admonition that a primary concern of the court in a case such as this should be to assure support and maintenance of the child, it cannot fairly be said that the court’s exercise of discretion was arbitrary. We conclude that its action comported with the guidelines set forth in the statute as interpreted by Jurman.

Uor are we persuaded that the limitation of counsel fees to 20% of the infant’s share was arbitrary. A memorandum which was issued to assist the trial courts in applying B. 4:4A-3 suggests that absent unusual circumstances counsel fees should ordinarily be limited in such cases to 25% of the infant’s share. However, there is no suggestion, let alone requirement, that such allowance should be at the maximum rate. We note further that counsel did not challenge the adequacy of the allowance at the hearing and raised this point for the first time on appeal'. Under the circumstances, we see no abuse of discretion or reason for overruling the trial court.

Affirmed.

       gomc courts have indeed emphasized the factor of dependency in making apportionments under the statutes which contain no specific guidelines. See Annotations, “Division among beneficiaries of amount awarded by jury or received in settlement upon account of wrongful death,” 14 A. L. R. 516 (1921), 112 A. L. R. 30 (1938), 171 A. L. R. 204 (1947), where numerous eases are collected which discuss this and other factors which may appropriately be considered under various types of distribution statutes.


author: Pee Cubiam.

text:
    EMMOGEANNA MARLIN, APPELLANT, v. LLOYD W. McCORKLE, COMMISSIONER, ETC., ET AL., RESPONDENTS. CONSTANCE HOLMES, APPELLANT, v. LLOYD W. McCORKLE, COMMISSIONER, ETC., ET AL., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 22, 1971
    Decided December 15, 1971.

      Before Judges Collestbe, Mintz and Ltnch.

      Mr. Robert Frank argued the cause for appellants (Mr. Eugene Rosner, of counsel and Union County Legal Services, on the brief).

      Mrs. Virginia Long Annich, Deputy Attorney General, argued the cause for respondents Lloyd W. McCorkle, Commissioner of Institutions and Agencies, and Irving J. Engelman, Director, Division of Public Welfare (Mr. George F. Kugler, Jr., Attorney General of New Jersey; Mr. Daly D. E. Tenchine, Deputy Attorney General, on the brief).
   Pee Cubiam.

In these two cases, consolidated on appeal, the respective plaintiffs appeal from fair hearing decisions of the Division of Public Welfare (Division), Department of Institutions and Agencies. Their sole contention is that N. J. S. A. 44:7-32 is unconstitutional as applied to Aid to Dependent Children (ADC) recipients.

Each plaintiff was a recipient of assistance under the ADC program. Their assistance grants were terminated by the Union County Welfare Board (Board) after each had been convicted of obtaining money from the Board by false statements.

The Marlin Case

In October 1966 plaintiff, Mrs. Marlin, was convicted on a fraud charge and placed on probation for three years. The Board denied assistance for herself and her children, relying upon N. J. S. A. 44:7-32. That statute provides that any person obtaining welfare assistance from a county welfare board by fraudulent means shall be guilty of a misdemeanor and punished accordingly, and i£his application [for assistance] may be denied or his grant withdrawn, and future grants denied at the discretion of the board.” The Board’s action was affirmed by the Division by a decision rendered on July 20, 1970 insofar as it related to the exclusion of plaintiff individually from the grant. She was employed, according to her testimony, during most of the period from the time her ADC grant was discontinued until the end of 1968. She reapplied and was granted assistance for her children only in December 1968.

On August 12, 1970 plaintiff filed her notice of appeal from the July 20, 1970 decision. Thereafter further proceedings ensued, resulting in a reinstatement of Mrs. Marlin’s grant effective April 1, 1971.

Upon a rehearing before the Division on April 13, 1971 her counsel’s only claim was that she was entitled to an assistance grant retroactive to July 20, 1970, the date of the fair hearing decision. The Division agreed and by its decision dated May 11, 1971 directed the Board to issue plaintiff an additional payment in the amount of any budgetary deficits that were not met through assistance by another program during the period August 1, 1970 to April 1, 1971.

Since the filing of this appeal Mrs. Marlin has been granted all the relief thereafter sought, namely, reinstatement as a recipient for welfare assistance and retroactive payment as requested. Hence, it may be argued that her appeal is moot and should be dismissed. Humble Oil & Refining Co. v. Wojtycha, 48 N. J. 562 (1967); Mountain Lakes Bd. of Education v. Maas, 56 N. J. Super. 245 (App. Div. 1959), aff’d o. b. 31 N. J. 537 (1960), cert. den. 363 U. S. 843, 80 S. Ct. 1613, 4 L. Ed. 2d 1727 (1960) However, it is also conceivable that plaintiff did not intend to abandon her claim as asserted in her notice of appeal. Her basic argument is that she should not have been excluded from the grant for any period of time following her conviction for fraud in October 1966. This argument is premised upon the alleged unconstitutionality of N. J. S. A. 44:7-32. In light of all the stated circumstances we proceed to consider plaintiff’s contention of constitutional infirmity. She alleges: (1) the application of N. J. S. A. 44:7-32 to ADC recipients is contrary to the Social Security Act (42 U. S. C. A. § 301 et seq.) ; (2) the application of N. J. S. A. 44:7-32 to ADC recipients is violative of the equal protection clause of the Fourteenth Amendment, and (3) N. J. S. A. 44:7-32 violates the due process clause of the Fourteenth Amendment because it arbitrarily denied plaintiff and her children ADC assistance.

We hold that the provision of the Social Security Act governing aid for dependent children permits a state to deny personal benefits to an individual convicted of welfare fraud. The ADC program is federally funded in part, and is established pursuant to 42 U. S. C. A. § 602. If an individual refuses without good cause to accept employment, his needs may be disregarded in the grant to the family but the child’s needs will be met unless it is the child who has so refused. 42 U. S. C. A. § 602(a) (19). Clearly, the needs of economically deprived children are to be given primary consideration in. the State’s implementation of a plan of assistance.

