author: Meanor, J. A. D.

text:
    JEREMIAH LYONS, PLAINTIFF-APPELLANT, v. HARTFORD INSURANCE GROUP, DEFENDANT-RESPONDENT AND KATHLEEN BERGER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF RICHARD BERGER, DECEASED, INDIVIDUALLY, AND AS GUARDIAN AD LITEM FOR BARBARA ANN BERGER, AN INFANT, JOHN BERGER, AN INFANT, KATHLEEN BERGER, AN INFANT, AND MARGARET BERGER, AN INFANT, DEFENDANT-APPELLANT AND THE CITY OF JERSEY CITY, THE FRIENDLY SONS OF THE SHILLELAGH AND THE TOWNSHIP OF MADISON, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 17, 1973
    Decided October 10, 1973.

      Before Judges Concord, Handler and Meanor.

      Mr. Theodore A. Gartner argued the cause for plaintiff-appellant (Mr. Timothy K. Madden, Director, Hudson County Legal Services, attorney).

      Mr. Eugene M. Purcell argued the cause for defendant-respondent.

      Mr. Richard E. Brennan argued the cause for defendant-appellant (Messrs. Shanley & Fisher, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

Plaintiff here is defendant in a pending wrongful death action and is an insured under a homeowner’s policy issued by defendant Hartford which declined to defend the death action on his behalf under its personal liability coverage. Plaintiff seeks by this declaratory judgment action judicial compulsion upon Hartford to defend and pay if necessary, and appeals from an adverse determination.

Plaintiff Lyons for over 20 years had been a Jersey Citj police officer. On May 15, 1971 he decided to attend an Irish feis1 being held at the Freehold Race Track. He went alone. There he consumed beer and struck up an acquaintance with one Ed Perry. At about 7 p.m. he accompanied the Perry family, first to a diner and then to the Shillelagh Club. Lyons consumed more beer. The Perrys left, but plaintiff remained, still drinking.

At approximately 3 a.m. Lyons was in front of the club’s entrance when he heard a female voice refer to coffee. This was Kathleen Berger. Lyons invited himself on the coffee trip, anticipating a visit to a diner. He entered the Berger car and sat in the right rear next to the eventual decedent, Richard Berger, husband of Kathleen, the driver. “Tiger” McFadden occupied the right front.

Instead of proceeding to a restaurant or diner, Mrs. Berger drove to Old Bridge and stopped at a private home. She rang the doorbell but did not obtain a response. Lyons then banged loudly on the door, which angered Mr. Berger.

In the car, with the occupants in the same positions, Richard Berger slapped plaintiff and McFadden punched him in the mouth, drawing blood. The car stopped and Berger and McFadden attempted to force plaintiff’s exit, which he resisted. Mrs. Berger suggested that L3UUIS be returned to the Shillelagh Club parking lot where his car was parked, and drove there.

As plaintiff left the Berger vehicle lie hurled an insulting remark at Berger and McFadden. He was walking toward his vehicle when he was struck from behind and knocked down. When down, he was again assaulted. He scrambled away, turned and drew Ms service revolver. He was facing the glare of the headlights of the Berger car. He saw two figures approaching him. Lyons fired, killing Berger. He insisted his intention was to fire a warning shot over the heads of Ms assailants but inadvertently the gun went off prematurely.

Plaintiff was the only witness at the trial in the Chancery Division. After Ms testimony, plaintiff rested and Hartford’s motion to dismiss was granted.

Under our present practice, R. 4 :37-3(b), the judicial function in assessing the sufficiency of proofs at the end of the plaintiff’s case on a motion to dismiss is the same in nonjury as in jury cases. The test to be applied is well known. Dolson v. Anastasia, 55 N. J. 2, 5-6 (1969), and cases there cited. Prior to the 1969 rules revision, a trial judge sitting nonjury was permitted to make findings adverse to the plaintiff at the close of his proofs and dismiss even though a prima facie case had been established. This is now no longer possible.

The trial judge did not apply the correct standard on the motion to dismiss. Instead of viewing the proofs from the point of accepting the plaintiff’s testimony as true, giving him the benefit of all legitimate inferences therefrom and rejecting all unfavorable evidence, and permissible conclusions, the trial judge proceeded to make findings of fact on the motion. lie concluded that Lyons was drunk, a fact not admitted beyond plaintiff’s statement that he was “feeling the beer.” The judge also said: “I do not attach credibility to Ms testimonj' that the discharge of the gun itself was an accident or premature.” Credibility should have played no part in the determination the court was then called upon to make.

It is obvious, however, that we should affirm if the judgment was correct though the reasoning in error. On the other hand, if there is any legitimate view of the proofs that would sustain a judgment for plaintiff, we must reverse. Assessing the evidence most favorably to Lyons, a factfinder could but would not be compelled to reach the following conclusions, (see Ferdinand v. Agricultural Ins. Co. of Watertown, N. Y., 22 N. J. 482 (1956)) :

1. At the time of the shooting, Lyons was dazed from a combination of alcohol and beating;

2. He was in legitimate fear of grave bodily harm from his two assailants;

3. He drew his gun with an intent to fire a warning shot over their heads and without an intent to kill or inflict bodily harm;

4. Inadvertently the gun fired before he had raised it to the point where he intended to fire, causing Berger’s death.

The coverage clauses pertinent are:

COVERAGE E — PERSONAL LIABILITY
This Company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * *' * to which this insurance applies, caused by an occurrence * :i" * s¡< !¡C
EXCLUSIONS
This policy does not apply:
1. Under Coverage E — Personal Liability * * *
* 5^ *
f. to bodily injury * * 4 which is either expected or intended from the standpoint of the insured. * * *
>'r
ADDITIONAL DEFINITIONS
H: *
5. “occurrence” means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury * * *

Unfortunately, the case was tried without reference to the exclusion clause. Hartford’s position is that Lyons, under the circumstances, is not within its coverage since the shooting of Berger was not an “occurrence” as that term is defined.

New Jersey, public policy denies insurance indemnity for the civil consequences of one’s own intentional wrongdoing. Malanga v. Manufacturers Cas. Ins. Co., 28 N. J. 220, 225 (1958); Ruvolo v. American Cas. Co., 39 N. J. 490, 496 (1963). The exclusion here probably has no more effect than that which the law would imply in its absence. In any event, it is impossible for us to ignore the exclusion for it may be raised on remand and virtually all of the relevant reported decisions deal with such a clause or one of similar wording.

The general rule is that coverage exists under insuring and exclusion clauses identical or similar to the ones involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted. Thus, in Smith v. Moran, 61 Ill. App. 2d 157, 209 N. E. 2d 18 (App. Ct. 1965), the insured, angry with one Dolores Nelson, fired multiple shots in her direction. The first shot struck Nelson; the second hit plaintiff, a co-employee of Nelson with whom the insured had no quarrel and who received a shot intended for Nelson. The policy excluded coverage for injury “caused intentionally by or at the direction of the Insured.” Pointing out that injury to plaintiff was unintended and distinguishing between intentional acts and intended results, coverage was held to exist.

There are many decisions making this distinction, uniformly holding that there is coverage for unintended results. For example: Jackson v. Lajaunie, 253 So. 2d 540 (La. Ct. App. 1971) (plaintiff shot in chest during horseplay with gun aimed at him thought to contain blanks); Morrill v. Gallagher, 370 Mich. 578, 122 N. W. 2d 687 (Sup. Ct. 1963) (insured threw lighted firecracker into room with plaintiff inside intending to frighten but instead causing personal injury); Lumbermens Mut. I. Co., Mansfield, Ohio v. Blackburn, 477 P. 2d 62 (Okl. Sup. Ct. 1970) (rock thrown without intent to injure; court held that to preclude coverage there must be an intent to inflict the injury actually inflicted upon the person intended to be injured and not another; Smith v. Moran, supra, cited with approval); Putman v. Zeluff, 372 Mich. 553, 127 N. W. 2d 374 (Sup. Ct. 1964) (boy in woods fearful of wild dogs fired warning shot at three dogs approaching him; two dogs fled but plaintiff’s valuable hunting dog did not; insured fired toward oncoming dog intending to stop but not destroy it; dog killed; coverage found); Walker v. Champion, 274 So. 2d 840 (La. Ct. App. 1973) (apparently contained exclusion clause identical to case at hand; youthful horseplay in throwing bottles; plaintiff’s loss of eye “neither expected nor intended”).

