author: Gelman, J. S. C.

text:
    PENBROOK HAULING CO., INC., PLAINTIFF, v. SOVEREIGN CONSTRUCTION CO., LTD., DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 19, 1974.

      Mr. Richard E. Brennan for plaintiff (Messrs. Shanley & Fisher, attorneys).

      Mr. Spencer N. Miller for defendant (Messrs. Krivit, Miller, Galdieri & De Luca, attorneys).
   Gelman, J. S. C.

Plaintiff Penbrook Hauling Co., Inc. (Penbrook) is a common- motor carrier and it instituted this action against Sovereign Construction Co., Ltd. (Sovereign) to recover unpaid freight charges for the transportation of freight received by Sovereign as consignee.

Sovereign was the prime contractor for the construction of a building at the United States Military Academy, West Point, New York. Under date of October 3, 1968, it entered into a subcontract with Dauphin Steel and Engineering Co. (Dauphin) whereby Dauphin was to supply at a fixed price the structural steel required to complete the prime contract. The subcontract price of $520,000 included all delivery charges which were payable by Dauphin. Deliveries of steel by Dauphin commenced in the latter part of 1968 and continued through August 11, 1970. All deliveries were made on bills of lading containing a notation that the freight charges were “prepaid.” The steel deliveries were accepted by Sovereign at the job site and were ultimately incorporated into the building under construction.

Dauphin from time to time submitted requisitions for payment to Sovereign, and each requisition contained a certification by Dauphin to the effect that all of Dauphin’s suppliers had been paid for the work covered by the requisition. On August 28, 1970, after the last cash payment had been made by Sovereign to Dauphin, a representative of Penbrook called Sovereign’s project manager and informed him that Dauphin had not paid freight charges for steel shipments made between May 11 and xYugust 11, 1970. The unpaid freight charges totaled $19,713.19, and Penbrook requested Sovereign’s assistance in collecting the account from sums anticipated to be due to Dauphin under the subcontract. Subsequent correspondence between the parties included an acknowledgment by Penbrook that it had “extended Dauphin this credit” and was seeking Sovereign’s assistance in effecting collection.

In April 1971 a final settlement was reached on the amount due Dauphin under the subcontract. Because of charge-backs by Sovereign and the United States against Dauphin, and payments made by Sovereign on behalf of Dauphin to Dauphin’s creditors, the net result was that Sovereign paid to Dauphin or on its acount a sum in excess of the amount due Dauphin under the subcontract.

Dauphin having become insolvent in the meanwhile, Pen-brook now seeks recovery of all unpaid freight charges from Sovereign as consignee of the goods shipped by virtue of provisions of the Motor Carrier Act, 49 U. S. C. A. §§ 316(d), 317(b), 323, which in substance require interstate motor carriers to adhere to and collect freight charges in accordance with the filed rates and tariffs and prohibit discriminatory or preferential rate treatment by carriers. It is said that the cited provisions of the Motor Carrier Act impose absolute liability upon a consignee for payment of all freight charges, and that the Congressional policy may not be thwarted by any conduct on the part of the carrier which might otherwise estop it from asserting such liability.

In support of its position plaintiff relies princpally upon Southern Pacfic Co. v. Wheaton Brass Works, 5 N. J. 594 (1950), cert. den. 341 U. S. 904, 71 S. Ct. 614, 95 L. Ed. 1343 (1951). In Wheaton Brass defendant-consignee had received a rail freight shipment under a bill of lading which stated that freight charges were to be paid by the consignee. An invoice accompanying the bill of lading, however, indicated that the freight charges had been prepaid, and plaintiff’s agent informed defendant that the shipping charges were in fact prepaid, whereupon the consignee accepted the goods. Subsequently it was determined that the goods had been improperly classified by the shipper, and the carrier instituted suit against the consignee to collect the additional freight charges due under the filed tariffs. Our Supreme Court, relying upon provisions of the Tranportation Act (49 U. S. C. A. § 6), corresponding to those contained in the Motor Carrier Act, supra, upheld the carrier’s right to collect the additional charges from the consignee. Justice Burling said:

The foregoing section of the Act has been construed on numerous occasions by the federal courts and it has become well settled that the purpose of the act is to prevent preferences and to enforce compliance with the requirements of the pertinent paragraph that a carrier shall not charge less than the rates specified- in his filed schedules, and that it is the right and duty of the carrier to collect the full tariff charges for freight delivered. Nor can any act or omission on the part of the carrier, except the running of the statute of limitations, estop or preclude the carrier from recovering the full amount of the proper charges from a person liable therefor, the parties to the consignment being, as a matter of law, charged with the proper schedule rates. See annotation, Title 49 U. S. C. A., sec. 6, par. (7), p. 284. One of objectives of the act is to prevent discrimination by carriers in their rates in favor of preferred shippers and to stabilize rates beyond the control of the carrier and the persons liable therefor. Failure by a carrier to collect the proper charges cannot release a person liable therefor as this would circumvent the purpose of the act and be in defiance of its provision forbidding a remission “in any manner or by any device any portion of the rates * * * and charges so specified”. [5 N. J. at 598-599] '

The court in Wheaton Brass cited Pittsburgh, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, 40 S. Ct. 27, 63 L. Ed. 1151 (1919), for the proposition that

* * * that the defendant' could not invoke the principle of estoppel against the carrier’s right to collect the legal rate as “Estoppel could not become the means of successfully avoiding the requirement of the act as to equal rates, in violation of the provisions of the statute. lid. at 600]