Plaintiff’s reliance upon Doe v. Shapiro, 302 F. Supp. 761 (D. Conn. 1969), is misplaced. In that case the court held that the state regulation terminating assistance to illegitimate children because the mother refused to disclose the father’s name was invalid since it was contrary to 42 U. S. C. A. § 602(a) (19), which provides only for terminating assistance to an individual and not to the whole family. Por comparable reasons, state regulations were invalidated in King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), and in Evans v. Department of Social Services, 22 Mich. App. 633, 178 N. W. 2d 173 (Ct. App. 1970). Actually, as earlier noted, the withholding of the parent’s proportionate share of the monthly grant is sanctioned by 42 U. S. C. A. § 602(a) (19). In brief, the requirement of N. J. S. A. 44:7-32 that the recipients refrain from fraud is wholly consistent with the Social Security Act.

There is no merit to the contention that the equal protection clause of the Fourteenth Amendment is violated by denying welfare benefits to an individual convicted of obtaining such assistance through fraud. Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). A statute will be upheld if any reasonable state of facts may be conceived to justify it. N. J. Chap., Amer. Inst. of Planners v. New Jersey State Board of Prof. Planners, 48 N. J. 581, 602 (1967). We find no invidious discrimination implemented by N. J. S. A. 44:7-32. The classification in question makes no differentiation among children whose parents have or have not been convicted of welfare fraud. A reasonable distinction is made between parents on welfare who have been convicted of fraud and those who have not.

We summarily dispose of plaintiff’s contention that N. J. S. A. 44:7-32 deprives her of due process of law as being devoid of any merit. The statute in question is clearly constitutional.

The Holmes Case

Plaintiff, Constance Holmes, was convicted in June 1969 in the Elizabeth Municipal Court of obtaining money from the Board by false statements. On July 2, 1969 the Board notified her that her individual ADC assistance was terminated as of July 1, 1969 due to her conviction, although public assistance continued to be made for her children. The Board took this action pursuant to N. J. S. A. 44:7-32.

Plaintiff’s conviction was reversed on March 13, 1970 by the Union County Court and she was reinstated in the grant which included her children, effective March 13, 1970. However, in an administrative fair hearing for personal retroactive benefits from July 1, 1969 to March 13, 1970 the Division on July 7, 1970 affirmed the Board’s ruling. In effect the Division concurred in the Board’s ruling that the decision to terminate inclusion of her share in the grant was discretionary with the Board under N. J. S. A. 44:7-32. After a rehearing the Division, by decision dated May 11, 1971, reaffirmed its earlier determination that the Board was not required to give assistance to plaintiff Constance Holmes for the requested period.

Although the point is not raised, we do not believe that the Board has unlimited discretionary authority to find Constance Holmes ineligible for assistance from July 1, 1969 to March 13, 1970. In our judgment N. J. S. A. 44:7-32 was designed to deny assistance to one who had obtained assistance by false statement and thereby committed a punishable misdemeanor. The reversal of the conviction on March 13, 1970 renders N. J. S. A. 44:7-32 inapplicable to her and she should have been given retroactive payment for the assistance wrongfully denied to her.

Accordingly, the Board is directed to issue plaintiff an additional payment in the amount of any budgetary deficits which were not met through assistance by another program between July 1, 1969 and March 13, 1970. In this connection we note the fair hearing decision dated July 7, 1970 alludes to testimony by Constance Holmes that during the period in question she received no such assistance.

The fair hearing decision is affirmed as to plaintiff Mrs. Marlin. The fair hearing decision as to plaintiff Constance Holmes is reversed and that proceeding is remanded to the Board for further action consistent with this opinion.


author: Consodine, J. C. C.

text:
    NADIA KYZYMA, PLAINTIFF, v. NICHOLAS KYZYMA, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 8, 1971.

      Mr. Herman Blank attorney for plaintiff.

      Mr. Vincent J. Dotoli attorney for defendant.
   Consodine, J. C. C.

(temporarily assigned). Following an uncontested divorce, plaintiff sued for partition of a tenancy in common and a joint bank account. Motion is made for summary judgment to strike the answer and counterclaim, the gist of which is to introduce into a case where the divorce was prior to the effective date of L. 1971, c. 212, a demand for equitable distribution of property acquired during the marriage under N. J. S. A. 2A:34-23.

The parties to the tenancy by the entirety became tenants in common upon the divorce. Drachenberg v. Drachenberg, 142 N. J. Eq. 127 (E. & A. 1948); Wujciak v. Wujciak, 140 N. J. Eq. 487 (Ch. 1947). The joint account on the facts was also subject to division. Forbes v. First Camden Nat. Bank & Trust Co., 25 N. J. Super. 17 (App. Div. 1953).

The power of the court to distribute equitably the property acquired by the wife (in this case) arises from L. 1971, c. 212. The language of the pertinent section, N. J. S. A. 2A:34-23, is limited by the words,

In all actions where a judgment of divorce * * * is entered * * * the court may make such award * * * to effectuate an equitable distribution of the property * * * legally * * * acquired by them or either of them during the marriage.

The power of the court under the statute is not retroactive. It is prospective only, from the effective date of the statute. This is unlike the clear import of the language of the statute in N. J. S. A. 2A:34-2 where,, concerning causes for divorce, the language is, “divorce * * * may be adjudged for the following causes heretofore or hereafter arising.” See also, Indiero v. Indiero, 116 N. J. Super. 193 (Ch. Div. 1971).

Defendant’s remedy is not under N. J. S. A. 2A:3A-23. Motion for summary judgment granted.


text:
    DOROTHY MAE BETH CHALMERS, PLAINTIFF, v. GEORGE M. CHALMERS, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 17, 1971

      Mr. Joseph T. Daly for plaintiff (Messrs. Judge, Sheeran, Mascia & Dowd, attorneys).

      Mr. Francis F. Welsh for defendant (Messrs. DeStefano & Welsh, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Plaintiff proves a case on her amended complaint in separation and defendant on his counterclaim in adultery. Defendant separated himself from plaintiff on her admission of an adulterous pregnancy.

This court has the power, where both parties make out a cause of action, to grant a decree to each N. J. S. A. 2A :34-7. Should it exercise that power on these facts? The statute is mute in this regard.

The statute (N. J. S. A. 2A:34-23) does, however, in another regard (alimony) provide that, except where judgment of divorce is granted solely on the ground of separation, the court may consider the proofs of marital fault of either party in determining an amount of alimony or maintenance that is fit, reasonable, and just. The analogy is only helpful. Which ground of those presented here should invoke the exercise of judicial discretion?