On the other hand, where the intentional act has resulted in intended injury, even where the injury inflicted is different or more severe than intended, coverage has been denied. In Terito v. McAndrew, 246 So. 2d 235 (La. Ct. App. 1971), the insured used loud and profane language in speaking to a barmaid. Plaintiff, also seated at the bar, verbally remonstrated. The insured swung at plaintiff intending to “shut him up,” missed his punch, fell into plaintiff, knocked him down and fractured his knee. The clauses involved in Terito were nearly identical to those in the present matter. In denying coverage, the court said:

If McAndrew would be found liable for the incident, it would clearly be to his benefit (and to Terito’s, from a standpoint of financial recovery) to deny that any intent was possible due to intoxication and to proceed to collect from the insurer. Such an admission in the answer to- the main demand is not binding on the insurer denying coverage on the theory that the act was intended. In fact, McAndrew denied at trial that he was intoxicated and Mrs. Watson corroborated that fact. He admitted that he intended to hit Terito to shut the latter’s mouth. Even if he was intoxicated, as found by the trial judge, he obviously was able to form the necessary intent to commit a battery. Fire and Casualty contends that such an incident cannot be called an “accident”, within the policy terms, and must be an intentional act. Thus, all direct and natural consequences flowing therefrom are considered in fundamental tort law to have been intended by the actor. We agree with this contention, for it would indeed be illogical to say that an intentional attack may be come an “accident” if the resulting injury is not one specifically contemplated by the attacker, [at 239]

Other cases denying coverage in instances of actually intended injury are: MacDonald v. United Pacific Ins. Co., 210 Or. 395, 311 P. 2d 425 (Sup. Ct. 1957) (insured committed assault and battery); Stout v. Grain Dealers Mut. Ins. Co., 307 F. 2d 521 (4 Cir. 1962) (insured shot fleeing peeping tom). See also, Brasseaux v. Girouard, 269 So. 2d 590 (La. Ct. App. 1972), which discusses the impact of self-defense where coverage is excluded for intentionally caused injuries.

Thus, the distinction between intended and unintended results of intentional acts is well recognized. The trial court did not apply this principle. The oral opinion below can be construed as holding that if Lyons intended to fire without any specific intent to cause death or bodily harm, coverage did not exist. Such a principle is at war with the authorities discussed here. The short of it is, if Lyons intended to maim or kill Berger he has no coverage. If his intent was, as he says, to fire a warning shot, but he unintentionally fired prematurely, coverage exists.

The usual exclusion clause found in the cases we have cited excludes coverage for injury “caused intentionally by or at the direction of the insured.” We have referred twice in this opinion to cases which appeared to have the exclusion contained in the present policy — one that excludes coverage for “bodily injury * * * which is either expected or intended from the standpoint of the insured.” Under the circumstances present, either clause supports the result we have reached.

Citing Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504 (1965), Lyons argues that Hartford is bound to defend him because the complaint in the death action contains allegations of negligently inflicted death. While it may be the general rule that an insurer’s duty to defend is ascertained by comparing complaint and policy to determine if allegations made are within coverage, this case represents a necessary exception. Hartford cannot defend without being put in a conflict of interests. Burd v. Sussex Mut. Ins. Co., 56 N. J. 383 (1970); Stout v. Grain Dealers Mut. Ins. Co., supra. The present action for declaratory relief is proper at this time.

The record shows that Hartford moved before trial for transfer to the Law Division or in the alternative for jury trial. This was denied on the merits, the court holding that the relief sought was primarily equitable. At oral argument Hartford requested that if the case were remanded we reverse this ruling. We cannot consider the point, for it can only be brought here by cross-appeal and none has been filed. Franklin Discount Co. v. Ford, 27 N. J. 473, 491 (1958).

The judgment below is reversed and the matter is remanded for a new trial in accordance with this opinion.

        Webster’s New International Dictionary, (2d ed. unabridg., 1947) defines “feis” as follows:
      a. A convention or assembly in ancient Ireland at which laws were promulgated and intellectual, artistic, and physical competitions held. The greatest of these conventions was the triennal Feis of Tara.
      b. A Gaelic literary or musical meeting, esp. in Ireland.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LEONARD KATZ AND NANCY KATZ, PLAINTIFFS-APPELLANTS, v. BOARD OF TRUSTEES OF GLOUCESTER COUNTY COLLEGE AND WILLIAM L. APETZ, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 10, 1973
    Decided October 11, 1973.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. William S. Greenberg argued the cause for the appellants (Messrs. Sterns and Greenberg, attorneys; Messrs. Richard Weinrath and Michael J. Herbert, on the brief).

      Mr. Martin F. Caulfield argued the cause for the respondents (Messrs. Hannold, Caulfield & Zamal, attorneys.)
   Per Curiam.

It no longer is open to question that a public agency may neither dismiss from employment nor withhold renewal of a contract of employment from a nontenured public employee for a reason or reasons founded upon the exercise by him of a constitutionally protected right. Burlington County Evergreen Pk. Mental Hosp. v. Cooper, 56 N. J. 579 (1970); Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U. S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). And where, as here, the employee alleges that the agency’s failure to renew his employment contract resulted from certain activities by him, which activities are within the area protected by the State or Federal Constitutions, or both, and the employee has made some showing that the activities were such that they may have been a significant element in the decision of the agency not to renew or not to retain, the employee is entitled to a “full exploration of this issue.” Perry v. Sindermann, supra, at 598, 92 S. Ct. 2694; Winston v. Bd. of Ed., South Plainfield, 125 N. J. Super. 131 (App. Div. 1973).

The inquiry in these circumstances, however, is solely one of fact and, as such, is a matter for initial hearing and determination by the administrative officials and agencies charged with and peculiarly qualified for the performance of such function. Schults v. Bd. of Ed., Teaneck, 86 N. J. Super. 29 (App. Div. 1964), aff’d 45 N. J. 2 (1965); Winston v. Bd. of Ed., South Plainfield, supra; N. J. S. A. 18A:6-27.

Accordingly, the judgment of the Chancery Division is reversed; the claim of the plaintiff Leonard Katz that he was denied contract renewal for constitutionally impermissible reasons and seeking reinstatement, is transferred to the Chancellor of the Department of Higher Education for hearing and determination R. 2 :2-3(a), and the claims for damages asserted by plaintiffs are dismissed, without prejudice. No costs to any parties. Jurisdiction is not retained.


author: Trautwein, J. A. D.

text:
    FABLOK MILLS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. COCKER MACHINE & FOUNDRY COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 29, 1973
    Decided October 12, 1978.

      Before Judges Fritz, Lynch and Trautwein.

      Messrs. Bilder, Silver & Lawrence, attorneys for appellant (Mr. Elliot A. Lawrence, of counsel and on the brief).

      Mr. Israel B. Greene, attorney for respondent and cross-appellant and on the brief.
   Trautwein, J. A. D.

Plaintiff Fablok Mills, Inc. (Fablok) commenced this action with a four-count complaint involving its purchase of ten knitting machines sold by defendant Cocker Machine & Foundry Co. (Cocker) seeking rescission, damages for breach of warranties of merchantability and fitness for the use intended, and fraud. After filing an answer defendant Cocker moved for summary judgment which motion was denied. Thereafter an amended motion for summary judgment was filed by defendant and granted. Fablok Mills, Inc. v. Cocker Machine & Foundry Co., 120 N. J. Super. 350 (Law Div. 1972).

Pacts, here relevant, follow. Plaintiff Fablok is engaged in the business of producing knitted fabrics. Plaintiff purchased ten knitting machines from defendant for a total price of $153,550, between September 15, 1964 and June 30, 1965. Shortly after the first two machines were delivered on September 15, 1964 plaintiff notified defendant that the machines were operating slowly, producing low quality and damaged fabric, leaking oil, etc. Despite these difficulties plaintiff continued to order and accepted delivery of eight additional machines, alleging similar defects thereafter. Defendant attempted to remedy the problems plaintiff complained of but was unable to do so.

The unsuccessful efforts to repair the machines continued until May 23, 1967. On this date plaintiff wrote to defendant revoking its acceptance and requested that defendant take back the machines and refund the purchase price of $15,615 per machine. Plaintiff bottomed his revocation of acceptance on the improper performance of the machines. Defendant refused either to take the machines back or refund the purchase price. Plaintiff continued to use some of the machines, replacing others and putting them in storage.

The trial judge ruled that under N. J. S. A. 12A :2—606 plaintiff, by its conduct, had accepted the goods despite their nonconformity. Furthermore, that by delaying for two years before attempting to revoke its acceptance, plaintiff rendered such a revocation ineffective as the duration of the delay was unreasonable as a matter of law under N. J. S. A. 12A :2-602(1) in view of the circumstances, i. e., machines were subject to wear and tear. Alternatively, the trial judge ruled that even if the revocation was effective, plaintiff’s continued use of the machines after the revocation was wrongful against the seller and barred the remedy of rescission, N. J. S. A. 12A :2-602(2) (a). The judge further held that the exercise of such ownership bound the plaintiff to its acceptance and constituted a waiver of all warranties or breaches thereof. Moreover, the trial judge ruled that plaintiff’s election of the remedy of rescission barred it from seeking damages on a benefit of the bargain basis. Finally, the judge dismissed the count alleging fraudulent misrepresentations on the theory that since the remedies for fraud and nonfraudulent breach are co-extensive then, where plaintiff’s acceptance and continued use of goods after a purported revocation barred a claim for damages arising out of a possible breach of warranty, these same facts barred any claim for damages arising out of fraudulent misrepresentations.

There is no question but that the buyer in the present case accepted the goods as he retained the machines in spite of their nonconformity. N. J. S. A. 12A :2-606(1) (a). However, the Uniform Commercial Code also provides that a buyer may revoke his acceptance within a reasonable time where the nonconformity of the goods substantially impairs their value to him. N. J. S. A. 12A :2-608.

In the case at bar the trial judge ruled that a two-year delay was unreasonable as a matter of law. We disagree. N. J. S. A. 12A :1-204 provides that reasonableness in connection with the time within which action is taken depends on the nature, purpose and circumstances of such action. Thus, whether the .buyer has lost the right to revoke his acceptance is a question of fact to be determined by the trier of fact. See 2 Anderson, Uniform Commercial Code Text, Cases, Commentary (2d ed. 1971), at 242.