Since the decision in Wheaton Brass numerous federal appellate courts have had occasion to deal with the estoppel question as between carrier and consignee both as to rail and motor carrier freight shipments. See Missouri Pacific R. R. Co. v. National Milling Co., 276 F. Supp. 367 (D. N. J. 1967), aff’d 409 F. 2d 882 (3 Cir. 1969); Consolidated Freightways Corp. v. Admiral Corp., 442 F. 2d 56 (7 Cir. 1971); Southern Pac. Transp. Co. v. Campbell Soup Co., 455 F. 2d 1219 (8 Cir. 1972); cf. Farrell Lines Inc. v. Titan Industrial Corp., 306 F. Supp. 1348 (S. D. N. Y. 1969), affd 419 F. 2d 835 (2 Cir. 1969), cert. den. 397 U. S. 1042, 90 S. Ct. 1365, 25 L. Ed. 2d 653 (1970) (marine carrier); see also, Tom Hicks Transfer Co., Inc. v. Ford, Bacon & Davis Texas Inc., 482 S. W. 2d 364 (Tex. Civ. App. 1972); but cf. Empire Petroleum Co. v. Sinclair Pipeline Co., 282 F. 2d 913 (10 Cir. 1960) (oil pipeline carrier). In each instance the federal courts have distinguished between situations involving freight charges made by the carrier at rates less than the filed tariffs and those where the correct tariff was charged but the carrier delivered the goods under prepaid bills of lading by reason of an extension of credit to the consignor or shipper. In the undercharge cases, of which Wheaton Brass and Fink are representative, the courts-have generally held that the consignee remains liable for all freight charges due in accordance with the filed tariffs, regardless of the circumstances under which delivery was accepted by the consignee. The reasons given for rejecting the application of equitable estoppel against the carrier are as set forth in the quotations from Wheaton Brass, supra. It might also be noted that there is an absence of equity in the position of the consignee in such a situation; in the usual commercial transaction he would have been obligated to pay the shipper the proper charge as part of the cost of the goods delivered, and if he were not liable to the carrier he would receive a “windfall” to the extent that the charge was less than that required under the filed tariff.

However, the federal courts have uniformly held that where the rate charged was in accordance with the filed tariffs and the carrier delivered the goods pursuant to prepaid bills of lading, the consignee may invoke equitable estoppel as a defense against the carrier’s claim for the unpaid freight charges if the consignee has paid the freight charges to the shipper in reliance upon the bills of lading. Eor example, in Consolidated Freightways Corp. v. Admiral Corp., supra, defendant-consignee received shipments by motor carrier over a period of several months. In each instance the goods moved on bills of lading marked “prepaid” or “to be prepaid,” and the carrier invoiced the freight charges to the shipper who in turn invoiced the defendant. Defendant paid all freight charges directly to the shipper and was not notified by the carrier of the shipper’s default until after the last of the disputed shipments had been delivered. The court, after declaring that the Motor Carrier Act did not impose absolute liability upon a consignee for freight charges, held that recognition of equitable estoppel as a defense to the carrier’s action does not interfere with the Congressional policy to prevent preferential rate treatment. In reaching that conclusion the court said:

* * * [We] reject plaintiff’s claim that the principles of equitable estoppel have no application in any action for the collection of freight charges. * * * The crucial question is * * * whether the use of estoppel to prevent recovery on the facts of the particular case contradicts the statutory policy of Section 223 to curb discriminatory treatment of shippers.
In this case, there is no discernible conflict between the application of equitable principles to bar the carrier’s recovery and the statutory proscription against discriminatory treatment of shippers. Requiring double payment of the charge by Admiral would not further the statutory policy of preventing “unjust discrimination or undue preference.” [442 F. 2d at 62-63]

In Admiral the court also noted that the carrier’s extension of credit to the shipper for a period in excess of seven days was in itself a violation of Interstate Commerce Commission regulations promulgated under the Motor Carrier Act. 442 F. 2d at 60. In the court’s view, that violation constituted additional equitable grounds for the denial of recovery to the carrier. The same factual pattern exists in the case at bar, and it was Penbrook’s violation of the ICC’s credit regulations which occasioned its inability to collect the freight charges from the shipper.

Having found that Sovereign received the shipments here in reliance upon the plaintiff’s representations that the freight charges were prepaid and that Sovereign paid Dauphin the freight charges as part of the contract price, I conclude the defense of equitable estoppel is available to Sovereign under federal law and has been factually established under the principles of estoppel recognized in the federal decisions. The fact that our Supreme Court reached a different result on different facts in Wheaton Brass is not dispositive of the issue here. In interpreting and applying federal statutes we are bound by federal and not state decisional law. See Southern Pacific Co. v. Wheaton Brass Works, supra 5 N. J. at 598.

Judgment will be entered dismissing the complaint with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    M. ZERMAN REALTY & BUILDING CORP., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. BOROUGH OF WESTWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1973
    Decided October 11, 1973.

      Before Judges Halpern, Matthews and Bischoee.

      Mr. Gerald S. Meisel argued the cause for appellant.

      Mr. Robert E. McGuire argued the cause for respondent (Messrs. Randall, Randall & McGuire, attorneys).
   Per Curiam.

Plaintiff appeals from so much of a final judgment, entered after a trial without a jury, which denied to it an accounting and its alleged right to recover the sum of $7,179.45 from defendant municipality. That sum represented the claimed unexpended balance remaining in the hands of defendant of $17,500 paid by plaintiff’s bonding company to defendant.

Briefly stated, the facts are that plaintiff was a residential home developer. It obtained subdivision approval from defendant under a developer’s agreement which, among other things, required plaintiff to post a $90,000 performance bond. When the work was not done as prescribed, or in part done in an unworkmanlike manner, defendant threatened to sue the surety on the bond. Defendant estimated that the cost of completion would run approximately $20,000. With full knowledge on plaintiff’s part as to negotiations between the surety company and defendant, the matter was settled for the sum of $17,500. A general release was given to the bonding company, but not to plaintiff. The money used by the surety to pay defendant was obtained from the collateral posted by plaintiff.