Of the grounds established in this case, adultery is the more heinous because it is abhorrent to religious beliefs, abhorrent in our literature (a history of the aeons of time and custom), and abhorrent in its very connotation — adulteration of the issue. Old Testament (King James Version), Exodus XX, 13 and 17; New Testament, Matthew V, 28; Shakespeare, King Lear, Act III, scene 6, line 18; Hawthorne, The Scarlet Letter. Moreover, it is unbelievable that the Legislature intended to penalize the fault-free marriage partner and to reward the offending one. Additionally, the ground of adultery had accrued long prior to that of separation.

There will be judgment of divorce to counterclaim on this phase of the case.

Plaintiff also seeks an award so as to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or by defendant during the marriage. N. J. S. A. 2A:34-23. Defendant argues, technically, that the statute is unconstitutional, and substantively that the pertinent portion having to do with equitable distribution of property acquired during this marriage is unconstitutional.

The former argument is predicated on N. J. Const. (1947), Art. IV, § VII, par. 4 (“* * * every law shall embrace but one object, and that shall be expressed in the title * * *”). Defendant argues that Ch. 212, L. 1971, c. 212, is entitled, “An act concerning actions for divorce and nullity of marriage, alimony, maintenance and custody of children,” and that nowhere does the title encompass remedial action in other areas of the law.

Substantively, defendant argues that while courts have the power to make their judgments prospective or retrospective in nature, citing Darrow v. Hanover Tp., 58 N. J. 410, 413 (1971); Fox v. Snow, 6 N. J. 12 (1950), the Legislature has no such power but, to the contrary, statutes must be deemed operative in futuro only, citing Penn. Greyhound Lines v. Rosenthal, 14 N. J. 372, 381 (1954); and further that statutes relating to substantive rights are construed to operate only prospectively, citing Neel v. Ball, 6 N. J. 546, 551 (1941); Nichols v. Board of Education of Jersey City, 9 N. J. 241, 248 (1952); Crucible Steel, etc. v. Polack Tyre & Rubber Co., 92 N. J. L. 221, 231 (E. & A. 1918); La Parre v. T. M. C. A., 30 N. J. 225, 229 (1959), and that the provision of the statute in contest (N. J. S. A. 2A:34-23) is violative of the 14th Amendment of the United States Constitution and of Art. I, par. 1, of our State Constitution in that it seeks social reform at the unconstitutional cost of due process.

Trial courts generally should not rule on the constitutionality of statutes.

The better practice is for the inferior court to assume that an act is constitutional until it has been passed upon by the appellate court, unless it is so clearly in contravention of the Constitution that there can be no reasonable doubt about it. [In re Woodland Avenue Drain, East Orange, 39 N. J. L. J. 362, quoted in Legg v. Passaic County, 122 N. J. L. 100 (Sup. Ct. 1939)]

The best interests of the State and its citizens would demand that appellate courts rule on the constitutionality of statutes. There, there is a greater opportunity for argument, briefs and reflection than exists at the trial bench.

I will not rule on the constitutionality of the statute before me or any portion of it. I assume that the statute in its entirety, the fruit of the labor of a study commission (Ch. 57, L. 1967, c. 57; Final Report of May 11, 1970) and of the wisdom of our Legislature, is constitutional.

N. J. S. A. 2A:34-23, in its pertinent section, is permissive. The total assets acquired during the marriage, and solely by defendant, are approximately $60,000. Of these plaintiff has $5,000. The realty was acquired by defendant, with title in him, after her confession of the extra-marital pregnancy, and there he housed plaintiff and the two children. Securities comprise $30,000.

In Minnesota, which has a property division statute not dissimilar to ours, it has been held that the delinquency of the wife is "one of the elements to be considered in determining the division of property and the amount of alimony to which she is entitled.” Borchert v. Borchert, 279 Minn. 16, 154 N. W. 2d 902 (Sup. Ct. 1967).

I will not award plaintiff any distribution of assets acquired by defendant after April 30, 1966, the approximate date of adultery. Of the assets acquired to that date and available for distribution, I will award 20% to plaintiff. No alimony has been sought; none is awarded. Support of the one child of the marriage is voluntary and generous.

Such an award being discretionary is necessarily arbitrary. However, I have taken into account that the marriage was in 1957; that the adultery occurred in 1966, the child thereof being born in early 1967; that defendant separated himself thereafter, as he had a legal right to do, Johnson v. Johnson, 102 N. J. Eq. 550 (E. & A. 1928); that the judgment of divorce defeated any claim to dower, Lavino v. Lavino, 23 N. J. 635 (1957), and that apart from the confession, blood tests excluded defendant from paternity.


author: Muir, J. C. C.

text:
    BARRY NORMAN AGENCY, INC., OF MORRIS COUNTY, A NEW JERSEY CORPORATION, PLAINTIFF, v. ANNA ELIAS, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 8, 1971.

      Mr. Aaron R. Stier for plaintiff (Messrs. Rudd, Ackerman, Breitleopf and Leibowitz, attorneys).

      Mr. Barry L. Gardner for defendant.
   Muir, J. C. C.

(temporarily assigned). This is an action to recover under an exclusive listing agreement a 7^% commission on the sale price of defendant’s home in Hackettstown, New Jersey.

Plaintiff brings this action on an agreement dated April 23, 1969, executed by defendant and which provides that six months from date plaintiff has an exclusive right to sell and is entitled to a commission in the event the property is sold or contracted to be sold by anyone during the term thereof, i. e. regardless of whether plaintiff negotiated the contract of sale, it is entitled to a real estate commission.

The uncontroverted facts indicate that in April 1969, Lawrence Epstein, a real estate salesman for plaintiff, approached defendant Mrs. Elias knowing she desired to sell her home. As the result of two meetings between Epstein and Mrs. Elias the exclusive agreement was executed by her and accepted by plaintiff through Epstein, as reflected by his signature. Defendant is illiterate. She received no education in this country or in her native land from which she emigrated in 1929.

The agreement is a one-page document. On one side house-type conditions, taxes, proposed sale price and other information are set forth. The reverse side contains the actual agreement and it is this side that defendant signed.

