author: Etjsco, J. S. C.

text:
    ARNOLD J. SINGER AND LOUISE SINGER, PLAINTIFFS, v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, A CORPORATION, AND MAIDEN LANE PARKING, A CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 10, 1970.

      Mr. Dennis A. Cipriano for plaintiffs (Mr. Cyrus Bloom, attorney).

      Mr. Donald King for defendants (Messrs. Zashin & King, attorneys).
   Etjsco, J. S. C.

This is a motion for summary judgment brought by plaintiffs Arnold and Louise Singer against defendant Uational Eire Insurance Company of Hartford, on the issue of the extent of .coverage of a personal insurance contract. Ho application has been made against defendant Maiden Lane Parking.

A domprehensive brief has been filed by plaintiff; there has been neither answering brief nor affidavit offered by defendant. There appears to be a complete absence of case law in this jurisdiction on this question.

The undisputed facts in this case are as follows: Plaintiffs and defendant entered an insurance agreement on June 14, 1965, providing, in part, for “unscheduled personal property.” The agreement reads further, “Property pertaining to a business is not cohered.” On May 15, 1967 an automobile, which belonged to plaintiffs and which contained certain items of Louise Singer’s, was stolen. The missing items included an umbrella, boots, eyeglasses, raincoat and shoes, and several basalt plaques, busts and candlesticks. Payment has been made by defendant for the umbrella, boots, eyeglasses, raincoat and shoes, but not for the other items on the defendant’s theory that they were “part of a business pursuit.”

Plaintiff Louise Singer was an interior decorator and had decorated the interior of a Newark bank. She further suggested to a bank official that the addition of objels Part to the directors’ board room would “enhance” the room’s appearance; she then brought objets Part to the bank “to illustrate the improvement.” She removed pieces of art from her home permanent collections to bring to the bank. On the trip to the bank, the items were stolen from the car. The pieces of art involved were “integral” parts of plaintiffs’ living room, were not for sale and had never been offered for sale. They were not samples and had never been used for business purposes previously.

Plaintiffs argue that these facts establish a pattern which clearly indicates that the items were not “pertaining to business,” relying on out-of-state cases as their authority. Defendant does not deny the facts as recited, but insists that the property involved “pertains” to business.

It has been held that “mere presence” of property in a business situation does not necessarily carry the extra burden of “pertaining” to business. Jerrel v. Hartford Wire Ins. Co., 251 Iowa 816, 103 N. W. 2d 83, 86 (Sup. Ct 1960). In that case plaintiffs’ property had been in a public film vault and plaintiffs wore upheld where a fire destroyed property which had belonged to a corporation they had controlled prior to its dissolution some time before the fire.

In the more recent ease of Taylor v. St. Paul Fire & Marine Ins. Co., Or., 458 P. 2d 671 (Or. Sup. Ct. 1969), judgment was upheld for plaintiff mink breeders where ten fur pieces wrere stolen from their trailer. Plaintiffs here had never sold fur pieces in the past, their connection with the fur business being merely in a breeding capacity. The court indicated that, although evidence indicated they were partially motivated in their trailer trip in having beauty contestants model their furs for free publicity value, there was also evidence indicating that plaintiffs embarked on their trailer trip at least partially as a search for some place to live. “If the furs were being transported along with other personal belongings as an incident to their travel in search for a home, the fact that plaintiff may also have had a concurrent motive to serve a business purpose by exhibiting the furs would not exclude the property from coverage under the policy.” At 672.

Where objects of art had been used to decorate plaintiff’s restaurant for “a considerable time” and the objects were then destroyed in a fire, judgment -was entered for defendants on a personal property insurance policy action. Swanstrom v. Insurance Co. of North America, 100 F. Supp. 374 (S. D. Cal. 1951). The court came to its decision because the loss suffered by plaintiff “'arose out of a risk pertaining to the business of operating a restaurant.” At 375. Even here, though, the court indicated the policy would not exclude everything owned by one in business. “It is the ownership of the insured plus some connection with the business which excludes the policy from coverage.” Id.

It appears to this court, then, that the mere fact that there was an explicable business motive in the past (Jerrell, supra) or a possible business motive in the future (Taylor, supra) is not enough to take the property out of the domain of “personal” and treat it as “pertaining to business.” The court is also aware of two rules of construction of insurance policies: insurance policy language is to be interpreted liberally in favor of the insured, Bowler v. Fidelity & Cas. Co. of New York, 53 N. J 313 (1969); and provisions in a policy describing property insured must be construed with reference to the nature of the property, the purpose for which it is ordinarily used and the manner in which it is ordinarily kept, Cement Sand and Gravel Co. v. Agricultural Ins. Co. of Watertown, N. Y., 225 Minn. 211, 30 N. W. 2d 341 (Sup. Ct. 1947). See, also, 4 Appleman, Insurance Law and Practice § 2292, at 247 (1969).

In the instant case, although there might have been a “concurrent” potential business motive in plaintiff’s mind, at the time the property was stolen it was personal property, kept as part of the plaintiff’s personal art collection, and not “pertaining” to business within the contemplation of the policy.

The only opposition to plaintiff’s motion comes from an answer to interrogatories promulgated by defendant’s counsel in which it is stated, “Investigation in the file indicates a genuine issue of material fact as to the character of the property.” There is no evidence of the nature of this “investigation.”