In the present case the facts indicate that seller did attempt to remedy the defects in these machines on numerous occasions. Defendant-seller’s conduct in this regard may have reasonably induced the buyer to continue to use the goods and to make payments in the belief that the defects complained of would be cured by these repairs. This question is clearly for a jury to decide as N. J. S. A. 12A :2-608 does not set forth any hard and fast rule as to whether a revocation is timely. Rather, what is a reasonable time in this context is a matter of fact to be determined by a jury under the particular circumstances of the case. Trailmobile Division of Pullman, Inc. v. Jones, 118 Ga. App. 472, 164 S. E. 2d 346, 348 (App. Ct. 1969). Conceivably a jury might conclude that the plaintiff-buyer was lulled into inaction by the attempts of defendant to repair the machines and that the subsequent revocation more than two years later was reasonable under these circumstances.

A further question is presented as to whether plaintiff Fablok’s continued use of the machines after revocation constitutes a waiver of or bar to the remedy of rescission. The Code provides that a buyer who revokes acceptance has the same rights and duties with regard to the goods involved as if he had rejected them. N. J. S. A. 12A :2—608 (3). Thus, if the seller gives no instructions within a reasonable time after notification of rejection the buyer may (1) store the rejected goods for the seller’s account; or (2) reship them to the seller; or (3) resell them for the seller’s account. (N. J. S. A. 12A :2-604) In the present case the buyer continued to use the goods, and arguably his conduct was wrongful against the seller and constituted a waiver of revocation. Undoubtedly under the pre-Code law rescission was barred where the buyer continued to use the goods. Kelleher v. Detroit Motors, 52 N. J. Super. 247 (App. Div. 1958); Walter E. Heller & Company v. Hammond, 52 N. J. Super. 332 (App. Div. 1958), mod. 29 N. J. 589 (1959). However the Uniform Comment to this section of the Code (N. J. S. A. 12A :2-604) declares that the purpose of this section is

;i" * * to accord all reasonable leeway to a rightfully rejecting buyer acting in good faith. The listing of what the buyer may do in the absence of instructions from the seller is intended to be not exhaustive but merely illustrative.

Furthermore, avoidance of an absolute rule against continued use is counseled by the overriding requirement of reasonableness which permeates the Code. We conceive that in certain situations continued use of goods by the buyer may be the most appropriate means oí achieving mitigation, i. e., where the buyer is unable to purchase a suitable substitute for the goods. An analogous problem confronted the court in Minsel v. El Rancho Mobile Home Center, Inc., 32 Mich. App. 10, 188 N. W. 2d 9 (App. Ct. 1971). In Minsel the buyer sought rescission of a contract for the purchase of a mobile home. Plaintiff purchased the mobile home on July 16, 1968 and actually moved into it on or about July 28 of the same year. The defendant seller failed to remedy numerous defects and plaintiffs tendered notice of their intent to rescind the contract on September 11, 1968. Plaintiff decided to move out of the trailer but encountered difficulty in finding another place to live. As a result, plaintiff did not vacate the mobile home until November 1, 1968, nearly six weeks after revocation. 188 N. W. 2d at 10. The court ruled that the continued use of the goods by plaintiff subsequent to the notice of rescission did not negate the claim of revocation of acceptance where the defendants failed (1) to contact plaintiffs in connection with the removal, (2) to show how the delay prejudiced them, (3) to show that the delay could have been avoided. (188 N. W. 2d at 11-12) In the present case it appears the defendant seller failed to contact the buyer concerning removal. In addition, defendant does not show how the continued use resulted in prejudice. Furthermore, defendant does not suggest that plaintiff acted in bad faith or that the continued use could have been avoided. To the contrary, it appears that defendant-seller was the only domestic manufacturer of these particular types of machines and that plaintiff-buyer was confronted with the grim choice of either continuing to use some of the machines or going out of business. Thus, to hold, as a matter of law, that the buyer in these circumstances was required to discontinue his use of the goods and destroy his entire business would be contrary to the Code’s rule of reasonableness and its underlying purposes and policies. We again conclude that the reasonableness of plaintiff’s continued use of the machines, after revocation, is a question of fact to bo resolved by a jury referable to the issue of waiver.

The trial court also ruled that the continued use of the goods amounted to a waiver of any claim for breach of warranties. We disagree. N. J. S. A. 12A :2-714(1) permits a buyer who has accepted goods to obtain damages for any breach of warranty. This point is made explicit by N. J. S. A. 12A :2-607(2) which provides that acceptance precludes rejection of goods but “does not of itself impair any other remedy provided by this chapter for non-conformity.” In this connection we decline to follow the decision, relied upon by the trial court, in Ingle v. Marked Tree Equipment Co., 244 Ark. 1166, 428 S. W. 2d 286 (1968).

Defendant asserts that no warranties exist. While this contention was not raised below, we feel it deserves comment in view of our ultimate decision. The existence of express warranties appears to be precluded by the blanket disclaimer on the sales form here employed. However, this; clause negating express oral warranties may be inoperative' under N. J. S. A. 12A:2-316 inasmuch as oral statements; are effectively obliterated by such a disclaimer only if the parol evidence offered is inconsistent with the disclaimer. Comment, Uniform Commercial Code, N. J. S. A. 12A:2-202, N. J. S. A. 12A:2-316. Likewise, as regards the warranty o£ fitness for the use intended, the sales form used appears to fall short of the conspicuous writing requirement of N. J. S. A. 12A:2-316(2). Thus, the disclaimer may be inoperative in this respect. Also, to disclaim the warranty of merchantability, the disclaimer must mention merchantability,, and this disclaimer does not. N. J. S. A. 12A:2-316(2). Although a disclaimer avoiding the warranty of merchantability may be oral, defendant has made no allegation that an oral’ disclaimer was in fact made. In sum, fact issues are clearly present as to the existence of warranties.

We believe the trial judge erred in concluding-that plaintiff waived the remedy of damages for breach by seeking a return of the purchase price. When the trial court rejected the claim for the return of the purchase price (rescission) under N. J. S. A. 12A:2-711 there still remained a. count seeking damages as computed on a value received basis. N. J. S. A. 12A:2-714. Rescission and damages are alternative remedies, and unless a contrary intention clearly appears, an action for rescission may not be construed as a renunciation of any claim for damages. N. J. S. A. 12A:2-720 provides:

Unless the contrary intention clearly appears, expressions of ‘cancellation’ or ‘rescission’ of the contract or the like shall not be construed as a renunciation or discharge of any claim in damages for an antecedent breach.

However, once recovery is permitted either through rescission or by way of damages, the alternative remedy must be dropped. Walter E. Heller & Co., v. Hammond, supra, at 337 of 52 N. J. Super. Therefore, the defense of fatal election of remedy must fail in this case since there was no conscious choice by plaintiff to elect rescission to the exclusion of damages. Ray v. Beneficial Finance Co., 92 N. J. Super. 519 (Ch. Div. 1966).

The trial judge concluded that waiver of the warranty action also amounted to a waiver of the claim based on fraud since the remedies for fraud and breach of warranty are coextensive under the code. As previously noted, the trial judge was mistaken in his conclusion that plaintiff’s initial reliance on the remedy of rescission served to bar the warranty counts of the complaint. N. J. S. A. 12A :2-607(2), N. J. S. A. 12A :2-714. Thus, insofar as the striking of the fraud claim was premised on the invalidity of the warranty claim, the fraud claim was improperly held nugatory. The trial judge read N. J. S. A. 12A :2-720 and N. J. S. A. 12A :2-721 as making fraud and warranty remedies co-extensive. The latter section of the Code does indeed overturn the common law rules by which the remedies for fraud had been more circumscribed than the modern remedy for breach of warranty. See Comment to §2—721, Uniform Commercial Code. However, contrary to the trial judge’s opinion, this section does not limit fraud claims where efforts to rescind have met with failure. The intendment of §2-720 and §2-721 was to insure that reliance on the remedy of rescission would not serve as a bar to a claim for damages or other remedy. In any event, there was no genuine issue as to any material fact in connection with the claim for fraud. The only proof of fraud presented by Eablok was contained in its pleadings, which was rebutted by defendant Cocker’s uncontradicted affidavits. The trial judge therefore properly granted summary judgment in favor of defendant Cocker on the fraud claim. Rankin v. Sowinski, 119 N. J. Super. 393, 399-400 (App. Div. 1972).

We now deal with questions raised by defendant Cocker’s cross-appeal. They concern rulings made prior to the grant of motion for summary judgment in favor of defendant. Defendant contends that the trial court erred in vacating its prior order dismissing plaintiff’s complaint for failure to answer interrogatories in that there was noncompliance with R. 4:23-5 (payment of a $50 fee to the county clerk). The fact of nonpayment is not disputed by plaintiff. However, we decline to dismiss at this juncture because where noncomplianee with the rules can be remedied by other measures, dismissal ordinarily will not be required. Savoia v. F. W. Woolworth Co., 88 N. J. Super. 153 (App. Div. 1965). Plaintiff is hereby ordered to pay $50 to the county clerk.