The agreement provides, in part:

In consideration of your listing and endeavoring to sell our property described on the reverse side hereof, the undersigned hereby authorizes you to sell said property at the price and upon the terms set forth in this authorization, or at any other price or terms the undersigned may agree to accept therefor, and upon your procuring a purchaser, agree to pay you a commission of Seven and one half (7%) percent of the purchase price thereof.
Your authority hereunder shall be sole and exclusive for a period of Six (6) months from the date, hereof, up to and including October 22, 1969.
The undersigned agree to refer to you all inquiries received regarding the purchase of said property, whether from real estate brokers, prospective purchasers or others, and further agree to exhibit the premises at reasonable hours during the period of this authorization.
Your commission shall also be considered earned in the event said property is sold or contracted to be sold by anyone during the term of your exclusive authority hereunder.
Should the buyer require mortgage financing, the undersigned will agree in the Contract of Sale that you are to have ninety days in which to arrange same. The undersigned will pay to you or to anyone designated by you, the charges of the lender amounting to 5% of the amount of the aforesaid mortgage, as a commitment and discount fee, upon your procuring such commitment, and agree to cooperate with you, prospective lenders and their representatives, and to execute all papers and instruments as required by the prospective lenders.
It is further agreed that Barry Norman Agency shall have the right to erect or place a sign on the premises for the purpose of advertising.

On May 3, 1969, ten days after signing tbe agreement, defendant telephoned Epstein and stated she did not want to pay any points to a mortgage-lending institution and not to bring anyone to the house. Plaintiff did not show the house nor did it list it for sale or do anything to effectuate a sale. Epstein testified that the management of plaintiff decided to let the exclusive run out after the May 3 telephone call.

The sale of defendant’s house was effected by another agency, which was paid a commission within the time of plaintiff’s exclusive.

A great deal of testimony centered around the explanation of the agreement by Epstein to defendant prior to her signing. He claims he explained it almost word for word and that she appeared to understand, taking out her glasses and following his explanation.

Defendant testified that Epstein did not explain the document word for word. She also testified, and was corroborated by her daughter, that Epstein said, go ahead and sign it, nothing will happen. Their testimony and manner of speech left the impression that Epstein badgered defendant into signing the agreement.

Defendant spoke with an accent. She has to be characterized as a person who did not understand all that was said to her. The court’s first impression was that she did understand, but on later analysis and inspection it became quite clear that she tried to create an impression of understanding when in fact she did not understand. Her daughter described her as someone to whom four and five explanations would have to be made before there was clear comprehension.

An exclusive listing of this nature involves a unilateral promise which, if accepted by the realtor, effectuates a contract. 1 Williston, Contracts, § 13 at 26 (1957). There is no question here that the listing agreement was accepted by plaintiff.

The relationship between broker and seller has been characterized as one involving substantial inequality of bargaining power. Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 557 (1967). Certainly it is a relationship that requires substantial scrutiny when brought before the courts.

In the normal situation where a broker is engaged to produce a buyer, the broker earns his commission when a contract is signed and the title closes. Ellsworth Dobbs, Inc. v. Johnson, supra, at 551.

The broker in this ease seeks a commission when it did not advertise the property, did not show the property to any prospective purchaser, and did not produce the purchaser.

The agreement by its terms creates an exclusive right to sell in the broker, who argues that it had the right, in light of defendant’s telephone call of May 3, to sit back and let the exclusive run out, and now come forward and collect the commission.

It has been recognized that a broker is entitled to a commission under an exclusive right to sell, even though he does not produce the buyer. Cf. Rose v. Minis, 41 N. J. Super. 538, 544 (App. Div. 1956). However, the language of that ease is dictum because it was decided on other grounds. It relies on Martin Realty Co. v. Fletcher, 103 N. J. L. 294 (Sup. Ct. 1927), which recognizes the distinction between an exclusive agency and an exclusive right to sell, and decided on the agency relationship. The facts in Bose v. Minis are similar to those at bar in that the broker did not produce the buyer.

It would seem, for the reasons of public policy enunciated in Dobbs, that the distinction between exclusive agency and exclusive right to sell should not exist when, under all the circumstances of the ease similar to the present one, no buyer is produced. It is not, however, for a trial court to make these decisions.

Defendant did revoke the exclusive right to sell by her telephone call of May 3, and even if that revocation is wrongful, the broker is only entitled to damages for breach of contract rather than for the commission claimed under the contract. Ferguson v. Bovee, 239 Iowa 775, 32 N. W. 2d 924 (Sup. Ct. 1948).

The broker’s remedy for wrongful revocation by the seller is an election between considering the contract rescinded and suing for actual damages and such profit as he can establish would have been his but for the revocation, or proceeding and, upon success in performing the contract, recovering the agreed compensation. 12 Am. Jur. 2d, Brokers, § 64 at 819. The limitation to the actual loss sustained, after the election, has been recognized in this State. Garibaldi v. Rubenstein, 99 N. J. L. 223, 225 (E. & A. 1923). It has also been recognized in other states. Walder v. Allen, 31 Wis. 2d 70, 141 N. W. 2d 867 (Sup. Ct. 1966).

Plaintiff made no attempt, nor did it prove any actual loss or prospective profit lost, and therefore has no cause for action. Having done nothing, it is entitled to nothing.


author: Toscano, J. C. C.

text:
    CHARLES HANNAN AND RUTH E. HANNAN, HIS WIFE, PLAINTIFFS, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 8, 1971.

      Messrs. Hein, Smith, Mooney & Berezin, attorneys for plaintiffs.

      Messrs. Bennett <6 Bennett, attorneys for defendant Employers Commercial Union Insurance Company.

      Messrs. Shenier, Qilady and Harwood, attorneys for defendant, Unsatisfied Claim and Judgment Eund Board.
   Toscano, J. C. C.

This is a declaratory judgment action brought by plaintiffs Charles and Ruth E. Hannan to determine the respective obligations of defendants, Employers Commercial Union Insurance Company and the Unsatisfied Claim and Judgment Fund Board to afford plaintiffs either contracted insurance coverage or uninsured motorist protection.