Summary judgment should be entered only where it is shown palpably that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2; Judson v. People’s Bank and Trust Co. of Westfield, 17 N. J. 67, 73-75 (1954). The instant case comes within both of these requirements.

The motion of the plaintiffs shall be granted as to defendant National Fire Insurance Company of Hartford.


source: Caselaw Access Project

author: Lewis, J. A. D. Poley, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHNNIE WILLIAMS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1969
    Decided June 5, 1969.
    Before Judges Sullivan, Eoley and Lewis.

      Mr. Daniel R. Coburn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Matthew J. 8coila, Assistant Prosecutor, argued tlie cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendant was indicted, tried and convicted of the offense of unlawful possession of narcotics in violation of N. J. 8. A. 24:18-4.

The single issue on appeal is whether the trial court erred “in allowing the prosecutor to question the defendant as to his past conduct.” It is argued that the challenged cross-examination was improper and “severely undermined the defendant’s right to a fair trial.” We disagree.

It is undisputed that 115 glassine envelopes containing narcotics were found in a brown paper bag under the front seat of a rented automobile which had just been returned to the rental agency by defendant, who was then accompanied by three other men and a woman. Immediately prior to this discovery, defendant had requested the agency to rerent to him “this specific” vehicle, and, when he was advised that it could not be done, an argument ensued. The police were summoned, and they arrived shortly thereafter.

According to the testimony of Officer McGhee, defendant not only insisted that the ear be rerented to him but he pulled out a wad of money and said, “I can buy the car if I want.” When one of the men (not defendant) stated that he wanted to remove some draperies, Officer Daily went with him to the ear. Daily testified that, when the man reached into the vehicle to get the draperies, he noticed the aforementioned brown paper bag “half underneath the driver’s seat and half protruding out where I could see it” and that the bag had a “little rip in it, and a glassine bag was half protruding out of it.”

Defendant, after testifying on direct examination that he did not know how the narcotics got into the car, was asked on cross-examination, “Have you ever used the contents of these types of envelopes before,” to which, when his counsel’s objection was overruled, defendant replied, “I have used it * * * I have indulged.” There was an immediate motion for a mistrial, which was denied by the trial court with the comment that the purpose of the question “was whether or not there would be a tendency on his [defendant’s] part to be in possession of the narcotics.”

In State v. Homer, 86 N. J. Super. 351, 364 (App. Div. 1965), this court, in discussing the general rule that on the trial of a crime charged it is neither competent nor relevant to show that the defendant has committed other crimes unconnected in any way with the one in question, stated:

That rule is subject to several well-established exceptions, -which are listed in the elucidative opinion of Justice Heher in State v. Kociolek, 23 N. J. 400, 418-419 (1957). One of the several exceptions therein noted relates to the commission of a different offense disclosing a motive for the crime charged. We specifically pointed out in State v. Campisi, 47 N. J. Super. 455, 459 (App. Div. 1957) [certification denied 26 N. J. 304 (1958)], that proof of a collateral offense is admissible when it has “probative weight in respect of system, intent, knowledge, motive or state of mind.”

Cf. State v. Jones, 94 N. J. Super. 137, 141 (App. Div. 1967). Note also Rule 55 of the Rules of Evidence.

Judgment affirmed.

Poley, J. A. D.

(dissenting). I respectfully disagree with the conclusion reached by the majority. Specifically, on the facts of this case I do not believe a showing that at some unspecified time defendant indulged in the use of narcotics had bearing upon the instant charge, in the sense that it had probative weight in respect of “system, intent, knowledge, motive, or state of mind.” As noted by the majority, the general rule is that on the trial of a crime charged it is neither competent nor relevant to prove that defendant has committed other offenses unconnected in any way with the one in question. While the rule is subject to several well recognized exceptions, indispensable to them is a showing of some "real connection” between the extraneous crime or conduct offered in evidence and the crime of which defendant is accused, beyond the allegation that they have both sprung from the same vicious disposition. State v. Kociolek, 23 N. J. 400, 419 (1957).

On the proofs I am unable to see any real connection between defendant’s prior use of narcotics at some time, with the presence of the narcotic drugs in the automobile which he had rented.

If, as I believe, the evidence of use of narcotics (adduced on cross-examination) was inadmissible it was plainly prejudicial. Defendant testified that during the rental period the ear had been in the possession of persons other than himself and he denied knowledge of the presence of narcotics in the vehicle. This testimony, standing alone, could have engendered in the minds of one or more jurors a reasonable doubt of whether he was guilty of the crime charged, particularly since the State’s purely circumstantial proofs in support of the charge rested essentially upon a showing that defendant had rented the automobile and thereafter narcotics were found in it. Such doubt may have been diminished considerably by defendant’s admission on cross-examination that he had previously used narcotics.

In my judgment the total circumstances required the trial judge in the exercise of sound discretion to grant defendant’s motion for a mistrial to the end that he be accorded the fair trial to which he was constitutionally entitled. Therefore I would reverse and remand for a new trial.


author: Cabton, J. A. D.

text:
    ROBERT W. HARVEY AND RITA HARVEY, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. PETER G. CRAW, DEFENDANT-APPELLANT, AND WILLIAM J. WALKER, JR., PHYLLIS B. DOW AND HAROLD E. DOW, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1970
    Decided April 20, 1970.