Defendant then completed the work required and plaintiff sold the houses. There now remains in defendant’s hands the unexpended sum of $7,179.45. Plaintiff contends it is entitled to these funds because the implied agreement between the surety and defendant was that this was a trust fund from which defendant was to complete the job, and whatever was left should be returned to plaintiff. Plaintiff also urges the applicability of the theory of unjust enrichment.

We affirm essentially for the reasons expressed in the opinion of Judge Dalton. The record supports his findings that not only did the plaintiff know of the settlement negotiations between the surety and defendant, but he acquiesced therein. In addition, the fact that defendant never asked plaintiff to do any more work on this project, but did all the work itself, shows it intended the release to be not only to the surety company but also to plaintiff. See Breen v. Peck, 28 N. J. 351 (1958).

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANDREW PERRY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued August 20, 1973
    Decided August 30, 1973.

      Before Judges Collesteb, Kolovsky and Cabton.

      Mr. Anthony M. Mahoney, Designated Counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

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

Defendant appeals from the judgment of conviction entered upon a jury verdict finding him guilty of attempted extortion in violation of N. J. S. A. 2A:105-1 and N. J. S. A. 2A :85-5.

We find no basis for reversal in any of the three points argued by defendant.

Defendant’s contention that the verdict' was against the weight of the evidence is not' cognizable on appeal since no motion for a new trial on that ground was made in the trial court. B. 2:10 — 1. Moreover, the contention lacks merit. The evidence was more than sufficient to authorize a jury to find that the State’s Charge had been established beyond a reasonable doubt.

There is no substance to defendant’s criticism of the comments on the evidence made by the trial court in the course of its charge to the jury.

Defendant’s remaining contention is that “comments and argument of [the] prosecutor during summation were unduly prejudicial and constituted reversible error.” He claims that in four instances — only' two of which were objected to in the trial court — the prosecutor’s remarks were improper.

As to the two remarks to which no objection was interposed in the trial court: (1) The characterization of defendant’s testimony at a prior trial of the victim was a permissible comment on the inferences which the State sought to have the jury draw from the evidence offered by it. (2) Although there may be some question as to whether the second of those unobjected to remarks overstepped the bounds of propriety, we are satisfied that the prejudice therefrom, if there was any, was not sufficient to warrant invocation of the plain error rule. The situation here is one for application of the rule that “ordinarily a defendant will not be heard to claim prejudice if defense counsel does not make a timely objection to improper remarks.” State v. Farrell, 61 N. J. 99, 106 (1972); see also State v. Knight, 63 N. J. 187 (1973).

The third remark of which defendant complains referred to the playing of a juke box in a tavern where conversations were allegedly overheard. The comments do not appear to have been an improper departure from the evidence and the inferences reasonably to be drawn therefrom. In any event, they were not of a character to call for a reversal. State v. Johnson, 31 N. J. 489, 511 (1960).

Defendant’s strongest criticism is directed to the following statement made by the prosecutor:

The defendant sits right there at the counsel table as does his lawyer and make no mistake about it, I have no objection to Mr. Maurer counselling his witness, his defendant. That’s his obligation to do so and he is a good lawyer and he has been around a long time. Make no mistake about it, he tells his man what to say and how to say it and in a certain context * * *.

Defense counsel immediately objected to this remark and the trial court promptly ordered that it be stricken. Moreover, the prosecutor himself withdrew the remark and stated, “I didn’t mean to imply that Mr. Maurer puts words in his client’s mouth or tells him to lie.”

The prosecutor’s remarks were clearly improper. But we are satisfied that any prejudice resulting therefrom was eliminated by the court’s action in promptly striking them and by the prosecutor’s apology.

The judgment of conviction is affirmed.


text:
    APARTMENT HOUSE COUNCIL, AN AFFILIATE OF THE NEW JERSEY BUILDERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND ROBERT RODRIGUEZ, PLAINTIFFS-APPELLANTS, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF RIDGEFIELD, THE BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN, STATE OF NEW JERSEY, THE DEPARTMENT OF HEALTH OF THE BOROUGH OF RIDGEFIELD AND THE RIDGEFIELD MULTIPLE DWELLING EMERGENCY COMMISSION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1974
    Decided May 3, 1974.
    Before Judges Cabton, Loba and Seidman.

      Mr. Jay M. Hollander argued the cause for appellants (Messrs. Hutt & Berkow, attorneys).

      Mr. Joseph R. Mariniello argued the cause for respondents (Messrs. Fierro, Fierro & Mariniello, attorneys).
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed by Judge (now Justice) Pashman in his opinion reported at 123 N. J. Super. 87 (Law Div. 1973).


author: McKenzie, J. C. C.,

text:
    BARBARA GROSSMAN, PLAINTIFF, v. MORRIS GROSSMAN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 5, 1974.

      Mr. Monroe Ackerman for defendant (Mr. Neil Braun on the brief).
   McKenzie, J. C. C.,

Temporarily Assigned. Plaintiff obtained a judgment of divorce from defendant on December 22, 1972. Included therein was an order that defendant pay the sum of $150 a week to the Union County Probation Office: $50 for support of the wife, and $50 allocated to each of the two children of the marriage. Defendant seeks to modify that portion of "the order pertaining to alimony, claiming plaintiff is living with another man in the former marital home. The court at a plenary hearing, at which plaintiff failed to appear, found from the evidence that defendant’s allegations were sustained by the evidence. Defendant maintains that the cohabitation of his former wife and another man is a change of circumstances entitling him to a cessation of alimony payments.