The facts disclose that on or about May 14, 1969 plaintiff Kuth E. Hannan sustained personal injuries as a result of a motor vehicle collision that occurred in New Jersey with an automobile operated by Carol E. Pecile and owned by Kathryn Puglisi. Both of these women are uninsured and were uninsured motorists at the time of the accident. The Unsatisfied Claim and Judgment Fund Board therefore entered an appearance on their behalf.

Plaintiffs, on the other hand, were covered at the time of the accident by a policy issued by Employers Commercial Union Insurance Company. This company had been handling the plaintiffs’ automobile insurance since at least 1965.

In March 1968 an agent of the company, Michael Fitzgerald, discussed with plaintiffs the addition of family protection coverage to their automobile policy. He explained that such coverage provided for damages arising from an accident with an uninsured motorist, but pointed out that such protection was not available for accidents that occurred in New Jersey.

On March 4, 1968 plaintiffs’ policy was effectively changed in order to include family protection coverage. When the policy was renewed for the period August 22, 1968 to August 22, 1969, this same provision was afforded plaintiffs at an additional charge of $2. Annexed to the renewed policy as a rider was an endorsement that read:

It is agreed that such insurance as is afforded by the Family Protection Coverage with respect to an automobile principally garaged in the State of New Jersey, does not apply to any accident occurring in the State of New Jersey.

The wording in the policy of the coverage itself does not expressly contain the above exclusion. However, the New Jersey statute, in effect up until 1969, that authorized insurance companies to provide for such uninsured motorists’ coverage, specifically restricted this authorization to accidents occurring outside New Jersey.

The above restriction was deleted from N. J. S. A. 17:28-1 by an amendment approved January 2, 1969, effective April 2, 1969. In addition, the amendment created two new sections, N. J. S. A. 17:28-1.1 and 1.2, which respectively require insurance companies to offer uninsured motorists’ coverage before delivering or issuing for delivery an automobile liability policy in New Jersey, and then to obtain a written election from the named insured either rejecting or accepting the required offer.

The issue raised by the instant action is whether the above cited statutory amendment is applicable to this situation so as to impose upon Employers Union liability for any payments the uninsured motorist, Carol E. Pecile, and uninsured owner, Kathryn Puglisi, would be legally responsible to make to plaintiffs. If the new statutory provisions are inapplicable, the Eund must bear this liability. It is undisputed that Employers Union has not complied with N. J. S. A. 17:28 — 1.1 and 1.2.

The mandate contained in N. J. S. A. 17:28-1.1 is that unless uninsured motorists’ coverage is offered, “No automobile liability policy or renewal of such policy * * * shall be delivered or issued for delivery in this State * * Nowhere in the statute is there a requirement that this offer be made after a policy has either been issued or delivered. Rather, it is clear that the offer is a prerequisite to issuance or delivery. The court cannot read into a statute what the Legislature did not include. As a result, the issue in this case boils down to whether N. J. S. A. 17:28 — 1.1 and 1.2 apply to policies issued or delivered prior to the effective date of April 2, 1969.

Generally, a statute which changes the settled law and relates to substantive rights is prospective only, unless there is an unequivocal expression of a contrary legislative intent. Pennsylvania Greyhound Lines v. Rosenthal, 14 N. J. 372 (1954). Here the Legislature employed the word “shall” in order to express its mandate. It is a cardinal rule that the word “shall” connotes prospective operation and cannot embrace events which have already occurred. Cassan v. Fern, 33 N. J. Super. 96 (Law Div. 1954).

The factors a court should consider, aside from the actual wording, in order to determine whether a statute should be retrospective are: (1) the previous state of the law, (2) the circumstances leading to the enactment of the statute, and (3) the evils the statute seeks to remedy. Chambers v. Toohey, 14 N. J. Misc. 780 (Sup. Ct. 1936).

Here, the previous state of the law was that insurance companies were not permitted to offer uninsured motorists’ coverage. The circumstances leading up to the enactment of the two statutes in question is that the Unsatisfied Claim and Judgment Fund was bearing the burden of providing protection to those who were injured by uninsured motorists. According to Exum v. Marrow, 112 N. J. Super. 570, 574 (Law Div. 1970), the evil remedied by the statutory change was the “financial burden relating to claims against uninsured motorists” that was being borne by the Fund.

The court in the above case explained that the plain intendment of the amendment to N. J. S. A. 17:28-1 was to relieve the Fund of some of these financial burdens. There does not appear to be any overriding public policy in favor of policyholders in general. The Legislature did not declare that all automobile liability policies must now contain uninsured motorists’ coverage. On the contrary, it provided in N. J. S. A. 17:28-1.2 for the right of policy owners to reject such coverage.

Consequently, retrospective application is not necessary to fulfill the legislative intent. On the other hand, retrospective application would unjustifiably impose obligations and liabilities upon the insurance companies whose policyholders were or are now involved in accidents that have already occurred. If a company has provided such coverage, then it must make some payment, irrespective of whether the policyholder or the uninsured motorist was at fault. However, if a company believes that it is not responsible for such coverage, it will then investigate to determine whether its policyholder was at fault. See Darrow v. Hanover Tp., 58 N. J. 410 (1971).

In light of the applicable rules of statutory interpretation, this court must conclude that N. J. S. A. 17:28-1.1 and 1.2 not only literally bespeak futurity, but also fail to reveal any underlying intentions of retroactivity. See Terracciona v. Magee, 53 N. J. Super. 557, 568 (Cty. Ct. 1959). Therefore, these statutes should be accorded prospective effect only, and are held not to obtain to the policy of insurance issued by Employers Commercial Union to plaintiffs prior to April 2, 1969.

Furthermore, due to the fact that N. J. S. A. 17:28-1 is an enabling rather than a mandatory measure, the amendment effective April 2, 1969 does not effect either the validity or vitality of the rider annexed to said insurance policy that limits the family protection coverage in question to accidents occurring outside the State of New Jersey.

Por the foregoing reasons this court is of the opinion that it is the obligation of the Unsatisfied Claim and Judgment Fund Board to afford plaintiffs uninsured motorists’ protection should they be found entitled to such payment.


author: McKenzie, J. D. C.

text:
    DANIEL SILBERG, PLAINTIFF, v. TIM LIPSCOMB ET AL., DEFENDANTS.
    District Court, Union County
    Decided December 13, 1971.