      Before Judges Sullivan, Cabton and Halpeen.
    Mr. Francis F. Welsh argued the cause for appellant.

      Mr. Richard D. Catenacci argued the cause for respondents, Eobert W. Harvey and Eita Harvey (Messrs. Pindar, McElroy, Connell, Foley & Geiser, attorneys; Mr. John A. Pindar, of counsel).

      Mr. Herman D. Michels argued the cause for respondent, Harold E. Dow {Messrs. Michels, Schwartz & Maher, attorneys; Mr. Edward R. Schwartz on the brief).
   The opinion of the court was delivered by

Cabton, J. A. D.

Plaintiff Eobert W. Harvey, a passenger in an automobile operated by defendant Harold E. Dow and owned by Dow’s wife Phyllis, sustained injuries when the Dow car collided with one operated by defendant Walker and owned by defendant Craw. Plaintiffs obtained judgments based on jury verdicts totaling $1,207,784 against Harold E. Dow and both Walker and Craw. Craw alone appeals.

Plaintiffs sought to impose liability on Craw as owner of the automobile on the theory that Walker was acting as Craw’s agent when the accident occurred. Craw specifically denied agency. His alleged agency is the only issue on this appeal. Plaintiffs adduced no evidence on their case in support of the claim of agency. Instead, they relied upon the presumption of agency arising from Craw’s ownership of the vehicle.

Craw testified on his own behalf that he had met Walker at an ice cream parlor on the evening the accident happened, although not by any prearrangement. Craw had a date with his girlfriend and because Walker’s car, a 1950 model, was more comfortable than his own, he wanted to borrow it. Walker agreed to let Craw use his car if Craw left his for Walker. Craw departed with his girlfriend and did not see Walker leave. He expected to return by ten o’clock that night. He learned of the collision upon his return. Craw denied that Walker was using his car on any business of his whatsoever.

On cross-examination, Craw acknowledged knowing Walker prior to this occasion, but insisted they were not close friends. He conceded he might have exchanged cars on other occasions—once or twice previously—but not as a regular occurrence. He said Walker did not inform him where he was going, nor did Craw know or ask. Craw did not recall giving Walker any restrictions as to where the latter might go, saying only that if Walker wanted to use the car he could. Craw’s cross-examination was concluded with his admission that he had been convicted of a crime.

In support of Craw’s testimony the defense read the deposition of ]\fcUabb, which shed the onty other light on Walker’s use of Craw’s car. McNabb deposed that he and two other men met Walker accidentally at the ice cream parlor, that Walker was driving Craw’s car and invited McNabb and the two men to attend a party in a nearby town, and that they joined him.

McNabb expressed the belief that the reason Walker was driving Oraw’s car was that they had traded cars that evening. He did not see them actually do so but he did see Craw driving Walker’s car.

There was no rebuttal testimony. None of the parties called Walker as a witness.

Craw then moved to dismiss the action as to him. The trial court denied the motion because Craw’s conviction created a factual question as to the credibility of his testimony (designed to rebut the presumption of agency), requiring submission of the agency issue to the jury.

Craw’s liability to plaintiff could only be established if Walker was in fact acting as Craw’s agent in operating his car when the accident occurred. To establish agency, plaintiffs relied upon the rule of law that use of an automobile upon a public highway by one who is not its owner raises a presumption of agency between the operator and the owner.

This presumption is one of fact. It can be rebutted by a defendant-owner where a plaintiff seeks to hold him vicariously liable for the negligence of the driver. Tischler v. Steinholtz, 99 N. J. L. 149 (E. & A. 1923); Mahan v. Walker, 97 N. J. L. 304 (E. & A. 1922). The effect of such a presumption is described in Evidence Rule 14:

If evidence to the contrary of a presumed fact is offered, the existence or nonexistence of such fact shall he for the trier of fact, unless the evidence is such that the minds of reasonable men would not differ as to the existence or nonexistence of the presumed fact.

To prevent the issue of agency from reaching the jury, the owner must show by uncontradieted testimony that no employer-employee or principal-agent relationship existed, or, if one did exist, that the employee or agent had transgressed the hounds of his authority. Wallace v. A. R. Perine Co., 113 N. J. L. 20 (E. & A. 1934); Nicosia, v. Marangi, 13 N. J. Super. 550 (App. Div. 1951).

This presumption, aside from placing upon the owner of a vehicle the burden of producing evidence as to the nature of the relationship existing between himself and the driver (a burden which “presumably” he is in a better position to carry), also serves the added benefit of bestowing upon plaintiffs a means of avoiding a directed verdict —i. e., it is a means of getting to the jury. See McCormick, Evidence § 310, at 649 (1954).

The cases in this State—as indeed in most of the others —involve primarily two fact situations. Either the vehicle is owned by a parent and is being operated by a member of his family (Paul v. Flannery, 128 N. J. L. 438 (E. & A. 1942)), or the driver is actually employed by defendant owner and the question involves deviation from the scope of that employment (Coopersmith v. Kalt, 119 N. J. L. 474 (E. & A. 1937)). See McGormich, supra, at 651; see generally Annotations, 5 A. L. R. 2d 196 (1949) and 5 A. L. R. 3d 19 (1966).

Here there existed only the naked presumption of agency. There was no family relationship present, nor any situation of regular employment. Hor was there any evidence from which the fact of agency could be inferred.