He relies upon the theory that, in determining the amount of an alimony award, the court should consider not only the needs of the parties and their respective abilities to provide for those needs, but also the interests of the State. See Turi v. Turi, 34 N. J. Super. 313 (App. Div. 1955).

Defendant also urges that under the circumstances it would be unconscionable to enforce the order for alimony payments. He cites Edelman v. Edelman, 124 N. J. Super. 198 (Ch. Div. 1973), where a former husband sought modification based on a similar change of circumstances. There, in addition to engaging in a meretricious relationship with another man, it also appears that the wife had substantial income of her own, whereas the husband’s income had been reduced to the point where his gross earnings were less than the ordered alimony payments. The court, referring to the difficulty in applying the tests of a substantial change of circumstances and unconseionability under the cases of Schiff v. Schiff, 116 N. J. Super. 546 (App. Div. 1971), certif. den. 60 N. J. 139 (1972), and Berkowitz v. Berkowitz, 55 N. J. 564 (1970), held in Edelman that these factors had been established under the facts in that case, and granted modification in favor of the husband.

Orders of alimony may be revised and altered by the court as circumstances may require. N. J. S. A. 2A :34— 23. An alimony award is thus subject to continuing review and its enforcement is within the sound discretion of the court. Martindell v. Martindell, 21 N. J. 341 (1956). In the case at bar defendant alleges changed circumstances as a ground for modification of the original order, in that plaintiff is living with a paramour. He (defendant) does not itemize his expenses or income or recite other economic factors as bearing on the issue. Compare Edelman v. Edelman, supra. In effect, the sole ground for relief is his former wife’s relationship with another man. In Suozzo v. Suozzo, 16 N. J. Misc. 475, 1 A. 2d 930 (Ch. 1938), the court stated:

A more careful consideration of this subject now leads me to the conclusion that as a matter of law, if not logically, unchastity of a former wife is not a defense to her right to alimony after absolute divorce, nor justification for retracting an award previously made to her under our statute. It is at most a factor that in a proper case may be considered as bearing upon the amount of, and the necessity for the allowance, [at 477'!

The rationale for the above rule, adopted in the majority of jurisdictions, is that the wife is not responsible to her former husband for her conduct. See Christiano v. Christiana, 131 Conn. 589 (Sup. Ct. Err. 1945), and eases cited therein.

To the extent, therefore, that defendant would have the court “punish” plaintiff for her misconduct, his position is not well based. Compare Greenberg v. Greenberg, 126 N. J. Super. 96 (Ch. Div. 1974).

The real question before the court is whether defendant has established any other change of circumstances, other than the misconduct of the plaintiff, which would entitle him to. relief. Although he presents no figures which in themselves indicate á change in the financial circumstances of the parties, may the court infer from the relationship between p’¿in tiff and another man with whom she is living, that she no longer has heed for all or part of the alimony payments awarded to her when she was living alone in the home with the children of the marriage? In Hausman v. Dept. of Institutions and Agencies, 64 N. J. 202 (1974), the court dealt with the statutory computation of the Aid to Dependent Children program. The court held that where a noneligible person comes to reside in the household of the recipient, the welfare board could not reduce its payments on a per capita basis on that fact alone. The court stated:

We think [The State] may validly say that there is a presumptio.n that a non-eligible member of the household is paying his share of the household expenses, thereby permitting the per capita reduction of need and benefits, but that the presumption is rebuttable, with the burden of coming forward and establishing that he is not so paying on the welfare recipient.
The presumption has a reasonable basis. The schedule itself is neutral and does not compel the Division’s position that it is irrebuttable, but rather on its face permits an interpretation of rebuttability. Such a view merely shifts the burden of coming forward and of proof to the applicants or recipients who are in possession of the facts, rather than placing it upon the welfare authorities who are comparative strangers to the whole household situation and would otherwise be required to make a full field investigation in every case, [at p. 209]

Alimony, like welfare assistance, is based on the needs of the party. If plaintiff is receiving financial assistanee from another man with whom she has commenced living since the alimony award was made, this may well constitute a change of circumstances calling for a modification of the alimony award. This determination usually may be made only from facts within the knowledge of the former wife and her cohabitant. In Hausman the Supreme Court alludes to the problem faced by the welfare authorities in ascertaining such facts in each case, in view of the large number of eases involved. The problem of a former husband in ascertaining such facts from his former wife, while different in substance, is certainly no less formidable. The court holds, therefore, that the former husband is entitled under such circumsi anees to the benefit of a rebuttable presumption that a new adult member of his former wife’s household is contributing to the expenses of that household, thus reducing her needs. Where, as here, the former wife fails to come forward to rebut that presumption and supply the relevant factors, to what degree is the former husband entitled to modification? Clearly, no formula can be devised which can accurately ascertain with any degree of probability the amount contributed by the other party to the necessaries of the wife. Since the problem is created by the failure of the former wife to come forward and reveal any actual facts to the contrary, she cannot be heard to complain if the court assumes that her financial needs are being met in full by the other person unless and until she does so.

The obligation of the defendant to pay alimony to the plaintiff, pursuant to the judgment of divorce, will be suspended until further order of the court.


text:
    S. C., PLAINTIFF-RESPONDENT, v. A. C., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1974
    Decided May 3, 1974.
    Before Judges Carton, Loea and Seidman.

      Mr. Monroe Ackerman argued the cause for appellant (Messrs. Rudd and Ackerman, attorneys; Mr. Charles E. Carlson, Jr. on the brief).

      Mr. Everett M. Scherer argued the cause for respondent (Messrs. Riker, Danzig, Scherer and Brown, attorneys; Mr. Thomas C. C. Humick on the brief).
   Per Curiam.