      Mr. Herbert Blaustein, attorney for plaintiff.

      Mr. Donald Smith, of the Union County Legal Services Corp., attorney for defendant.
   McKenzie, J. D. C.

In March 1971 the tenants of a number of adjoining multi-family houses containing 26 units, owned by the same landlord and located at Emma and Spring Streets in the City of Elizabeth, formed a tenants association. They communicated with the landlord, advising him of numerous complaints concerning conditions on the premises they occupied. Receiving no satisfaction, they filed a petition in this court on June 30, 1971, requesting the appointment of an administrator and the payment of their rents into court, to be used by the administrator to correct the conditions on their premises, all pursuant to N. J. S. A. 2A:42-85 et seq.

On July 12, 1971, following trial, this court held that the tenants had established their right to relief under the act.

On the same day the landlord had already prepared notices terminating all tenancies and requiring the tenants to quit the premises as of September 1. Some notices were served immediately following trial, and the remainder within the next few days. When the tenants failed to move, the landlord brought the present summary dispossess proceedings. All cases were consolidated for purpose of trial.

The question presented is whether the present proceedings are barred by N. J. S. A. 2A:42-10.10, which reads in part as follows:

No landlord of premises or units to wbicb this act is applicable shall serve a notice to quit upon any tenant or institute any action against a tenant to recover possession of premises, whether by summary dispossess proceeding, civil action for the possession of land, or otherwise:
a. As a reprisal for the tenant’s efforts to secure or enforce any rights under the lease or contract, or under the laws of the State of Now Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for the tenant’s good faith complaint to a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code or ordinance, or State law or regulation which has as its objective the regulation of premises used for dwelling purposes; or
c. As a reprisal for the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization; * * *.

The landlord testified that he plans to subdivide the property and sell the houses as two-family units. He has retained an architect, a surveyor, and an attorney to make application for the subdivision. The landlord concedes that much of the work he contemplates can be accomplished with the tenants remaining in occupancy of the premises. However, some of the work he claims will be "very difficult” to have performed while the premises are occupied, and the cost of attempting to do so would be "prohibitive,” although admittedly he did not attempt to obtain estimates of such cost. In this category he plans such work as the installation of the central heating system, replacement of ceilings, and painting and plastering. Furthermore, he points out the difficulty of showing the property to prospective purchasers, and the possibility of damage to new work before F. H. A. inspection and approval in connection with his financing.

Knowing that the court had authority to stay the issuance of the warrants for eviction for a period of six months under N. J. S. A. 2A:42-10.6, the landlord testified that he brought the present eviction suit contemplating that his subdivision proceedings, F. H. A. approval and other preliminary proceedings would require a substantial amount of time during which he would not require actual possession of the premises. His plan is to “coordinate” the eviction proceedings so that when he is ready to proceed with the actual work he can obtain possession. In this connection he states his willingness to permit the tenants to remain in possession even beyond the six months’ period following entry of judgment for possession if he is not in fact ready to commence the renovation work.

The tenants and the witnesses in their behalf failed to establish any actual malice or hostility toward them as the basis for the landlord’s eviction proceedings. Thus, while the landlord may have ignored their requests for necessary repairs and, through his agent, refused to agree to sit down at a meeting with the tenants and hear their complaints, there is no proof that he was so angered or annoyed by the actions of the tenants as to lead the court to find that he formed the specific intent of ridding himself of them for this reason. In fact, the court is satisfied from the evidence that the dominant reason giving rise to the present proceedings was the economic factors to which the landlord referred.

Does this holding, then, dispose of the issue before the court? I think not.

The word “reprisal” has been defined as “any act of retaliation,” which, in turn, is defined as “to return like for like.” Funk and Wagnall, Standard Desk Dictionary (1966 ed.)

It is obvious that in the landlord’s decision to evict the tenants, as in most important decisions made in life, more than one factor was considered and was influential in bringing about the ultimate decision. Here the court finds, as stated, that the dominant reason was the economic consideration of having the work performed at less cost. But obviously, to reach that decision on an economic basis alone, the landlord had to consider possible counterbalancing factors such as the receipt of rent while the work was in progress. How much more will the work cost with the tenants in possession as compared to the loss of rents? The landlord admits that he made no estimate of the additional cost and, in fact, had the notices prepared and served before he had even decided the full nature and extent of the work to be performed.

Mr. Giacona, the administrator appointed by the court, and a man of considerable construction experience, testified that in his opinion the work could be performed with the tenants in possession at a price not markedly higher than the cost with the tenants in possession. He also testified that he would not make the same alterations and improvements contemplated by the landlord.

However, the important fact is that the landlord did not actually weigh the possibility of performing the work with the tenants in possession. With the decision of the court appointing an administrator, as requested in the tenants’ petition, the landlord decided to evict the tenants without full consideration as to the economic feasibility or necessity of such action. Thus, while the landlord was primarily motivated by economic reasoning, proper and reasonable insofar as it went, the court is not satisfied that if the tenants had not initiated the original proceedings, further and more complete consideration by the landlord would have taken place.

Whether or not the eviction proceedings would still have followed is immaterial. The controlling finding of the court is that because of the tenants’ actions, pursuing their legal remedies in a proper manner, the landlord refused to consider from an economic standpoint alone the feasibility of proceeding with the work with the tenants in possession.

Considering the beneficial purposes of the legislation in question, and the desirable social results intended by the Legislature, it is held that where a landlord, in reaching a decision to evict a tenant, considers as one of the factors favoring that decision the activities of the tenant described in N. J. S. A. 2A :42-10.10, then the notice to quit is a "reprisal” within the meaning of the act, although other factors may also be present or even dominant. See E & E Newman Inc. v. Hallock, 116 N. J. Super. 220 (App. Div. 1971).

N. J. S. A. 2A:42-10.12 creates a presumption that, under the circumstances here present, a reprisal against the tenants is intended. The landlord can overcome such presumption only upon a showing, to the satisfaction of the court, that the decision to evict was reached independent of any consideration of the activities of the tenants protected by the statute. This the landlord has failed to do.