All of the evidence pointed to the contrary. The relationship between Craw and Walker was exclusively a social one. The situation was simply one where Craw had loaned his automobile to a friend to use for his own purpose.

The temporary, mutual exchange of cars did not create an agency relationship for the reason that each was pursuing his own interest. In Walker’s case that interest was in attending a party with others whom he invited along.

It is only “[w]here men of reason and fairness may entertain differing views as to the truth of testimony * * * [that] evidence of such a character is for the jury.” Ferdinand v. Agricultural Ins. Co., 22 N. J. 482, 494 (1956). Since all the evidence was uncontradictory and permitted but one reasonable conclusion as to the facts on the issue of agency, that issue should have been decided by the trial court and not submitted to the jury.

It is evident that the trial court would have granted Craw’s motion to dismiss had it not been for his criminal conviction. Evidence of that conviction was, of course, clearly admissible for the purpose of affecting his credibility. N. J. 8. A. 2A:81-12 provides:

For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter or his conviction of any crime may be shown by examination or otherwise, and Ms answers may be contradicted by other evidence.

Such evidence was admissible despite the fact that this was a civil action. Gindin v. Baron, 16 N. J. Super. 1, 7 (App. Div. 1951).

It does not follow, however, that simply because evidence of conviction of a crime may be shown in a civil case to affect the credibility of the witness, this alone is sufficient to compel consideration of the ultimate fact in issue by the jury.

As the court said in Ferdinand v. Agricultural Ins. Co., supra,

But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury. [22 N. J., at 494]
* sS Sfc Sis * sis' * *
The great number of eases * * * incline to the more flexible view expressed by us here, that where the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting in-inferences to be be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated :f" * ®. [at 498]
* * * we refuse to recognize the existence, in this State, of a hard and fast rule that the credibility of a witness is always a question for jury determination, [at 500]

A ear owner’s credibility is always in issue because he has an interest in overcoming the presumption of agency arising from another’s use of his automobile. However, as recognized in Ferdinand, there is no “hard and fast rule” mandating that a jury decide every question of credibility arising from interest. Hor is there a rule requiring the jury to resolve every issue of credibility arising from a witness’s prior conviction. Conceptually, there is little difference between showing one’s interest or one’s criminal past for impeachment purposes. Indeed, N. J. S. A. 2A:81-12, in authorizing an attack on a witness’s credibility by showing an interest or prior conviction, makes no distinction between these two forms of impeachment.

There is no reason why a mere showing of a criminal past, any more than a showing of interest in the outcome, should create a jury question. So to hold when there is not the slightest controversy as to the underlying facts would be to abrogate the judicial function of determining whether the evidence conclusively determined the existence or nonexistence of the fact of agency. The issue, under such circumstances, must hinge on the probabilities of the case and whether there exists reasonable inferences supporting the fact of agency.

The presumption of agency arising from ownership here served its purpose by allowing plaintiffs to avoid a dismissal at the close of their own case and by requiring Craw to come forward with evidence to rebut it. However, the trial judge was still required to determine whether the minds of reasonable men could differ as to the existence or nonexistence of the presumed fact of agency. See Evidence Bule 14.

Aside from the bare presumption, the facts in this case failed to reveal even the possibility of any agency relationship. Ho contention was made that the facts on that issue were not as Craw said they were. McHabb’s statement that Walker was using Craw’s car for the purpose of driving himself and others, including McHabb, to a party corroborated Craw’s account of the episode. In the absence of any contradictory proof, this evidence was sufficient to rebut the presumption. The inherent probabilities of the situation also pointed to this conclusion. Consequently, there was no valid basis for refusing to grant defendant’s motion for dismissal.

Eeversed with the direction that judgment be entered in favor of defendant Craw. No costs.


author: Labrecqtje, J. A. D.

text:
    NORTH JERSEY NEWSPAPER GUILD, LOCAL NO. 173, AMERICAN NEWSPAPER GUILD, PLAINTIFF-RESPONDENT, CROSS-APPELLANT, v. RONALD E. RAKOS, DEFENDANT-APPELLANT, CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 24, 1969
    Supplemental Memoranda filed February 20, 1970 and February 26, 1970
    Decided April 20, 1970.

      Before Judges Ltdrenny, Labbecqtje and Leonard.

      Mr. Harry Green argued the cause for defendant-appellant and cross-respondent.

      Mr. Irving LeucMer argued the cause for plaintiff-respondent and cross-appellant (Messrs Kapelsohn, Lerner, Leuchter, Reitman & Mats el, attorneys).
   The opinion of the court was delivered by

Labrecqtje, J. A. D.

Defendant Eonald E. Eakos appeals from a judgment of the Middlesex County District Court awarding damages of $500 to plaintiff and dismissing his counterclaim. Plaintiff cross-appeals, challenging the amount of damages awarded.

The North Jersey Newspaper Guild, Local No. 173 (Guild), is a subordinate local union of the American Newspaper Guild, an international union, and the collective bargaining representative of the employees in the news-editorial department of the Perth Amboy News (News). In December, 1960 defendant, a News employee, joined the Guild. In November 1965 a labor dispute arose between Local 658 of the International Typographical Union' (ITU), which represented the printers and compositors, and the News. On November 11, 1965 ITU declared that the members of Local 658 had been locked out and sanctioned a strike against the News. The Perth Amboy Evening News unit of Local 173 of the Guild thereupon adopted a motion to support Local 658 by requiring its members not to cross picket lines set up by Local 658 at the News. This decision was ratified on November 15, 1965 by the executive committee of the Guild, after which its members honored the picket lines set up by Local 658. Officers and members of Local 173 also joined the picket line. The strike continued until November 29, 1965.