The judgment of the Chancery Division is affirmed substantially for the reasons expressed in the written opinion of Judge Consodine reported at 123 N. J. Super. 566 (Ch. Div. 1973).


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HAROLD FINKLE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1974
    Decided May 6, 1974.
    Before Judges Conpoed, Hardíee and Meanok.

      Mr. Morgan E. Thomas argued the cause for defendant.

      Mr. Robert A. Rubenfeld, Deputy Attorney General, argued the cause for plaintiff (Mr. William F. Hyland, Attorney General of New Jersey, attorney (Mr. George F. Kugler, Jr., former Attorney General of New Jersey).
   The opinion of the Court was delivered by

Conford, P. J. A. D.

Defendant challenges his conviction of driving 75.3 miles an hour in a 55 m.p.h. zone on U. S. Rt. 322 on May 5, 1973, primarily on the ground that the evidence of his guilt rests solely on a reading of his speed by a YASCAR device operated by a state trooper. The contention is that expert testimony as to the reliability of the device, which was not here presented before the trial tribunals, is an essential prerequisite for the admissibility of such evidence. The State takes the position that the scientific reliability of the device is a proper subject of judicial notice and that both the accuracy of the instrument used and the qualifications of the trooper who employed it were fully established by evidence adduced at the trial before the Municipal Court of Eolsom Borough. The conviction in that court was affirmed in a trial de novo on the municipal court transcript before the Atlantic County Court.

The general reliability of the YASCAR device was held to have been established by expert proof by the Somerset County Court in State v. Schmiede, 118 N. J. Super. 576 (Cty Ct. 1972), where a conviction for a speeding offense proved by a YASCAR reading was affirmed. We arrived at the same conclusion, also by reason of the adduction of expert proof on the subject before the trial court, in State v. Salup, which is being decided simultaneously herewith. 128 N. J. Super. 209. There is no reported New Jersey case in which a conviction based on YAS CAR-derived evidence has been reversed, or where YASCAR readings have been rejected as evidence, on account of the unreliability of the device. The substantial question before us on this appeal is whether sufficient indication of the general reliability of VASCAE is not now available to warrant the court’s taking judicial notice thereof so as to dispense with the necessity in each of the scores (if not hundreds) of prosecutions annually based on use of the instrument of submitting expert proof to establish such reliability.

An understanding of the evidence in the present case and of our conclusions as to judicial notice require a description of the VASCAE device and of how it functions. The account which follows is derived from the record in State v. Salup, supra, the opinion in State v. Schmiede, supra, the testimony herein and documents hereinafter mentioned supplied the court by the Stale. The principles underlying VASCAE are simple. The apparatus is mounted in and powered by the battery of a motor vehicle. As the operator opens and closes a distance switch it measures the distance traversed by the vehicle during the interim and simultaneously feeds that information into a computer module. The distance is measured by an odometer module which is linked with the speedometer cable of the control car, but the measurement is not affected by the accuracy of the speedometer. The VASCAE unit also measures the period of time elapsing between the opening and closing by the operator of a time switch, and simultaneously feeds that information into the computer module. The switches can be opened and closed, as between distance and time, in any order. When both pieces of information (distance and time) have been stored in the computer there is within a second a computation by the computer module of the speed of a target vehicle, in terms of miles per hour to the nearest one-tenth of a mile, represented by the ratio of the inputs of distance to time as fed into the computer. This figure is flashed to a screen on the apparatus visible to the operator.

The method of use of YASCAR by a police officer in detecting the speed of a target vehicle depends upon whether the clocking car is following the target car, is being followed by it, the cars are approaching each other from opposite directions, or the clocking car is parked alongside the highway while the target car passes by. YASCAR can be used in any of these situations. When both clocking and target vehicles are in motion during the maneuver the technique is as follows. The operator notes the moment when the target car passes a particular reference point, e. g., a bridge, signpost, tree, etc. To avoid problems of depth perception the shadow cast by the object is ordinarily used. At that moment the operator turns on the YASCAR time switch. When the target ear passes a second reference point the time switch is turned off. The operator activates the distance measurement by turning the distance switch on and off as the clocking car passes the same two reference points.

When the clocking car is stationary, as in the instant case, it is necessary that the reference points be predetermined and that the clocking vehicle travel the course in advance, thus locking the distance traversed into the computer module before the time measurement is made. That measurement is made as the target vehicle passes from one of the reference points to the other within the observation of the operator.

Either the time or distance factor may be separately erased from the computer by depressing the appropriate button. Thus a parked police vehicle can check the speed of a succession of passing target cars with only a single distance input. ■ A more detailed description of the technical features of the YASCAR operation, derived from the expert testimony adduced in that case, is to be found in Judge Meredith’s opinion in State v. Schmiede, supra (118 N. J. Super, at 578-579).

The State’s witness in the present case was Trooper Leach. His observation of the defendant’s car was from a parked position in a diner driveway adjoining the eastbound lanes of U. S. Et. 322. The observation took place at 8:30 p.m. on May 5, 1973. At 10:05 A.m. that day the trooper had calibrated the VASCAE unit in the following manner. Using a stop-watch, itself checked for accuracy by radio time, he fed 30 seconds of time into the unit and also a premeasured half-mile of distance, deriving a reading of 59.8 m.p.h. as against an accurate 60. On feeding 20 seconds of time into the unit (with the same distance input), he derived a reading of 89.8 m.p.h. as against an accurate 90. He adjusted the mechanism by turning a screw, thereby yielding perfect readings of 60 and 90 m.p.h. At 11:20 p.m. the same day another calibration check of the unit in the same manner again produced perfect readings without the need for adjustment.