The present complaint will therefore be dismissed. However, the landlord is not barred from instituting future proceedings wherein he can satisfy the court as to their proper basis, as indicated above. The application of the statute in question cannot be construed to give a tenant a lease for life; the landlord still has the right to terminate a tenancy as otherwise provided by law, so long as he is able to sustain the burden of proving the lack of any intent of reprisal at the time the notice is served.

Judgment will he entered in favor of the tenants.


author: Per Curiam.

text:
    THOMAS BOLGER, PETITIONER-RESPONDENT AND CROSS-APPELLANT, v. CHRIS ANDERSON ROOFING CO., INC., RESPONDENT-APPELLANT AND CROSS-RESPONDENT, AND BELAFSKY ROOFING CO. ET AL., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 1971
    Decided December 27, 1971.
    Before Judges Confoed, Matthews- and Eritz.

      Mr. George J. Kenny argued the cause for respondent-appellant {Messrs. Hughes, MeFlroy, Connell, Foley & Geiser, attorneys).

      Mr. Irwin R. Rein argued the cause for petitioner-respondent {Messrs. Teltser & Greenberg, attorneys; Ms. Sonia Napolitano, on the brief).

      Mr. William A. Davenport argued the cause for respondent Hartford Roofing Co., Inc.

      Mr. Fveritt Rhinehart argued the cause for respondent Concrete Plank {Mr. John W. Taylor, attorney).
   Per Curiam.

As to those matters determined by the Essex County Court we affirm essentially for the reasons stated by Judge Yanoff in that court, as reported in 112 N. J. Super. 383 (1970).

As to the appeal here by respondent in respect of the amount of the allowance of counsel fee to petitioner in the County Court, we affirm. The stake involved is a significant factor in appraising the reasonableness of that fee.

Affirmed on both appeals and cross-appeal.

       We note the following opinion errors, which do not affect the substance of the reasoning of the County Court. On page 392 of 112 N. J. Super., on page 457 of 471 A. 2d, it is incorrectly stated that in the New York Amoroso case the Workmen’s Compensation Bureau
        denied recovery. In fact, it allowed recovery. And it is incorrectly stated that the Court of Appeals, Amoroso v. Tublar & Cast Products Mfg. Co., 13 N. Y. 2d 992, 244 N. Y. S. 2d 787, 194 N. E. 2d 694 reversed the Appellate Division. 17 A. D. 2d 1003, 233 N. Y. S. 2d 909. In fact, there was an affirmance.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RALPH P. ANDREANO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 15, 1971
    Decided December 22, 1971.

      Before Judges Coneord, Matthews and Fritz.

      Mr. Louis Santorf argued the cause for appellant (Messrs. Breslin & Breslin, on the brief).

      Mr. Michael B. Perle, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant was convicted under two indictments charging him with bookmaking and with maintaining a gambling resort, contrary to the provisions of N. J. S. A. 2A :112-3. He was sentenced to two to three years in State Prison, Trenton, and a $500 fine on the bookmaking indictment, and one to two years on the maintaining indictment, the sentences to run concurrently.

Briefly stated, defendant’s defense was that he was not a bookmaker but that he was merely acting as a messenger in taking the bets of one Bassant to a pari-mutuel race track as a favor.

In his charge the trial judge informed the jury:

It is a crime, however, for someone to accept a bet from another individual to place at a pari-mutuel race track. And if you believe and accept the version that has been given to you by the defendant with respect to the bookmaking charge, it would be your duty to convict him, whether you believe his version or whether you accept the version which has been advanced by the State, provided you are convinced, of course, beyond a reasonable doubt within the principles of law as I have given them to you; likewise, with respect to the charge of maintaining a place where persons may resort for gambling.
The defendant’s testimony, as I recall it, states that he did take bets on occasion from persons and did place those bets at the race tz-aclr and if the persons won, he took them their money, and if they lost, he delivered their losing tickets to them.
Mr. Bassant testified to the same effect concerning his relationship with the defendant. And I must likewise charge you that if you are convinced of the truth of the defendant’s version with respect to the maintaining a gambling resort charge, you must likewise convict him, provided you are so convinced beyond a reasonable doubt within the principles of law that I have given you.

We find the quoted portion to have been prejudicially erroneous in two respects, even after considering the charge in its entirety.

Pirst, the effect of this language is to deprive the jurors of their right to be sole judges of the facts. The jurors were not permitted to reject the judge’s instructions if their recollection and determination of the facts did not concur with his recollection, despite his assurance that they must be convinced beyond a reasonable doubt. They were unequivocally told that under either version oí the facts, i. e., that advanced by the State or that advanced by defendant, a crime had been committed. In short, we find that the trial judge directed the jury to return guilty verdicts. Such an instruction is patently erroneous. State v. Seifert, 85 N. J. L. 104 (Sup. Ct. 1913), aff'd 86 N. J. L. 706 (E. & A. 1914); State v. Jefferson, 129 N. J. L. 308, 310 (E. & A. 1943); State v. Swan, 130 N. J. L. 372, 374 (E. & A. 1943); State v. Greely, 30 N. J. Super. 180, 186 (Cty. Ct. 1954), aff'd o. b. 31 N. J. Super. 542 (App. Div. 1954).

Second, the trial judge also instructed the jury that the crime of bookmaking occurs whenever an individual accepts a bet from another to be placed at a pari-mutuel race track, irrespective of whether that individual acts as a mere conduit and gains no benefit from the transaction. We do not agree that such conduct constitutes a violation of N. J. S. A. 2A:112-3.

The provisions of N. J. S. A. 2A:112-3 contain an exception exempting pari-mutuel betting at race meetings authorized by the Constitution or any statute of this State. The statute thus contains an exception to the anti-gambling policy of this State as expressed in our gambling laws. State v. Morano, 133 N. J. L. 428 (Sup. Ct. 1945), aff'd 134 N. J. L. 295 (E. & A. 1946). The excepted activity involves the placing of bets in the pari-mutuel pool at an authorized race track. Bets placed with any other pool or individual constitute criminal activity. We are here not called upon to decide whether bets placed by one with no interest in the bet and acting purely as an intermediary for the bettor with any other pool or individual, would constitute criminal activity. We hold only in this appeal that when the bet is taken by a disinterested individual for placement at a lawful race meeting, such activity is not bookmaking within the statutory prohibition. See State v. Morano, above, State v. DeStasio, 49 N. J. 247, 253 (1967). We do not understand State v. Romeo, 43 N. J. 188, 207 (1964), cert. den. 379 U. S. 970, 85 S. Ct. 668, 13 L. Ed. 2d 563 (1965), to hold to the contrary.