Defendant did not attend the meetings of the Guild at which it was voted to support Local 658 and not to cross its picket lines. He received no written notice of those decisions although he knew that the officers and members of the Guild had joined the ITU picket line. Actually, he had not attended any meetings of the local or participated in any of its activities since August 1964. At the conclusion of the strike he was appointed to the post of managing editor, a supervisory position excluded from the labor contract between the Guild and the News. He thereupon tendered his resignation, dated November 29, 1965, to be effective immediately.

When his resignation was submitted to the Guild’s executive committee on December 11, 1965 it was tabled. On December 9, 1965 charges of improper activities during the strike were brought against defendant by members of the Guild. These were filed on or about December 12, 1965. Although served with the charges and duly notified of the hearing date defendant did not answer and failed to appear at the hearing before the Guild’s trial board.

The charges against defendant included: (1) crossing ITU’s picket line, (2) attempting to entice other members of the Guild to cross the picket line, (3) working on jobs other than his own, (4) working under conditions other than those provided for in the Guild’s contract with the News, and (5) acting collusively with the employer or its agent to the detriment of the Guild or any of its branches. At the hearing, various Guildsmen testified to seeing defendant violate the picket line. A letter was aiso received in evidence on the basis of which a finding was made that defendant had attempted to entice other Guildsmen to cross the picket line. Four complainants testified to defendant’s association with an executive editor of the News, and to his suggestion to editorial workers to continue working despite the strike.

The trial board found defendant guilty of violating the picket line, attempting on one occasion to entice another Guildsman to cross the picket line and collusion with management. He was fined $750 and expelled from Local 173. The expulsion from the local brought with it loss of membership in the parent American Newspaper Guild.

Although defendant did not appeal the decision of the trial board to the membership of the local, it was nevertheless affirmed by the membership on April 17, 1966. While he could have appealed to the International’s executive board within 30 days thereafter, he did not do so.

When defendant failed to pay the fine, plaintiff filed its present complaint to have it reduced to judgment. In his answer defendant challenged the right of the Guild to discipline him after he had submitted his resignation, and attacked the fine imposed as violative of his constitutional rights. He also counterclaimed seeking compensatory and punitive damages for malicious prosecution, based on three articles referring to the charges against him which were published in the Guild newsletter and were allegedly calculated to harass, persecute and humiliate him.

The matter was heard on an agreed statement of facts. The trial judge found that portion of the decision of the trial board which found defendant guilty of solicitation of another Guildsman to cross the picket line, to be unsupported by the proofs. He likewise found that, by reason thereof, the fine should be reduced from $750 to $500. He concluded that at the time of the violations defendant was still a member of the local and subject to its discipline, that he had been afforded substantial due process and, in view of the nature of the offenses and the manner in which defendant had profited from them, the fine was not excessive.

Defendant now raises three points: (1) the local was without jurisdiction over him for the purpose of imposing disciplinary measures for conduct occurring during the period of his membership, after he had been appointed to an ineligible supervisory position and had submitted his resignation; (2) such disciplinary measures could not be imposed where his alleged transgression was in connection with a sympathy work stoppage involving a dispute in which Local 173 was not involved, and (3) by reason of its exeessiveness and unreasonableness the penalty should not be enforced.

It would appear clear that, in general, a labor union may discipline one of its members for violation of its rules; that such discipline may take the form of a fine, and that such fine, when reasonable and levied in accordance with due process, may be collected in an action at law in the state courts. Division 1478, etc. v. Ross, 90 N. J. Super. 391 (App. Div. 1966); NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 87 S. Ct. 2001, 18 L. Ed. 2d 1123 (1967); Local 248, UAW v. Natzke, 36 Wis. 2d 237, 153 N. W. 2d 602 (Sup. Ct. 1967). See also Annotation, “Right of Labor Union to Enforce in the Courts Eine Validly Imposed upon Member,” 13 A. L. R. 3d 1004 (1965).

In Division 1478, etc. v. Ross, supra, the right of a local union to maintain an action to collect a fine levied upon a member for his infraction of a union rule was upheld, upon a finding that the matter was not one arguably subject to section 7 or 8 of the Labor Management Relations Act of 1947 and so within the exclusive competence of the National Labor Relations Board.

Since Ross, in NLRB v. Allis-Chalmers Mfg. Co., supra, the right of a local nnion to impose a fine upon one of its members for crossing a picket line was upheld. There a number of employees of Allis-Chalmers who had crossed picket lines and worked during an authorized strike were fined by their nnion. When the union sought to enforce the fines in the Milwaukee (Wisconsin County Court it was charged in a complaint before the National Labor Eolations Board with haying committed an unfair labor practice by imposing and suing to collect the fines, on the ground that such actions involved wrongful interference with the right of employees to refrain from “concerted activities” conferred by section 7. The board held that section 8 (§ 8(b)(1)(A)) was not intended to impair the right of a labor organization to prescribe its own rulos with respect to membership and dismissed the complaint. The Court of Appeals for the Seventh Circuit reversed, holding that the union’s conduct violated § 8(b)(1)(A), which declared it an unfair labor practice for unions to restrain or coerce employees in the exercise of their right, conferred by section 7, to refrain from concerted activities. Allis-Chalmers Manufacturing Company v. NLRB, 358 F. 2d 656 (7 Cir. 1966).