Prior io taking his VASCAE reading on defendant’s vehicle Trooper Leach had fed into the unit the distance on the highway between the driveway where he parked his car for the cheek and the shadow of the overpass by which State Highway 54 crosses U. S. Rt. 322, some distance westerly of the driveway. He parked at a point where he had a clear view of both the overpass and the highway in front of the driveway. As defendant’s vehicle, traveling in the westbound lane, passed the trooper’s position, he turned on the time switch and turned it off; when the vehicle “hit the shadow” of the overpass. It was dusk, and the shadow was visible although the sun had already set. The unit showed a reading of 75.3 m.p.h. Thereupon the trooper overtook defendant, showed him the reading on the unit and issued him a summons for driving 75.3 m.p.h. in a 55 mile zone.

Trooper Leach testified that he had 25 hours of instruction and practice with the VASCAE unit and had passed the necessary tests before being certified as a qualified operator of the apparatus by the Superintendent of the State Police in January 1973.

Defendant on cross-examination sought to impair the trooper’s credibility by showing that the hour of the test was too late in the day to permit any discernible shadow from the overpass. He also implied that the difference between the time when the measured course distance was fed into the computer and that of the speed check was such as to render use of the distance factor unreliable. He testified that he could not have been driving at 75.3 m.p.h. because he customarily exercised great care to drive slowly on account of a serious heart condition; that when he noticed the lights of the police car behind him he was going “slightly over” 55 m.p.h. in congested traffic, and that he told the trooper when stopped that if the latter had told him he was going 60 m.p.h. “[he] would believe him,” but for the trooper to tell him his speed was 75 m.p.h. he would “have to be crazy.”

It should be noted that the issue before us is not whether the proofs justify a trial finding of defendant’s speed at 75.3 mp.h. but rather whether they support an adjudication that defendant beyond a reasonable doubt was proceeding at a rate in excess of 55 m.p.h. — the lawful limit. State v. Dantonio, 18 N. J. 570, 581 (1955).

The municipal court judge found the defendant guilty of driving 75.3 m.p.h. in a 55 m.p.h. zone. He gave credence to the trooper’s testimony that there was a shadow from the overpass on the road, notwithstanding the sun had set at 7:58 p.m. He had previously overruled the objection of absence of expert proof as to the “scientific accuracy” of VAS OAR on the basis of his own previous instruction concerning the instrument by the New Jersey State Police and by his' study of the manufacturer’s detailed manual. The County Court judge, in also finding, without the need for expert proof as to the reliability of the device, that defendant drove at 75.3 m.p.h., was of the opinion that VASCAR did not involve “a new scientific principle at all”; that it involved only the principle “that speed is nothing more than distance over time”, of which the court could take judicial notice. The fact that the particular machine used could accurately measure distance and time and compute the ratio between them in miles per hour was sufficiently established, in the view of the judge, by the trooper’s testimony as to its calibration, and the State had met its burden of proof in respect of the operator’s qualifications and as to the reliability of the manner of the actual use of the device.

The name VASCAE is an acronym for “visual average speed computer and recorder.” Its prototype was invented by Arthur N. Marshall prior to 1960, and it has since about 1964 been manufactured and widely sold by Federal Sign & Signal Corporation of Blue Island, Illinois. The court in State v. Schmiede, supra, found that 6,500 VASCAE units were in use in the United States (as of 1972) (118 N. J. Super, at 580). Information supplied us by the State indicates that the device was in use in 43 states as of May 1971 —by the various state police departments in most of them, and by numerous local police departments. An affidavit by Major Donald L. Smalley of the New Jersey State Police attests that in March 1974 that organization had 325 VASCAE units deployed throughout the State; and the affiant deposes that such units have been used in New Jersey since 1970, the experience of the Division being that “they have consistently proven to be a scientifically accurate and reliable instrument in determining the speed of motor vehicles.”

The State has also submitted evidence that 153 VASCAE units have been sold and installed in local police patrol vehicles. Thus a total of 478 units are now operational in New Jersey and presumably in regular use in the enforcement of the statutes and ordinances governing the speed of motor vehicles.

The Franklin Institute of Philadelphia prepared the first engineering evaluation of the initial model of this device. “Evaluation of a Device for Checking and Eecording the Speed of a Moving Automotive Vehicle” (1960), by Walter E. Onderko. Comparison of the performance of the machine, in checking the speed of vehicles traveling distances of one-half, one-quarter and one-eighth mile, with calculated speeds obtained from stop watch time and measured distances showed deviations within one mile an hour. An error of 25 feet in judging the position of a vehicle with respect to a marker would produce an error of 2^2 m.p.h. based on a vehicle speed of 60 m.p.h. and a distance of one-eighth mile. With the distance increased to one-quarter mile the error is decreased to 1J4 miles an hour.

A pamphlet compiled by the New Jersey Institute for Continuing Legal Education and copyrighted by Rutgers University, entitled “Understanding the Breathalyzer, Vascar and Speed Radar” (1974), includes reprints of purported evaluations of VASCAR by the University of North Carolina Highway Safety Research Center (1968), the Iowa Highway Patrol (1968), the IIT Research Institute of Chicago, Illinois (1970) and the Michigan State Police (1967). The IIT study was made for the advice of the Florida State Department of Highway Safety. We have secured independent verification of the authenticity of the North Carolina report. We accept the reprints of the others as authentic in view of the academic credentials of the publisher and compiler. We have also examined an evaluation of VASCAR made for the Indiana State Police.

The consensus of these studies is that VASCAR is soundly engineered and that when properly used by an adequately trained operator over minimum distances of one-eighth to one-tenth of a mile VASCAR has a high degree of reliability in detecting the rate of speed of suspect motorists. From a parked position a minimum distance of 300 feet can be used. Average error is rarely found to exceed two miles an hour, and usually is within a range oí 1)4 miles an hour or less.