Defendant also argues that the trial court, on its first motion for summary judgment, should have dismissed the action as to the first four machines which were purchased. The instant suit, concerning the ten machines, was instituted on February 18, 1969. The first two machines were delivered on September 15, 1964. Two- more were delivered on November 17, 1964. All the other machines were received by Fablok after February 18, 1965.

The statute of limitations concerning sales transactions is set forth in N. J. S. A. 12A :2-725 as follows:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued * * *.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. [Emphasis added]

In the present case it is clear that no warranty explicitly extended to future performance. It is equally clear that the discovery of the breach as to the first four machines need not have awaited the future performance as to the other six machines. The defects in the first four machines became apparent within several weeks of their arrival. Plaintiff failed to institute suit within four years of the date of delivery and is therefore barred from suit as to these four machines. It may be argued that defendant’s attempts to cure the defects had the effect of tolling the statute of limitations. The only reported decision which we have found on this point, Binkley Co. v. Teledyne Mid-America Corp., 333 F. Supp. 1183, 1187 (D. C. Mo. 1971), aff’d 460 F. 2d 276 (8 Cir. 1972), holds that under Missouri law attempts to repair do not toll the operation of § 2-725 of the Code. However, even assuming that the repair attempts did toll the statute of limitations, plaintiff’s subsequent lack of diligence bars plaintiff from relying on such a theory. Plaintiff’s rescission letter was written on May 23, 1967, 16 months before the expiration of the statute of limitations as to the first machine delivered. Instead of instituting suit within this period, plaintiff waited until February 2, 1969, nearly 21 months after it sought to rescind. This inexcusable delay bars plaintiff from relying on defendant’s conduct as a defense to the statute of limitations. See generally, Annotation, “Plaintiff’s Diligence as Affecting His Eight to Have Defendant Estopped from Pleading the Statute of Limitations,” 44 A. L. R. 3d 760, 764 (1972).

The decision of the trial court is reversed and, consistent with the foregoing, the matter is remanded for a new trial. The new trial shall exclude claims relating to the four machines.


author: Bischoff, J. S. C.,

text:
    DONNA BOILEAU, DONNA BOILEAU AS ADMINISTRATRIX OF THE ESTATE OF MAURICE BOILEAU, AND DONNA BOILEAU AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MAURICE BOILEAU, PLAINTIFF-APPELLANT, v. LOUIS DE CECCO AND MARION DE CECCO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted September 25, 1973
    Decided October 16, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Messrs. Moss, Thatcher & Moss, attorneys for appellant (Mr. Leonard W. Moss, of counsel and on the brief).

      Messrs. Kisselman, Deighan, Montano & Summers, attorneys for respondents (Mr. Arthur Montano, of counsel; Mr. Gary L. Jakob, on the brief).
   The opinion of the court was delivered by

Bischoff, J. S. C.,

Temporarily Assigned. Plaintiff, as administratix ad prosequendum of the estate of hex deceased husband, appeals from a summary judgment dismissing a wrongful death action brought by her.

Plaintiff's decedent and defendant Louis DeCecco on September 5, 1910 went to a football game with other men. DeCecco lived in a residential area in Blackwood and had a swimming pool in his backyard. It was a hot day, and defendant later invited his companions to take a swim in his pool. Plaintiff's decedent apparently dove into the shallow end of the pool, fractured his neck and eventually died of the injuries sustained. This action followed, charging defendant with various acts of negligence growing out of the construction and maintenance of the pool.

Defendant, in addition to other defenses, pleaded immunity under N. J. S. A. 2A :42A-3. A motion for summary judgment on that basis was granted, and it is from that judgment that this appeal is prosecuted.

The narrow issue presented is whether the statute gives immunity to the owner, lessee or occupant of property in a residential area for injuries or death growing out of the use of a swimming pool located thereon.

The statute in question, N. J. S. A. 2A :42A-3, reads as follows:

Except as provided in section 3 of this act:
a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23 :7-7 of the Revised Statutes, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes ;
b. An owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

Plaintiff argues the statute was not intended to apply to lands in a residential area, but that the immunity granted thereby is restricted to the rural setting.

Defendant, on the other hand, contends that the plain, unrestricted use of the word “swimming” in the definition of “sport and recreational” activities (N. J. S. A. 2A :42A-2) confers immunity in this situation. This statute replaced N. J. S. A. 2A :42A-1 which conferred the immunity upon the “landowner of agricultural lands or woodlands.”

Our task is to ascertain the intent of the Legislature and the scope of immunity granted by the present statute. The statute has been interpreted in three reported decisions. In the first two cases the court, in its search for the legislative intent of the statute, was troubled by the dearth of legislative history on the statute. O’Connell v. Forest Hill Field Club, 119 N. J. Super. 317 (Law Div. 1972), and Scheck v. Houdaille Const. Materials, Inc., 121 N. J. Super. 335 (Law Div. 1972). Both these decisions dealt with an infant-trespasser in a nonresidential setting (O’Connell, golf course; Schech, property of constructions materials corporation), and in both the court concluded that the statute did not extend liability immunity to the landowners.

The third case, Villanova v. Am. Fed. of Musicians, 123 N. J. Super. 57 (App. Div. 1973), involved injuries sustained by a musician who fell over boulders and debris while approaching a bandstand on the premises of the Essex County Park Commission. The court held that a band concert was not within the scope of the activities protected by the statute.

The trend in public policy has been to expand the areas of tort liability and to eliminate islands of immunity.

We cannot presume a grant of tort immunity to the owners of thousands of swimming pools in residential areas until we determine that it was the intent of the Legislature at the time of enactment of the statute to do so. It is significant that N. J. S. A. 2A :42A-3 refers to N. J. S. A. 23 :7-7. This cited statute refers to the manner in which a landowner should post “no trespassing” notices ii he wishes to have the sanction of the law behind him to prosecute hunters and fishermen who trespass upon his iand. See N. J. S. A. 23 :7-1. Such internal reference lends substance to the conclusion that the Legislature was referring to rural or semi-rural tracts of land in the statute in question.

Similarly, the “sport and recreational activities” enumerated in N. J. S. A. 2A :42A-2:

s"' * * hunting, fisliing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing and any other outdoor sport, game and recreational activity including practice and instruction in any thereof * * *■

suggests tliis conclusion. The activities listed are for the most part those conducted in the true outdoors, not in someone’s backyard. It is true that “swimming” is included in this list, hut it should be considered in the context in which it is found.

In Martell v. Lane, 22 N. J. 110, 117 (1956), the Supreme Court said the meaning of words may be indicated or controlled by those with which they are associated.

It is a fundamental rule in the construction of statutes that associated words explain and limit each other. The meaning of a doubtful word or phrase in a statute may be ascertained by a consideration of the company in which it is found and the meaning of the words which are associated with it. McCaffrey, Statutory Construction, § 14 at 40-41 (1953). See Sutherland, Statutory Construction (4th ed. Sands, 1973), § 47.16 at 101.

Considering the progeny of the present statute together with the above two factors, we hold that the legislative change of the term “agricultural lands or woodlands” to “premises” was not intended to enlarge the protected class of landowners to homeowners in suburbia. The change was intended to better define, and perhaps somewhat broaden, the protected class originally specified.

The statute being in derogation of the common law and public policy should be strictly construed. A statute can change the common law but the intent of the Legislature to do so must be clearly and plainly expressed. Board of Education, Union Beach v. N. J. E. A., 53 N. J. 29, 46 (1968); DeFazio v. Haven S. & L. Ass’n, 22 N. J. 511, 519 (1956); Foy v. Dayko, 82 N. J. Super. 8 (1964).

We hold that the statute does not confer immunity upon defendant from plaintiff’s claim.

Judgment is reversed.


text:
    LOUISA LOPEZ AND GLORIA SANTIAGO, PLAINTIFFS-APPELLANTS, v. RENALDO SANTIAGO AND NORMAN SERLIN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted October 1, 1973
    Decided October 16, 1973.

      Before Judges Collester, Lynch and Mehler.

      Messrs. Jacobson & Silverman, attorneys for appellants (Mr. George Duggan, of counsel).

      Messrs. Webb and McDermott, attorneys for respondents and Unsatisfied Claim and Judgment Fund (Mr. John P. McGee, of counsel and on the brief).
   Per Curiam.

Plaintiff Gloria Santiago (Gloria), whose real name is Gloria Lopez, was injured while a passenger in a vehicle owned by Eenaldo Santiago when the car collided with a motor vehicle owned and operated by Norman Serlin. Both cars were uninsured. She recovered a judgment for $550 and thereafter moved to compel payment by the Unsatisfied Claim and Judgment Eund. The Eund opposed the claim, contending that Gloria was the “spouse” of Eenaldo Santiago, the uninsured owner of the car, and was therefore barred from recovering from the Eund pursuant to N. J. S. A. 39 :6-70.

Gloria was never married to Renaldo although she bore him four children, had lived with him, and used his name. After the accident Renaldo left her. In a reported opinion, 120 N. J. Super. 394 (Cty. D. Ct. 1972), the trial court held that the term “spouse,” as contained in N. J. S. A. 39:6-70, was not to be narrowly construed; that Gloria and Renaldo had established a “de facto relationship of man and wife;” that therefore Gloria was Renaldo’s “spouse” within the meaning of the cited section, and was therefore barred from recovering against the Eund.