In reversing the Seventh Circuit and upholding the right of the union to impose the fines, the majority opinion of the Supreme Court held:

Integral to this federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through reasonable discipline of members who violate rules and legislations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and “[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent . . .” Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants, including strikebreakers, are therefore commonplace and were commonplace at the time of the Taft-IIartley amendments.
In addition, the judicial view current at the time § 8 (b) (1) (A) was passed was that provisions defining punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union and that “The courts’ role is but to enforce the contract.” In International Association of Machinists v. Gonzales, 356 U. S. 617, 618, 78 S. Ct. 923, 924, 2 L. Ed. 2d 1018, [1020], we recognized that “[t]his contractual conception of the relation between a member and his union widely prevails in this country * * Although state courts were reluctant to intervene in internal union affairs, a body of law' establishing standards of fairness in the enforcement of union discipline grew up around this contract doctrine. See Parks v. International Broth. of Electrical Workers, 4 Cir., 314 F. 2d 886, 902-903 (388 U. S., at 181-182, 87 S. Ct., at 2007-2008)

While the court found it unnecessary to decide the issue, the opinion noted that there was no evidence of an intention on the part of Congress to ban court enforcement of such fines and that “[a] lawsuit is and has been the ordinary way by which performance of private money obligation is compelled.” 388 U. S., at 192, 87 S. Ct., at 2013.

The court enforceability of such a fine was directly passed upon and upheld by the Wisconsin Supreme Court in Local 248, UAW v. Natzke, supra, a case involving the same strike. There Natzke, a member of Local 248, UAW, was employed by Allis-Chalmers. Some two weeks after his union had called the strike Uatzke returned to work. He was notified in writing that crossing the picket line and working during the course of the strike constituted conduct unbecoming a union member and in violation of the union’s constitution and bylaws, and that he would be subject to a fine for it. He nevertheless continued and after the strike was over was formally charged with conduct unbecoming a union member. Eollowing a trial he was found guilty and fined $100. When the local sued to collect the fine the judge of the County Court held it collectible and entered judgment. In affirming the judgment the Supreme Court held, in substance, that the relation between a member and his union is a contractual one, that the union’s constitution and bylaws constituted the contract, and that the contract was enforceable in the state courts. It found no violation of due process and concluded that when Natzke was fined $100 by the union a binding obligation in the form of a debt was created which was subject to collection by court action.

We incline to the view that the foregoing rule comports with reason and logic and should apply here. See also “Judicial Enforcement of Union Disciplinary Fines,” 76 Yale L. J. 563, n. 4 & 5, 565, 566 (1967); 51 C. J. S. Labor Relations § 80, at 725 (1967). Compare United Glass Workers’, Local 188 v. Seitz, 65 Wash. 2d 640, 399 P. 2d 74, 13 A. L. R. 3d 1000 (Sup. Ct. 1965), where the court held that where the union constitution provided for the suspension or expulsion of a member who failed to pay a fine assessed against him, the remedy was exclusive and the union member was not liable in an action at law to recover the fine. Here the constitution (Article XII, § 3) provides that, pending satisfaction of a penalty imposed by the trial board, a member shall be suspended.

Defendant would distinguish Allis-Chalmers and Natzke on the ground that (1) Natzke and his fellow workers were at all times members of the union while defendant was no longer a member when the fine against him was levied, and (2) they were involved in a strike by the local against their employer while the plaintiff here was not on strike but was supporting a strike by the members of another union. We consider them in that order.

Defendant argues that at the time the fine was imposed he was no longer a member of the union, having ceased to be such on November 29, 1965, when he submitted his resignation upon becoming ineligible to membership by reason of his appointment to the post of managing editor. Plaintiff urges that he remained a member until his resignation was acted upon and that it could defer action thereon until disposition of the charges arising out of his conduct prior to November 29, 1965.

The constitution of the Guild (Article II, § 6) recites that “No persons actively serving the interest of employers as against the interests of the Guild shall be eligible to membership.” The contract between the News and plaintiff excludes the managing editor from the application of its terms. The constitution (Article X, § 13) provides that a member who becomes ineligible for membership in the Guild shall withdraw after having paid all financial obligations to the Guild. It also provides (Article X, § 15) that offers to withdraw or to resign from membership other than for the reasons set forth in section 13, above, shall be submitted in writing to the governing board of the local, which shall inquire into the causes therefor and report to the membership which shall thereupon vote to accept or reject the withdrawal or resignation.

Under the terms of the contract between the News and the Guild (Article XIX, § 3), employees were not to be “required to cross an authorized picket line [1] recognized by the Guild, and [2] maintained by Unions representing employees of the employer, [3] at the employee’s place of employment.”

We find it unnecessary to determine whether defendant’s resignation took effect immediately or was subject to acceptance by the local. We are satisfied that in either case he could not, by submitting his resignation, avoid discipline for his violation of the rules of the local.