Evict. B. 9(2) (d) provides that judicial notice may be taken of “such facts as are so generally known or of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute”; also, under Evid. B. 9(2) (e), judicial notice may be taken of “specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources of reasonably indisputable accuracy.” And see State v. Dantonio, supra (taking judicial notice of the reliability of radar as a speed detection device); State v. Johnson, 42 N. J. 146, 170 (1964) (taking judicial notice of the reliability of the Harger Drunkometer); State v. Arnwine, 67 N. J. Super. 483 (App. Div. 1961) (refusing judicial notice of reliability of polygraph); cf. State v. McDavitt, 62 N. J. 36, 44 (1972).

We are satisfied from the evidence herein and the materials which have been adduced before us that VASCAR now meets the criteria of the rule for judicial notice. The absence of extensive scientific writings on the subject, such as preceded judicial notice of radar, for example, is not an inhibiting factor. This device does not embody any presently novel scientific principle. Instruments for the automatic measurement of time and distance have long been familiar to our technology. More recent, but not less firmly established, are the numerous practical applications of computer and calculator science using electronic equipment. VASCAR simply integrates all these now well-established techniques into a composite instrument. There is no reason whatever to doubt its practical efficacy for the designed purpose in file hands oí a properly trained operator; and the manifold instances, as here and in the tests reported in the studies cited above, in which calibration has demonstrated beyond dispute the accuracy of particular VASCAR instruments, confirm that the device is reliable beyond any reasonable doubt.

The foregoing conclusions gain added support from the widespread satisfactory experience of police departments here and across the country with VASCAR. Cf. State v. Dantonio, supra (18 N. J. at 579); State v. Andretta, 61 N. J. 544, 549, 551 (1972) (police work with voieeprints).

In deciding to accord judicial notice to the reliability of the Harger Drunkometer the Supreme Court stated, in State v. Johnson, supra:

This conclusion cannot be affected by the fact that there are some, like defendant’s witness in this ease, who dispute the precise accuracy of the device and that there is a possibility of error. Practically every new scientific discovery has its detractors and unbelievers, but neither unanimity of opinion nor universal infallibility is required for judicial acceptance of generally recognized matters. [42 N. J. at 171]

Note also the caveat in McCormick, Evidence (1954), in discussing judicial notice, that' the most frequent shortcoming of the courts in dealing with the doctrine is their failure “to employ the doctrine of judicial notice in this field [scientific and technological facts] to the full measure of its usefulness” (at 694).

Defendant challenges the use by this court of the data mentioned above on hearsay and due process grounds. In the latter regard he asserts he has been deprived of his rightful opportunity to confront and cross-examine the authors of the several reports mentioned. However, the very process of determination of whether grounds exist for the taking of judicial notice implies discretionary resort by the court to relevant authoritative literature in the particular field without any need for putting it through the adversarial trial process. See, e. g., the extensive consultation of relevant literature in State v. Dantonio, supra (18 N. J. at 573, 575, 576, 578-579), where the court decided to take judicial notice of radar as a speed measurement device. Evid. B. 10(2) provides that

In determining the propriety of taking judicial notice of a matter or the tenor thereof, (a) any source of relevant information may be consulted or used, whether or not furnished by a party, and (b) no rule of evidence except Buie 4 [discretionary exclusion of evidence whose probative value is outweighed by risk of undue consumption of time or undue prejudice] or a valid claim of privilege shall apply.

Copies of all the material considered by the court have been furnished to defendant, and he has employed the opportunity to attack its probative force as well as its admissibility. See Bvid. B. 10(1). It has been implicit that the court would have received from defendant any authoritative data disparaging the reliability of VASCAE. None has been received, nor does the court know of any. The contentions in respect of the hearsay rule and due process rights are without merit.

We find that the conviction of defendant in the County Court of exceeding the speed limit is sustainable on the evidence adduced. In doing so, however, we point out that the factor of potential margin for error in VASCAE readings inherent in the intervention of the mental and physical processes of the operator of the device may well justify a court in declining to find guilt beyond a reasonable doubt where the reading is relatively close to the legal speed limit. But here there is no such problem in view of the wide disparity between the 55 m.p.h. limit and the 75.3 m.p.h. VASCAE reading. We also emphasize that in every future case there must be satisfactory proof of the good working order of the particular VASCAE instrument used and of the qualifications of the operator.

Affirmed; no costs on this appeal.

        I-a People v. Leatherbarrow, 69 Misc. 2d 563, 330 N. Y. S. 2d 676, 679 (Cty. Ct. 1972), a conviction of speeding based on a YASCAR reading was reversed for absence of “any testimony concerning the theory and mechanics of Vascar’s operation or the scientific facts and principles upon which its operation is founded”. This, despite the court’s obesrvation that its “independent research has shown Vascar to be a relatively simple and undoubtedly accurate mechanism for determining vehicular speed.” Ibid.

        In People v. Persons, 60 Misc. 2d 803, 303 N. Y. S. 2d 728 (Ct. Sp. Sess. 1969), there was a speeding conviction based on a VASCAR reading supported by expert proof as to its reliability. The judgment was affirmed in an unreported opinion of the Monroe County Court March 24, 1970 wherein the court, although expressing full satisfaction with the reliability of the device, indicated that it would nevertheless be necessary for the State to adduce expert testimony on accuracy in each future case where reliance was solely on the instrument.


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    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH SALUP, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 4, 1974
    Decided May 6, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. E. John Wherry, Jr. argued the cause for appellant.

      Mr. Neil H. Shuster, Special Deputy Attorney General, argued the cause for respondent {Mr. William, F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey).
   Per Curiam.