Words in a statute are to be given their ordinary and well-understood meaning in the absence of explicit indication of special meaning. Fahey v. Jersey City, 52 N. J. 103 (1968). Where the language of a statute is plain there is no need for interpretation. 2A Sutherland Statutory Construction (4th ed. 1973), § 46.01.

The meaning of “spouse” is clear: “* * * a man or woman joined in wedlock, a married person: HUSBAUD, WIEE.” Webster’s Third New International Dictionary (1961), at 2208. Gloria and Renaldo were not married. Renaldo was not Gloria’s “spouse.” Therefore she is not barred by N. J. S. A. 39 :6-70(d) from recovering from the Eund.

The case of Dawson v. Hatfield Wire & Cable Co., 59 N. J. 190 (1970), cited by the trial court, is distinguishable. Eirst, there the court was not interpreting the word “spouse.” Second, that case involved a dependency claim under the Workmen’s Compensation Act. In deciding that petitioner was entitled to the benefits of the act as decedent’s “wife” although her marriage to him was invalid, the court applied the established policy of liberal construction of that act as remedial social legislation. The court noted (at 197) that “the relationship of husband and wife should not be quite the same in the context of [such] type of law, designed to supply a social need and to remedy a social evil * * *,” as in the area of familial law. The court found that in fact petitioner had become economically dependent upon decedent and therefore had established her right “to be considered a dependent within the sense and meaning of the statute * * *” (at 198). Third, the court considered it “significant” that petitioner and decedent had actually entered upon a ceremonial marriage, and also noted that, even in the workmen’s compensation field, if the relationship between the parties was knowingly meretricious recovery would be barred (at 195). None of such considerations appears here. There was no ceremonial marriage here and, so far as appears, the relationship was knowingly meretricious.

The judgment of the Essex County District Court is reversed. Payment of the judgment is to be made by the Fund.


text:
    DOLORES I. MOONEY, PLAINTIFF-RESPONDENT, v. BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY AND JOHN XANTHOPOULOS, COUNTY TREASURER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted October 2, 1973
    Decided October 17, 1973.
    Before Judges Kolovsky, Fritz and Crane.

      Mr. Gerald Weinstein, attorney for appellants.

      Mr. Morgan E. Thomas, attorney for respondent.
   Per Curiam.

This is an appeal from a judgment entered in the Law Division of the Superior Court declaring an act of the Legislature, L. 1971, c. 146, unconstitutional as special legislation in violation of N. J. Const. (1947) Art. 4, § VII. The act amended A. J. S. A. 19 :32-26 which provided for the establishment of the office of superintendent of elections in certain counties of the second class. The judgment also declared a resolution of the Atlantic County Board of Chosen Freeholders establishing the office of Superintendent of Elections for Atlantic County null and void.

We have considered the arguments presented by defendants and find them to be without merit. The judgment is affirmed essentially for the reasons stated by Judge Francis in his opinion below.

Affirmed.


author: Goldmann, J. A. D.,

text:
    HAROLD TULL, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1973
    Decided October 18, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. David L. Greene argued the cause for appellant.

      Mr. John S. Fitzpatrick,
    Deputy Attorney General, argued the cause for the State of New Jersey, Attorney General Kugler, State Police Superintendent Kelly, and State Police Major Graff, Captains Dorrian and Kell and Lieutenant Brennan.
    The City of Asbury Park and its Police Chief Smith and City Manager Siciliano filed no brief.
    “John Doe” filed no brief.
   The opinion of the court was delivered by

Goldmann, J. A. D.,

Temporarily Assigned. This appeal stems from a Law Division action instituted by plaintiff Tull to recover for personal injuries suffered on July 7, 1970 during a civil disturbance in the City of Asbury Park. Named as defendants were the State of New Jersey; Attorney General Kugler; State Police Superintendent Kelly; “John Doe,” an unidentified member of the New Jersey State Police; the City of Asbury Park; Asbury Park Police Chief Smith, and Asbury Park City Manager Siciliano.

Defendants State of New Jersey, Attorney General Kugler and State Police Superintendent Kelly moved to dismiss the complaint. The motion was granted.

Plaintiff’s subsequent motion to add as defendants Major Graff, Lieutenant Brennan, Captain Dorrian and Captain Kell, all officers of the New Jersey State Police, was granted. A motion to dismiss the amended complaint or, in the alternative, to grant summary judgment in favor of these officers was filed. The trial judge found that each of them was entitled to summary judgment and ordered the amended complaint dismissed.

At trial, at the conclusion of plaintiff’s case, the judge granted a motion to dismiss as to the remaining defendants, the City of Asbury Park, Police Chief Smith, City Manager Siciliano and “John Doe.”

Plaintiff appeals from the judgment in favor of the municipal defendants, from the order dismissing the amended complaint as to the State Police officers, and from the order dismissing the complaint against the State, the Attorney General and Superintendent Kelly.

Plaintiff alleged that on July 7, 1970 he was shot, without cause, by an unidentified member of a contingent of the New Jersey State Police that had been summoned to Asbury Park, the site of the incident, to assist in maintaining order during a civil disturbance. He sued the State, the Attorney General, the State Police Superintendent, Asbury Park, Asbury Park Police Chief and City Manager, and “John Doe” (the unidentified State Police trooper). He claimed that “Doe’s” negligent or intentional or illegal acts caused the injury, imputing such negligence to all identifiable defendants on the doctrine of respondeat superior.

The court granted the dismissal motion of defendants State of New Jersey, the Attorney General, and the State Police Superintendent on the ground that all were immune from suit. Plaintiff had not, at the hearing on the motion, presented any material facts that would relate these defendants to the incident in any way other than their official status.

Upon joining Major Graff, Lieutenant Brennan and Captains Dorrian and Kell as defendants, plaintiff amended his complaint to charge them directly or vicariously with the shooting. In addition, a count of negligent or intentional supervision was included.

The affidavits of these men revealed that Dorrian was commander of the troop dispatched to Asbury Park, Kell was the officer responsible for investigating complaints of civilian shootings, Graff was Dorrian’s superior, and Brennan was; a criminal investigations officer assigned to another Troop.. Their affidavits clearly placed each of them outside of As-bury Park at the time of the Tull incident.

Motion for summary judgment as to these four defendants was granted, the judge finding that plaintiff was unable either to connect them directly with the incident or to establish oilier than their supervisory position.

As noted, a motion was granted al the conclusion of plaintiff’s ease to dismiss as to the remaining (municipal) defendants. Prima facie, the evidence had neither established an agency relationship between the State Police and Asbury Park nor the negligence of any individual municipal defendant.

On this appeal plaintiff suggests that the State is liable under the doctrine of respondeat superior. The claim is without merit. The State’s immunity in such matters, even prior to the passage of N. J. S. A. 52 :4A-1, is clear. See, e. g., Fitzgerald v. Palmer, 47 N. J. 106 (1966). Plaintiff’s counsel so conceded at the argument on the motion. He also conceded that he had nothing with respect to the Attorney General and the State Police Superintendent that would create a question of- fact. Although he now argues that he should have been given an opportunity to establish negligence against these two defendants under the doctrine of respondeat superior, he offers no supnorting theory except that the Attorney General, as head of the Department of Law and Public Safetjr, and the Superintendent, as head of the State Police, had the overall responsibility for the operation of the State Police. That is not enough to establish liability. See Harris v. State, 61 N. J. 585, 593-594 (1972); Willis v. Department of Conservation and Economic Development, 55 N. J. 534, 540-541 (1970).

The superior officers named in the amended complaint were also properly removed from the ease since none was in Asbury Park when the shooting occurred. The record stands uncontroverted as to this.

Plaintiff also argues that the State Police became agents of defendant Asbury Park when summoned by the city to help maintain the peace during the civil disorder. From this he concludes that liability for the alleged negligence or intentional shooting by “John Doe” is attributable to the municipality by application of the doctrine of respondeat superior. It is asserted that there was sufficient evidence of such an agency relation for this aspect of the case to have been submitted to the jury.

We have not had the benefit of an answering brief by the municipal defendants. The explanation given is that the person assigned by the city attorney to prepare a brief failed to do so through oversight. We cannot accept or excuse the failure to file a brief; there was a peremptory order directing the municipal defendants to filé a brief by May 18, 1973, and no extension was requested or granted. The Attorney General was, of course, concerned, only with filing a brief on behalf of the State, Attorney General and the State Police officers; he was not obliged to argue the cause for the municipal defendants. Accordingly, we must resolve plaintiff’s contentions by our independent study of the record.

In our view, the trial judge properly concluded that no facts were adduced that would reasonably establish that the municipality, through its police chief or city manager, controlled the State Police. In this connection, it is appropriate that we consider the authority of the State Police in the situation. N. J. S. A. 53 :2-l provides:

The members of the State Police shall be subject to- the call of the Governor. They shall be peace officers of the State, * * * and shall have in general the same powers and authority as are conferred by law upon police officers and constables.
They shall have power to prevent crime, to pursue and apprehend offenders and to obtain legal evidence necessary to insure the conviction of such offenders in the courts. They shall have power * * * to make arrests without warrant for violations of the law committed in their presence, and for felonies committed the same as are or may be authorized by law for other peaee officers.
They may co-operate with any * * local authority in detecting crime, apprehending criminals and preserving la w and order; hut the State Police shall not be used as a posse in any municipality except upon order of the Governor when requested by the governing body of such municipality; * * *.