In reversing these convictions we do not mean to imply that defendant’s defense to these indictments must be accepted as requiring acquittal as a matter of law. There were proofs at the trial which, if believed by the jury, could have resulted in guilty verdicts under both indictments. The jury was not required to believe that defendant’s activities performed on behalf of Bassant were as he said they were.

Defendant also argues that the trial judge erred in calling Bassant as the court’s witness after both the State and he failed to use him. We disagree and find no mistaken exercise of discretion under the circumstances presented.

The judgments of conviction are reversed and the indictments remanded for a new trial.


author: Leonard, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MELVIN RICHARDSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 6, 1971
    Decided December 23, 1971.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mr. Robert Galisson, Assistant Deputy Public Defender, on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Richard Thayer, Assistant Prosecutor, of counsel; Mr. Albert L. Gay dos, Jr., Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant pleaded guilty to a two-count indictment charging him with robbery (N. J. S. A. 2A:141-1) while having in his possession a revolver (N. J. S. A. 2A:151-5), and to an indictment charging him with unlawful possession of heroin (N. J. S. A. 24:18-4). On the first he received a 7 — 10 year State Prison sentence for the robbery and a consecutive 2-3 year sentence for being armed. On the second he was given a concurrent 2-3 year term.

Primarily, defendant asserts that the sentences were illegal because a presentence investigation and report was not made and submitted to the court before the imposition of sentence, as is mandated by R. 3:21-2.

Defendant pleaded on November 16, 1970. Two days later a probation officer visited him in j ail to interview him for a presentence investigation. Defendant indicated that he “did not choose to answer any questions, had nothing to say, and he declined to discuss the matter with this officer.” The officer submitted to the sentencing judge a “Supplemental Eeport” in which he noted solely the above facts and then stated that “[BJecause of the defendant’s reluctance to provide needed information, this Supplemental Eeport is submitted in the place of a full and complete presentence investigation.”

Defendant was sentenced on December 1, 1970. Preliminarily, the judge asked him whether he refused to answer any questions as was reported to him. Defendant asserted that the probation officer asked him if he had anything to say and he replied “No.” The court inquired whether he would then talk to the probation officer and suggested that sentencing might be deferred for the completion of a proper presentence report. However, defendant, in spite of his attorney’s advice that such course of action might be helpful to him, replied that he was not interested and that he wished to be sentenced that day without such a report. Thereupon, the above-noted sentences were imposed.

The State’s first contention is that a presentence investigation was conducted and the “Supplemental Report” filed with the court was, in view of defendant’s lack of cooperation, a compliance with R. 3:21-2 and N. J. S. A. 2A :168-3. We disagree.

“Presentence reports were originally designed to benefit the individual offenders and lessen the, severity of the penal laws. They were incident to the penological approach which sought, and still seeks, to tailor the sentence to the background and present circumstances of the offender along with the nature of his offense.” State v. Kunz, 55 N. J. 128, 132 (1969).

The investigation should make available to the sentencing judge a sound and complete knowledge of defendant’s character, background, physical and mental make-up and all other pertinent factors. Id. at 147.

N. J. S. A. 2A:168-3 mandates that the probation officers “shall fully investigate and report * * * on the circumstances of the offense, criminal record, social history and present conditions * * (Emphasis added). We are aware that there is no requirement that the officer “exhaust all possible sources of information.” State v. Vassalluzzo, 114 N. J. Super. 153, 154-155 (App. Div. 1971), aff’d 58 N. J. 227 (1971). Nevertheless, preparation of a good report requires, among other things, that he interview the accused as well as accusers, summarizing their respective versions of the affair. State v. Leckis, 79 N. J. Super. 479, 486 (App. Div. 1963). Members of a defendant’s family, his employers and associates, are other possible sources of pertinent information.

Here, the refusal of defendant to cooperate with and give a statement to the probation officer, did not excuse the latter from utilizing other sources and otherwise completing his investigation and report in the manner as above indicated, noting therein defendant’s lack of cooperation.

Alternatively, the State argues that defendant, by his conduct, waived the right to a presentence investigation and report. R. 3:21-2 makes such an investigation and report mandatory before the imposition of sentence. State v. Kunz, supra, 55 N. J. at 139. As we said in State v. Culver, 40 N. J. Super. 427 (App. Div. 1956), aff’d 23 N. J. 495 (1957):

The rule which calls for the presentence report is a mandate of the highest order. * * * While it cannot be characterized as a jurisdictional prerequisite to a valid sentence, its importance to the proper administration of criminal justice is so great that in proper cases the sentence may be vacated and a remand granted in order to secure compliance.
It must be kept in mind that the case will be rare indeed in which a prisoner can show prejudice stemming from disregard of the rule. Realization of this fact and of the important social purpose to be served by the presentence investigation, ought to stimulate an unswerving adherence to the practice. * * * [at 431-432]

The essential purpose of the report is fully to inform the sentencing judge as to all relevant matters so that the sentence imposed is suitable and just.

Considering the above-noted policy and purpose, we hold that as a general rule, a defendant cannot waive the mandatory provision that such an investigation and report must be submitted to the court before the imposition of sentence. Although circumstances may arise that would suggest an exception to this rule, we do not believe that such was the situation herein. Consequently, we conclude that criminal justice will best be served by the vacation of the sentences imposed and a remand to the trial court for resentencing following full compliance with R. 3 :21-2 and N. J. S. A. 2A :168-3. Defendant should be offered another opportunity to cooperate with the probation department, but if he does not, that fact should be noted.

In view of the above disposition it is not necessary for us to discuss defendant’s contention that the sentence was manifestly excessive.

Finally, we turn to his claim that the trial judge erred in accepting his guilty plea to possession of narcotics without inquiring into the factual basis for the plea, as is presently required by R. 3:9-2. This point lacks merit. The record indicates substantial compliance with the rule.

The judgments of conviction are affirmed, the sentences are vacated and the matter is remanded to the trial court for the imposition of new sentences, in accordance herewith.