The relationship between a local and its members has been held to be a contractual one. The “contract” consists of the union’s constitution and such rules, directives or regulations as may be adopted by the local union consistent therewith or pursuant thereto. A union may fine or expel a member to enforce compliance with its constitution and rules. NLRB v. Allis-Chalmers Mfg. Co., supra. Defendant, by his acceptance of membership in the Guild, consented to be bound by its rules and subject to its discipline. As a former unit and local officer he could not have been ignorant of his assumption of these obligations and of the sanctions available for their enforcement. So long as he remained a member of the union such obligations were binding upon him and he could be held to answer to his fellow employees for their violation.

In the carrying out of its functions as the bargaining unit representing its members the local conld adopt reasonable rules and regulations. A strike vote by the membership of a local or a vote setting up a picket line undoubtedly qualified as such a rule or regulation.

Under the interpretation sought by defendant it was within his power to “wipe the slate clean” and avoid discipline for an offense already committed, by thereafter tendering his resignation. We disagree. Undoubtedly, a union member could prevent the union from levying a fine against him by resigning before engaging in conduct which would justify the imposition of such a fine. Here the resignation operated prospectively and could not cancel out what had gone before. The fact that the formal charges were not filed until after the date of the resignation did not detract from defendant’s liability to discipline for their infraction. There is nothing in the record to suggest undue delay in the filing of the charges. The constitution (Article XII, § 2(c)) requires that charges against a member be filed within six months after commission of the offense.

Defendant cites Dudek v. Pittsburgh, City Fire Fighters, Local No. 1, 425 Pa. 233, 228 A. 2d 752 (Sup. Ct. 1957) ; Axelrod, v. Stoltz, 264 F. Supp. 536 (E. D. Pa. 19671), aff’d 391 F. 2d 549 (3 Cir. 1968), and Scofield v. NLRB, 394 U. S. 423, 89 S. Ct. 1154, 22 L. Ed. 2d 385 (1969) in support of his contentions. We find them inapplicable. In Dúdele, during the pendency of a labor dispute between the city and its fire fighters, the members of the local voted to extend the picket line from the city hall, the situs of the controversy, to the Democratic candidates for city council each time they addressed a ward meeting. Certain union members refused to participate and were fined for their refusal. In affirming an injunction against collection of the fines the court held that the motion to picket violated the rules of reasonableness; that it imposed mandatory picketing beyond the periphery of the legitimate controversy, and hence the sanctions imposed under its scope were null and void. The court noted, however, that “a union must have authority to discipline its members, otherwise it will have no power to bargain effectively,” and “[njothing in this opinion is to be construed as denying to labor unions the right to discipline recalcitrant members in accordance with their constitutions and bylaws consonant with standards which meet the laws of the land * * 228 A. 2d, at 756-757.

Axelrod was a suspension case and bears little, if any, relevancy to the present controversy. Scofield v. NLRB does not lay down the rule, as defendant suggests, that the severance of a member’s relation with the union terminates his liability to discipline for infractions which took place while he was still a member. While the court there held that “If a member .chooses not to engage in this concerted activity and is unable to prevail on the other members to change the rule, then he may leave the union * * 394 U. S., at 435, 89 S. Ct., at 1161, we read that provision as holding that a union member must leave the union prior to his violation of the union’s rule if he is to avoid being disciplined therefor.

Since defendant’s contractual consent to be bound by the rules of the Guild and subject to its discipline was extant at the time he crossed the picket line and continued to work, the rights and obligations existing between him and the union continued enforceable, notwithstanding the later termination of his contractual obligation. Cf. Botany Mills, Inc. v. Textile Workers Union, etc., 50 N. J. Super. 18, 28-29 (App. Div. 1958); Textile Workers Union of America v. Paris Fabric Mills, Inc., 22 N. J. Super. 381, 384-385 (App. Div. 1952). Any other holding would leave the union without power to enforce solidarity among its members, thus substantially impairing its effectiveness for collective bargaining purposes. Local 248, etc. v. Wisconsin Employment Relations Bd., 11 Wis. 2d 277, 105 N. W. 2d 271 (Sup. Ct. 1960).

Both NLRB v. Allis-Chalmers Mfg. Co., and Local 248, UAW v. Natzke, supra, involved situations in which the union was actually engaged in a labor dispute with the employer. Here it is conceded that the work stoppage was not related to any controversy between the Guild and the News. Defendant challenges the reasonableness of the imposition of the fine, on the asserted ground that when a union is acting other than in behalf of its own members in a labor dispute involving them it is not engaging in a protected activity.

Plaintiff calls our attention to the fact that this point was not raised below and urges that we should not consider it here. R. 2:6-2(a); R. R. 1:7-l(c); State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N. J. 374, 379 (1950). Defendant urges that it was inferentially raised and should be considered. In either case, we are satisfied that it is of sufficient public importance to justify consideration by us. State v. Daquino, 56 N. J. Super. 230, 233-234 (App. Div. 1959), certif. den. 30 N. J. 603 (1959), cert. den. 361 U. S. 944, 80 S. Ct. 407, 4 L. Ed. 2d 363 (1960).