Thus, the power of the State Police to assist Asbury Park in its time of trouble did not stem from merely the municipality’s call for assistance. It was only after a State Police observer surveyed the need, and a response thereto was authorized, that a State Police contingent could be dispatched.

The record amply demonstrates that when the contingent arrived on the scene, the municipal officials did nothing more than to confer with and brief the State Police as to the situation. The municipality exercised no control over their movements; they were not subject to orders from the Asbury Park police of any responsible municipal officer. There was only an incidental coordination between the local police and the State Police. In fact, the State Police were operating independently, using their own personnel and helicopter, and employing their own tactics.

The State Police represented the interests of the State in maintaining law and order. As the trial judge noted, civil disturbances affect not only the particular locality involved, but can spread and affect a larger population. The interests of the State would be ill-served and the cooperation statute, N. J. S. A. 53 :2-l, possibly thwarted if the State Police, viewed as agents of the summoning municipality, were subject to its every order only because — the necessary authority to respond having been given — they answered the call.

Finally, there was no evidence presented that showed that any of the municipal defendants were involved with the shooting incident of which plaintiff complains.

The judgment is affirmed.


author: Per Curiam. Botter, J. S. C.

text:
    IN RE STATE OF NEW JERSEY IN THE INTEREST OF D. S., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1973
    Decided April 2, 1973.

      Before Judges Carton, Mintz and Botter.

      Mr. David R. Arrajj, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. William E. Norris, Assistant Deputy Public Defender, of counsel).

      Mr. Kenneth Ply, Assistant Prosecutor, argued the cause for State of New Jersey, (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

Defendant, a juvenile 16 years of age, was adjudicated a delinquent by reason of his possession of three glassine envelopes containing heroin in violation of N. J. S. A. 24 :18-4.

On appeal he contends that the trial court erred in denying his motion to suppress. The only witness for the State on that motion was Patrolman Moretti of the Fewark Police Department. He testified that on October 4, 1970, about 10 p.m., he and his partner Patrolman Eomanella were on routine patrol duty in an unmarked radio car, but in uniform, in the vicinity of South Orange Avenue and 19th Street, proceeding northerly on 19th Street. As they entered the intersection he observed two colored males standing on. the northwest corner of the intersection. They were juveniles, and “all of a sudden” one colored male, having a youthful appearance, exited from the bar situate on the corner. He approached the other two males standing on the corner. The officer further testified that he and his fellow officer assumed that there might have been some connection with the tavern since it was in an area'“high on narcotics” they proceeded towards them ’ to see “if anything was being transacted.” The tavern in question was one of three bars in the area known to sell narcotics. The three males were talking for a few seconds “and as we approached them they split up.” The police vehicle came to a stop. The officers called all three over to them and asked “what they were doing in the area, and what the man was doing inside that particular bar,” and “they said nothing.” Moretti then testified that they asked for some identification since they intended to run a record check on them. The three males were then asked to step to the back of radio car where the officers proceeded “to pat them down,” so as to protect themselves from physical harm from weapons they might have. As a result of this pat down Moretti felt a “bulge” in one of the juvenile’s rear pocket. He was asked to remove it so that it might be inspected to determine if it contained a weapon. Defendant complied and pulled out a small brown piece of paper, inside of which the officer found wrapped three glassine envelopes and a package of cigarette paper, all of which was secured by a rubber band. After the package was found defendant was placed under arrest. The other two males were released. Upon analysis the substance in the glassine envelopes was found to be heroin.

The investigatory stop of defendant was clearly justifiable. Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. York, 116 N. J. Super. 440 (App. Div. 1971). We recognize that the factual circumstances here presented may not be as compelling as those presented in the cited cases. However, none of those cases concerned the investigatory detention of a juvenile in the company of one and possibly two other juveniles at the relatively late hour of 10 p.m. in a high crime narcotics area standing near a tavern known to dispense narcotics and the trio “splitting up” as the officers approached them. These singular facts sufficiently justified the investigatory detention of defendant. When a police officer stops a person on the street for summary inquiry, the incidental temporary detention is not to be viewed as a formal arrest requiring probable cause, State v. Dilley, 49 N. J. 460, 467 (1967) .

Moreover, such facts coupled with the refusal of the youngsters to respond to the police officer’s inquiry, justified the pat down search of defendant for a concealed weapon. State v. Dilley, supra. As was so aptly observed in State v. Dennis, 113 N. J. Super. 292, 297 (App. Div. 1971), certif. den. 58 N. J. 337 (1971), “The Constitution does not require an officer to wager his physical safety against the odds that a suspected assailant is actually unarmed.” We believe that under all the stated circumstances, the police officers had a reasonable basis to believe that defendant and his companions may have been armed. Weapons in high crime areas are readily available, and considering the pertinent facts the police officer had the right to make a self-protective frisk. In this respect, the instant case is distinguishable from Sibron v. New York, 392 U. S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) , where the frisk was conducted not for a weapon but obviously in search of narcotics.

Defendant argues that the small size of the package seized from defendant renders the search violative of the Fourth Amendment by virtue of its unreasonable scope. The entire package containing the three decks of heroin and the cigarette paper was about two inches long, one and one-half inches wide, and one-third of an inch thick. However, as observed in State v. Campbell, 53 N. J. 230, 238 (1969), the seized object might well have contained a weapon such as a thin knife or blade.

Finally, we are mindful that the use or sale of illegal drugs has reached alarming proportions, and is carried on furtively and in as many conceivable ways as human ingenuity can devise in order to escape detection and criminal consequences. In this frame work the total circumstances are to be assessed, and the entire transaction viewed in a common sense, realistic fashion. State v. Williams, 117 N. J. Super. 372 (App. Div. 1971), affirmed o.b. 59 N. J. 535 (1971). Considering the totality of the circumstances, the motion to suppress was properly denied.

Affirmed.

Botter, J. S. C.

(dissenting). Defendant, age 16, and another blade youngster were standing on a street corner outside a tavern in a well lighted area. A third individual of “youthful appearance” came out of the tavern and joined them. Two officers in an unmarked police car decided to “cheek [them] out and to see if anything had happened or if anything was being transacted.” The officers had heard nothing and had seen nothing pass among the three. As one officer testified, they were “just standing there talking for a few seconds and as we approached them they split up.” There was no testimony that the individuals began to run or were even aware of the officers’ presence. They came over to the police ear at the officers’ request.

The police officers asked what they were doing in the area, “and they said nothing.” Identification was requested, but the officer who testified could not recall if all throe had produced identification. When patted down, a packet containing cigarette paper and three thin glassine envelopes of heroin was found in defendant’s rear pocket. Defendant was arrested and the others were released.

In my opinion the conduct of defendant and his companions gave no suggestion whatever that they were engaging in crime or were about to do so. The facts here do not warrant an “investigatory stop” and frisk. Furthermore, there was absolutely no indication that the three were “armed and dangerous.” All you have are two black teenagers talking on a street corner at 10 p.sr. in early October, joined by a third male who has exited from a tavern. Notwithstanding that the three taverns located in the area were known for narcotics traffic, there is less reason here to suspect defendant of criminal conduct than in Sibron v. New York, 392 U. S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), and yet in Sibron the United States Supreme Court suppressed evidence as unconstitutionally seized.

In Sibron, over an eight-hour period, defendant had conversed with nine or more persons who were known nareartics addicts. Nothing was overheard and nothing was seen to pass between Sibron and the others. The court held that:

The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security. 392 U. S. at 62, 88 S. Ct. at 1902.

The court further said:

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. Patrolman Martin’s testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a'crime. 392 U. S. at 64, 88 S. Ct. at 1903.

As pointed out by Mr. Justice Harlan, concurring in Sibron, 392 U. S. at 72, 88 S. Ct. at 1907, a stop, short of an arrest, was authorized in Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) :

‘[AVjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . .’

Read in the light of the above standards, neither the stop nor the search were authorized in the case at hand. None of the cases cited by the majority of this court go so far as to authorize a stop and search on as little evidence as exists here. For example, in Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the investigatory stop was based upon information from a reliable informant, partly verified, that an individual seated in a nearby vehicle was carrying narcotics and possessed a gun. In Terry v. Ohio, supra, an officer observed two men who appeared to be “casing” a store for a possible robbery. In State v. York, 116 N. J. Super. 440 (App. Div. 1971), the defendant had been under surveillance because of his association with known narcotics violators; and, when approached by the police, he turned and handed a handkerchief containing heroin to someone behind him. The investigatory stop in State v. Dilley, 49 N. J. 460 (1967), followed the officer’s observation of two individuals at 3 :00 a.m. who were lingering between automobiles in a parking lot, and who had been observed earlier walking down the street turning their heads every few steps, looking to the rear. Finally, State v. Williams, 117 N. J. Super. 372 (App. Div. 1971), affirmed o. b., 59 N. J. 535 (1971), involved a defendant who had been observed conversing with known narcotics violators, and who, when the police approached, made a furtive downward motion, throwing a pink package to the floor of the car.

The facts at hand present none of the circumstances which supported the “stops” in the above cases. Defendant and his companions were not known to the arresting officers as narcotics violators, nor were their actions furtive. Mere presence in the vicinity of a tavern where others have been known to deal in narcotics is not enough to create reasonable suspicions about this defendant and his companions.

The majority opinion gives weight to the “refusal of the youngsters to respond” to the police officer’s inquiry. No officer testified that defendant and his companions “refused to respond” to their inquiries, and the trial judge made no such finding. The three came over when called and apparently cooperated when asked for identification. One officer testified that when he asked what they were doing there, “they said nothing.” The meaning of this testimony is not entirely clear. It may well be that the youths answered, “nothing,” a perfectly normal response for youngsters in that situation. In any case, the silence of one who is asked to explain his conduct cannot be considered affirmative evidence of an attempt to do an unlawful act (State v. Zito, 54 N. J. 206, 215 (1969)), although it may reinforce suspicion aroused by his prior conduct.

Mere presence in a high crime or narcotics area does not give the police reasonable grounds for an investigatory stop and frisk where the conduct of the suspect itself adds nothing to justify police intrusion. See Cunha v. Superior Court of Alameda County, 2 Cal. 3d 352, 85 Cal. Rptr. 160, 466 P. 2d 704 (1970); People v. Moore, 69 Cal. 2d 674, 72 Cal. Rptr. 800, 446 P. 2d 800 (1969). Those who deal in narcotics may act furtively, and with ingenuity, but there is no evidence that defendant on the night in question engaged in any conduct that could be so described.

Moreover, the police were not justified in unwrapping the 2 inch by 1-1/2 inch by 1/3 inch brown paper package, secured by a rubber band, which was found in defendant’s pocket. To say that it may have contained a thin knife or razor blade in an obvious evasion of the rule of law enunciated by the United States Supreme Court in Terry v. Ohio , supra, which allows police to make a protective search in limited instances. In Terry, the court allowed a search for weapons when the officer is justified in believing that the suspect is “armed and presently dangerous,” specifying that such a search cannot be a “full” search but must be “strictly circumscribed by the exigencies which justify its initiation.” 392 U. S. at 24, 26, 88 S. Ct. at 1882. It can hardly be imagined that the police were looking for a weapon, rather than narcotics, when the paper package was unwrapped. The police had no grounds for an arrest, as in State v. Campbell, 53 N. J. 230 (1969), reversing 97 N. J. Super. 435 (App. Div. 1967), and no reason to fear defendant who was so "armed.” Presumably, the police had guns. Surely they were well enough protected against a person who would have no reason, if released, to reach into his hip pocket and start unwrapping a paper package in order to take out such an imagined weapon.

Accordingly, I would suppress the evidence and set aside the judgment of conviction.


text:
    BOONTON HANDBAG CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. THE HOME INSURANCE COMPANY, A NEW YORK CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted September 24, 1973
    Decided October 15, 1973.

      Before Judges Conford, Handles and Meanor.

      Messrs. Dalto and Gran, attorneys for appellant (Mr. Howard Gran on the brief).

      Messrs. Feuerstein, Sachs & Maitlin, attorneys for respondent (Mr. Leonard Rosenstein on the brief).
   The opinion of the court was delivered by

Meanor, J. A. D.

In this coverage controversy the liability facts are undisputed. An employee of plaintiff drove plaintiff’s truck to New York, picked up a load of handbags and returned to plaintiff’s plant. He arrived after it was closed and was unable to unload. The locked truck was . parked upon plaintiff’s premises inside a yard protected by a locked gate. This occurred August 31, 1971. Either later that night or early the next morning, the truck and its contents were stolen.

Plaintiff held a truckmen’s and motor carrier’s' policy issued by defendant. The provisions thereof pertinent here are:

Subject to the following terms and conditions this policy covers:
2. Lawful goods and merchandise the property of the Named Insured or sold by them and in due course of delivery, while loaded for shipment and in transit in or on vehicles described herein owned or operated by the Named Insured and while in his care, custody or control.

The agreed issue is whether the goods were “in transit” at the time of the theft. In a written opinion the trial court held for defendant.

We find the policy to he unambiguous and affirm.

The general understanding of the phrase “in transit” is well expressed in Lariviere v. New Hampshire Fire Ins. Co., 105 N. H. 73, 193 A. 2d 13 (Sup. Ct. 1963) :

Property is considered in transit when it is moving from one location to another. This does not exclude temporary stops, incidental delays, or some deviation from the planned route of travel. [Citation omitted] However when the property to be transported has reached its destination, it is generally no longer considered in transit. [198 A. 2d at 15]

The goods here had arrived at their destination and were merely being stored prior to unloading. Transit had ceased. There are several cases illustrating application of the general rule under divergent fact patterns.

Whitehall Company, Ltd. v. New Hampshire Ins. Co., 281 N. E. 2d 234 (Mass. Sup. Jud. Ct. 1972), involved a shipment of whiskey in a trailer on a railroad flatcar. The trailer was unloaded and stored on the railroad’s premises on December 2, 1965 and stolen from that location about December 17. The court held that the trailer was not in transit, saying that transit constitutes the course of movement from one place to another.

Den Gre Plastics Co., Inv. v. Travelers Indem. Co., 107 N. J. Super. 535 (Law Div. 1969), and Mayflower Dairy Products v. Fidelity-Phenix Fire Ins. Co., 170 Misc. 2, 9 N. Y. S. 2d 892 (Sup. Ct. App. Term 1938), both involved goods loaded upon a truck at the insured’s premises and awaiting delivery. In both eases, it was held that “transit” had not begun.

Plaintiff’s citations of Home Ins. Co. v. F & F Clothing Co., 250 Md. 534, 243 A. 2d 572 (Ct. App. 1968), and Ben Pulitzer Creations, Inc. v. Phoenix Ins. Co., 47 Misc. 2d 801, 263 N. Y. S. 2d 373 (N. Y. City Civ. Ct. 1965), are not of aid. These cases involved overnight stops en ronte between point of origin and destination. It is well recognized that temporary stops—even overnight—minor deviations en route and the like do not take the goods out of transit under policies like the one involved here. 5 Appleman, Insurance Law and Practice, § 3181.25 at 576, 578-579 (1970). Annotation, “Construction of terms 'in transit/ 'transportation/ and the like, within coverage or exclusion clauses of insurance policy,” 80 A. L. R. 2d 445, 450 (1961).

We recognize that insurance policies are to be construed so as to comport with the reasonable coverage expectations of the insured. Gerhardt v. Continental Ins. Cos., 48 N. J. 291, 296-297 (1966); Bryan Const. Co., Inc. v. Employers’ Surplus Lines Ins. Co., 60 N. J. 375 (1972). Under the circumstances present here a reasonable insured would not look to an “in transit” policy for recompense for this loss, but rather would reasonably expect to be compensated under a policy insuring against loss by theft from premises. Thus, in the context here the policy is not ambiguous. We cannot rewrite the policy or create a better contract than that which the insured purchased. American Mercury Ins. Co. v. Bifulco, 74 N. J. Super. 191 (App. Div. 1962), aff'd o. b. 38 N. J. 530 (1962).

Affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MILTON WESLEY HANNAH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 24, 1973
    Decided October 16, 1973.

      Before Judges Conford, Handler and Meanor.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Gerald P. Boswell, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. John S. Kuhlthau, Middlesex County Prosecutor, attorney for respondent (Mr. John N. Shaughnessy, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Conford, P. J. A. D.

We find only one point raised in defendant’s brief worthy of discussion, i. e., the alleged illegality of the search of defendant’s person.

Defendant was tried and convicted for unlawful possession of heroin. Aside from the search question defendant states as grounds of appeal: (1) perjurious police testimony was admitted on the motion to suppress; (2) police failure to arrest defendant at the scene of his apprehension violated his Eourth and Eifth Amendment “rights,” and (3) defendant was not brought before a magistrate until after a lapse of 69 days. We find none of these contentions to have merit.

As to the search issue, the facts are these. On the day in question Captain Gudgeon of the Middlesex County Sheriff’s Office received a telephone call from an individual he knew advising him that a 1968 white Pontiac with a black roof and Ohio license plates AE 4436 would be parked in the vicinity of Heilson and Washington Streets in New Brunswick; that the driver would be a person named Jackson,, a Hegro male six feet tall and weighing 195 pounds, wearing a yellow suit; that he would have narcotic drugs in his possession and that he was believed to be armed with a shot-gun. The informant was considered reliable by the officer, having on previous occasions given the police information on narcotics activity which had resulted in three arrests.

Captain Gudgeon, in the company of Detectives DiPane and Robert Belluseio, proceeded to Neilson and Washington Streets. Although they did not find such a vehicle in this location, they spotted a vehicle of that description making a right turn at the traffic light on Albany Street. The officers then stopped the vehicle on Albany Street at the corner of George Street. They approached defendant with their guns drawn and then took him over to the sidewalk where, according to Gudgeon and DiPane, they conducted a quick superficial search for weapons and narcotics. They found no weapons or narcotics, but defendant’s wallet revealed a driver’s license and registration in the name of Jackson. Since a crowd was gathering and traffic was being blocked, defendant and his car were removed to police headquarters three blocks away where a thorough search of defendant’s person revealed 51 bags of heroin and some cocaine. These items were the basis for the prosecution resulting in the conviction.

On the motion to suppress the trial judge held that although defendant was not arrested until after the search at headquarters—a fact unequivocally asserted by Captain Gudgeon—the detention of the defendant for purposes of making the search was proper under the circumstances because of an “emergent situation.”