Defendant cites no case involving facts substantially similar to those before us, in which his present contention has been upheld, and we know of none. The legal treatment of sympathetic strikes and boycotts has had a long and varied history. Congress, by section 8(b) (4) (i) and (ii) (B) of the Labor Management Relations Act, 29 U. S. O. A. § 158(b) (4) (i), (ii) (B) (1965), has drawn the line between what is lawful and protected and what is unlawful and unprotected. This section does not purport to bar a union representing one group of employees from engaging in a strike in support of the strike of another union representing another group of employees, against the common employer at the site of the direct strike. Such activity has been held by the National Labor Relations Board to be protected. See Pipefitters AFL Local 106 and Columbia-Southern Chem. Corp., 110 N. L. R. B. 206, 209 (1954), Union Carbide Corp., 174 N. L. R. B. No. 147, ¶ 20,604, CCH Lab. L. Rep., March 4, 1969. Cf. Basso v. News Syndicate Co. Inc., 90 N. J. Super. 150, 166-168 (App. Div. 1966). See also Houston Insulation Contractors Asso. v. NLRB, 386 U. S. 664, 87 S. Ct. 1278, 18 L. Ed. 2d 389 (1967).

We find Local Lodge No. 455, Intern. Broth. of Boilermakers v. Terry, 398 F. 2d 491 (5 Cir. 1968), cited by defendant, to be inapposite. There the union, which had no contract with Terry’s employer, had failed to comply with a provision of its constitution requiring a vote by the local as a condition precedent to a strike or work stoppage, and the court equated the direction to Terry not to cross the picket line set up by another union as such a work stoppage.

We are satisfied that, in the context of the facts before us, the resolution to honor and support the ITU picket line was a reasonable one for the violation of which members of the News unit of the Guild could be disciplined. Guild Local 173 and Printers Local 648 were, respectively, the collective bargaining agents for the two principal groups of employees of the News, the reporters and the printers (compositors and typesetters). There was thus a community of interest between the two unions involved which distinguishes a work stoppage by one in support of the other from the prohibited sympathy strike or secondary boycott. The contention of defendant that plaintiff “could expect no economic gain from the settlement of the LT.U. strike” loses sight of the greater degree of bargaining power attainable through the cooperation of the two locals. The Guild’s contract with the News was to expire on September 1, 1966 and would soon require renegotiation. Further, one of the constitutional purposes of the Guild was “to foster friendly cooperation with all other workers, and to promote industrial unionism in the newspaper industry” (Article I, § 2), towards the accomplishment of which the resolution in question was reasonably directed. The contract provision exempting members of the Guild from the obligation of crossing picket lines set up by unions representing other employees of the News at their place of employment gives apparent sanction to concerted activities such as those here involved.

Defendant next challenges the amount of the fine imposed. The constitution of the union authorizes the imposition of a fine. Under Allis-Chalmers it should not be “unreasonably large.” 388 U. S., at 192-193, 87 S. Ct. 2001. While the fine, $500, is characterized by defendant as high, there is no showing in the record that it was unreasonable, or the mere fiat of a union leader. See Scofield v. NLRB, supra, 394 U. S., at 430, 89 S. Ct. 1154. The trial judge did not find it to be excessive “in view of the nature of the offenses * * * the manner in which defendant profited from them and * * * in view of current economic conditions.” We find no cause to disturb his conclusions. He was dealing with two groups of offenses. Defendant not only earned income during the period involved but was the recipient of a substantial promotion at its end. One of the purposes of the fine was to serve as a deterrent to others who might be inclined to dilute the union’s bargaining power by defying its legitimate directives. We cannot say that in these inflationary days a fine of $250 for each offense was so unreasonable as to inhibit its enforcement by way of judgment at law.

We have considered the remaining points raised by defendant and find them to be without merit. We are here concerned only with the two charges which form the basis for the fine for which recovery is sought. The stipulated proofs adequately support the finding of guilt as to each. The trial judge was not restricted to either granting judgment for the amount of the original $750 fine or dismissing the action altogether. In the context of the facts he was called upon to determine, among other things, inter alia, whether defendant had been accorded due process and whether the fine was unreasonably large. He found that as to two of the charges defendant had been accorded due process and that the portion of the fine attributable to those offenses was not excessive.

We are satisfied that in view of the judgment in favor of plaintiff it was proper to dismiss the counterclaim. Defendant in Ms reply brief admits to a tacit understanding that if judgment was entered in favor of plaintiff, dismissal of the counterclaim would necessarily follow.

Our consideration of the points raised by plaintiff on Ms cross-appeal leads us to the conclusion that they are likewise without merit. Defendant was not required to exhaust his internal remedies in order to defend. He was not seeking reinstatement to membership or cancellation of the fine. Cf. Baron v. North Jersey Newspaper Guild, Local 173, 342 F. 2d 423 (3 Cir. 1965); Falsetti v. Local Union No. 2026 UMW, 400 Pa. 145, 161 A. 2d 882, 888-890 (Sup. Ct. 1960). The charge of soliciting other union members to cross the picket line was not supported by the proofs and should have been dismissed. The letter directed to the trial board by one Merelo was inadmissible and could not afford a basis for a finding of guilt. The conversation with defendant, to which Mrs. Emmons testified, took place on the night of November 9, 1965, two days before the ITU parent international sanctioned the strike against the News and six days before the Guild’s, Local 173, decision of November 11, 1965 not to cross the ITU picket line was ratified by the Guild’s executive committee.

The judgment of the Middlesex County District Court is accordingly affirmed.

No costs.