Defendant contends there was no probable cause for the police to believe he had anything lawfully seizable on him. We disagree. The informant’s reliability was established by the previous experience of the police with him and corroborated by the close resemblance of defendant and his vehicle to the information received. Compare State v. Scharfstein, 79 N. J. Super. 236 (App. Div. 1963), aff’d 42 N. J. 354 (1964). The unusual detail with which defendant and his car, as well as their location, were described, presents a close analogy with the situation in Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); and see United States v. Harris, 403 U. S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).

However, the mere existence of probable cause does not alone confer legality upon a warrantless search. “Reasonableness,” for Pourth Amendment purposes, is prima facie equatable with the obtaining of a valid search warrant “except in certain carefully defined classes of cases” (the oft-mentioned “exceptions” to the warrant requirement) : Cady v. Dombrowski 413 U. S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706, 713 (1973); Wyman v. James, 400 U. S. 309, 316, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971); Camara v. Municipal Court, 387 U. S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Vale v. Louisiana, 399 U. S. 30, 34, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970).

We pause to point out that the exception for searches incidental to a valid arrest is not applicable here, nor did either the State or the trial court so aver. The evidence bears out the trial court’s finding that prior to the discovery of the drugs defendant was only “detained” in order that the search could be conducted, not arrested in the sense of an intentional apprehension of defendant for the purpose of charging him with any crime. See State v. Baker, 112 N. J. Super. 351, 356-357 (App. Div. 1970); Jones v. United States, 357 U. S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). The only “arrest” here, within the rationale of the exception for warrantless searches incidental to a valid arrest, took place after the narcotics were found on defendant’s person. That arrest was concededly dependent on the outcome of the search, not on the facts constituting probable cause. The search was therefore not incidental to any arrest. Cf. State v. Doyle, 42 N. J. 334, 342-43 (1964).

However, we conclude the search was valid under the exception for exigent circumstances, see State v. Naturile, 83 N. J. Super. 563, 568-69 (App. Div. 1964), allied, under the present facts, to the exception for searches of automobiles. One of the most thoroughly established exceptions to the warrant requirement is that relating to motor vehicles. Probable cause suffices to search an automobile without a warrant because its mobility, actual or potential, makes it impracticable to obtain a search warrant before conducting the search. Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). In the present case the characterization of mobility of the vehicle in which defendant was traveling was obviously as applicable to him as driver of the car as to the vehicle itself. The impracticability of going for a warrant which would justify a warrantless search of the car itself cannot be rationally differentiated from the impracticability which would inhere • in going for a warrant to search the individual traveling in that car. There is no less law enforcement interest in searching an individual on probable cause than his vehicle, nor any substantially greater invasion of privacy in the former case than the latter. This, moreover, was a case of “evidence or contraband * * * threatened with removal or destruction * * *'’ Johnson v. United States, 333 U. S. 10, 15, 68 S. Ct. 367, 369, 92 L. Ed. 468 (1948); and see Chapman v. United States, 365 U. S. 610, 615, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961), thereby invoking the principle of the exigent or necessitous circumstances exception to the warrant requirement. State v. Naturile, supra, (83 N. J. Super. at 568, 570).

The fact that the officers continued the incomplete search of defendant at the police station was reasonable under all the circumstances and should not invalidate the search any more than if it had been the vehicle which was removed to and searched at the station. See Chambers v. Maroney, supra.

The denial of the motion to suppress was correct.

Judgment affirmed.


text:
    S. P. DUNHAM’S AND CO., PLAINTIFF-APPELLANT, v. VIRGINIA DZURINKO, DEFENDANT-RESPONDENT, AND RONALD OWEN DZURINKO, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued October 1, 1973
    Decided October 18, 1973.

      Before Judges Conford, Handler and Meanor.

      Mr. Richard A. Bookspan argued the cause for appellant (Messrs. Stark and Stark, attorneys).

      Mr. William F. Curtin argued the cause for respondent (Messrs. Destribats and Curtin, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

Plaintiff Dunham’s appeals from a judgment of involuntary dismissal entered at the close of the proofs after jury trial. The case was tried as to Virginia Dzurinko only, default judgment having previously been entered against the- co-defendant, her estranged husband.

Early in June 1968 defendants received charge cards issued by Dunham’s. Defendant husband, Ronald, had applied for credit, and the credit application upon which the cards were issued purports to bear the signatures of both Ronald and Virginia Dzurinko. Virginia denied having signed the application, and the trial judge, in dismissing the case, held that reasonable men could not conclude that she had. This ruling is not contested. The inference is that Ronald either signed his wife’s name or had someone else do it.

Both defendants began to use the account, and the balance at time of trial was said to be $1,076.07, which apparently included service charges and attorney’s fees. Defendants separated in April, 1969.

On May 16, 19-69 Virginia was coincidentally an employee of plaintiff, whose credit manager had by that time learned of her separation from Ronald. He called Virginia into his office where she signed a new credit application in 'her own name alone, and also a document entitled “Transfer of Account.” The asserted effect of these documents is an assumption by Virginia individually of the outstanding balance owed on the account opened by Ronald. The credit manager would have it that Virginia voluntarily assumed an obligation to pay the balance by signing these documents. Virginia’s position is that she was coerced into signing by threat of job loss.

On either June 1 or 2, 19-69 Virginia made charges of $17.62, using the charge card that had been delivered a year previous. She had been given no hew charge card following the May 16, 1969 application. On June 2, 1969 Dunham’s credit manager asked Virginia to surrender her credit card, which she 'did. The testimony of plaintiff’s credit manager is explicit that as o'f May 16, 1969 and thereafter he did not intend to extend further credit to Virginia until the previous balance had been paid in full.

In dismissing the complaint the trial judge held that indisputably Virginia did not sign the original credit application. As we have noted, plaintiff acquiesces in this determination. Thus, she was not bound by the contents thereof which purported to make each spouse jointly liable for all purchases on the account. Next he held, since Virginia had no liability for the antecedent debt, her assumption of that debt on May 16, 1969 was without consideration and unenforceable. He rejected the suggestion that the consideration for this assumption on her part was extension of future credit because of the unequivocal testimony of the credit manager that there was no intention to extend such credit until the old balance had been paid.

Since Virginia incurred no express liability on the credit contract, her exposure is to be tested by common Jaw principles. At common law a wife, in the purchase of what has been called necessaries, is presumed to be acting as agent for her husband, and as agent for a disclosed principal she incurs no personal liability on the contract of purchase unless the credit was extended to her individually or she expressly contracted to be liable. Wilson v. Herbert, 41 N. J. L. 454, 461 (Sup. Ct. 1879); Feiner v. Boynton, 73 N. J. L. 136 (Sup. Ct. 1905); Mooney v. McMahon, 83 N. J. L. 120 (Sup. Ct. 1912); Smedley v. Sweeten, 11 N. J. Super. 39 (App. Div. 1950); Saks & Co. v. Bennett, 12 N. J. Super. 316 (App. Div. 1951).

There was no evidence in the ease to overcome the common law presumption. Under the cases cited above, however, Virginia would remain liable for items, not necessaries, purchased by her.

We agree with the trial court’s rejection of the transfer of account and asserted assumption therein by Virginia of a personal obligation to pay tbe outstanding balance on tbe ground stated below — that there was-no consideration for this promise. Although ordinarily courts will not inquire into the adequacy of consideration, the law still requires that a promise, in order to be enforced, be supported by some consideration. American Handkerchief Corp. v. Frannat Realty Co., 17 N. J. 12 (1954). Since Virginia had no obligation to pay the antecedent debt beyond any portion thereof which resulted from purchases of non-necessaries by her, her assumption of the entire debt is not enforceable unless supported by some new or additional consideration. The trial court properly rejected the thesis that extension of future credit to her was such consideration since the testimony of the credit manager is unequivocal that he had no such intention. The suggestion is made here that consideration for Virginia’s assumption of the entire debt was the forebearance of suit against Ronald. The record is barren of any-evidence that this was ever the subject of any discussion between Virginia and the credit-manager.

Defendant, in addition to being liable for the purchases of any non-necessaries by her at any time, is also liable for any purchases she made after the separation between her and her husband.. The record shows that follow-lowing the separation she, from her personal assets, made some small payments on account. The amount of these payments is less than the charges she made in early June 1969. On the remand these payments by her should be credited against any liability assessed against her.

Por the foregoing reasons the judgment below is reversed and the matter remanded for a new trial, at which time it is to be determined if any of the purchases made by defendant prior to her separation were for non-necessaries for which she will be individually liable. We rule as a matter of law that she is liable for the purchases made by her after the separation and direct that credit be given to her for the amount of any payments on account made by her following the separation.

Reversed and remanded.

       We recognize that the decision here is contrary to Sillery v. Fagan, 120 N. J. Super. 416 (Cty. D. Ct. 1972). That case ignored a long line of reported appellate decisions, some of which we have cited. Trial judges are free to disagree with appellate opinions but are not free to disobey. Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961). The principles ignored in Sillery are rooted so deep in our jurisprudence that no trial court, or even this court, is free to refuse them recognition. It may be that the law we have applied here is outmoded and should be changed. In our view this can only be done by the Legislature, or at the highest judicial level.