Defendant’s conviction and resulting $21 fine in the municipal court for speeding (71 m.p.h. in a 50 m.p.h. zone) were appealed to the County Court. He had been clocked by a YASCAR device, the results of which were admitted in evidence without expert testimony as to its reliability in measuring speed.

The only issue before the County Court, according to stipulation of counsel, was whether, after hearing expert evidence, that court would conclude that YASCAR was a sufficiently accurate scientific speed measuring device to justify admitting in evidence the results of its operation and their consideration by the municipal court in determining guilt. The qualifications of the police operator of the mechanism and its proper functioning at the time in issue were agreed upon by counsel.

Such a hearing was held before the County Court. The State presented as its only witness Henry Bergson, regional manager of Federal Sign and Signal Co., the producer of VASCAB equipment. He was subjected to extensive cross-examination by defense counsel. Defendant produced no witnesses in opposition. The County Court found Bergson qualified as an expert and held that it was “convinced, at least persuaded, of the scientific accuracy of VASCAB” and “that it is of such a nature that it could be used for the purpose for which it’s sold to the police department.” The conviction and fine were thus sustained.

We are satisfied that the evidence below supports the court’s determination as to reliability of VASCAB in this ease and its consequent finding of guilt beyond a reasonable doubt. The conviction and fine, accordingly, are affirmed. State v. Dantonio, 18 N. J. 570, 575 (1955); State v. Johnson, 42 N. J. 146, 162 (1964).

The court below further ruled that it would take judicial notice of the scientific accuracy of VASCAB in future cases, thus obviating the necessity for expert proofs with respect thereto. The State urges us to subscribe to that view. For the reasons already set forth the evidence in this case is sufficient to sustain the conviction. We note on this issue raised by the State, however, that State v. Finkle, 128 N. J. Super. 199, decided simultaneously herewith, holds that such judicial notice should be taken.

Affirmed.


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    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HERMAN LEAK AND WESLEY J. ADAMS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Argued April 22, 1974
    Decided May 6, 1974.

      Before Judges Conford, Handler and Meanor.

      Mrs. Susan T. Sinins, Assistant Deputy Public Defender, argued the cause for defendants-appellants (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Marc J. Friedman, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney (Mr. George F. Kugler, Jr., former Attorney General of New Jersey)).
   Per Curiam.

Defendants were convicted of armed robbery. The alleged victim testified that he was assaulted from the rear on a street by a group of young people, two males and two females. They took his wallet, containing $90, and $7.10 from a trouser pocket. They ran away when a patrol car arrived on the scene. Defendants were apprehended shortly thereafter, Adams separately from Leak. The victim, one Zisa, identified them both in court. He identified Leak and one of the women out of court. His money and wallet were returned to him by the police shortly after the arrests.

Defendant Leak denied the robbery. Codefendant Linda Logan (not a party to this appeal) testified, and was substantially corroborated by the testimony of Leak, that she had an engagement to meet Leak at the Old Rail Bar. While she awaited him Zisa accosted her but she ignored him. Later Leak arrived, stayed awhile, and departed. Logan left to seek a ride home. Zisa accosted her again and touched her arm. Leak reappeared, and Logan told him of Zisa’s approach. An argument ensued between the men, and when Zisa reached into his pocket Leak punched him. Shortly thereafter the police arrived and arrested them. They said Adams was not involved in the episode. Leak testified he ran away bcause he was on parole from Yardville.

Adams testified he was not involved in the robbery at all. He was walking home from a bus terminal when he stopped to urinate in the bushes. A police officer came upon him and. threatened to kill him if he moved. Adams has an extensive criminal record.

Defendants appeal on a wide assortment of grounds: (1) testimony regarding Adams’ ownership of a watch found at the scene was in violation of the Miranda rule and prejudicial; (2) the court’s charge on flight was erroneous and prejudicial; (3) abuse of discretion in permitting Officer Brown’s testimony to be read to the jury; (4) the sentence of defendant Adams was excessive; (5) the court erred in answering the jury’s question concerning the identification of the watch; (6) abuse of discretion in permitting the victim’s wallet to be introduced in evidence; (7) abuse of discretion in not ordering a mistrial and a sentence of the defendants, and (8) the verdict was against the weight of the evidence.

Of these grounds, we deem only the first and second to warrant discussion in this opinion.

Officer Brown testified that in searching the environs of the assault the following morning he discovered a wrist watch. The watch was marked for identification as an exhibit. The officer was asked whether he ever ascertained the ownership of the watch and responded that he did. He was asked how he went about that, and said: “I took the watch to the eellblock and spoke to Mr. Adams and asked him if that was his watch.” At that point the defense made an objection, and the court proceeded to conduct a Miranda voir dire out of the presence of the jury. At its conclusion the court excluded any further interrogation on the subject of the watch on Miranda grounds. Defense counsel expressed no objection to the court concerning the prejudicial effect of the interrogation prior to the voir dire nor did he move to strike it.

During the course of the jury’s deliberations they requested a reading of Officer Brown’s testimony, and this was done over the objection of Adams’ counsel. Two hours later the jury sent a question to the judge: “Did Wesley Adams identify the watch as being his ?” With the express approval of Adams’ counsel the court instructed the jury that the watch was not in evidence and that any testimony with respect to the identity of the watch must be stricken from their consideration.

Adams now contends that the circumstances surrounding the original adduction of Brown’s testimony concerning the identification of the watch visited such prejudicial effect on his defense as was not eradicable by the instruction of the court to the jury during its deliberations. We do not agree. Trial counsel’s contemporaneous 'evaluation of the seriousness of the matter is entitled to some weight. As noted, there was no request to strike Brown’s testimony at any time nor any expression of dissatisfaction other than with the reading of the entirety of Brown’s testimony. As to the latter, this was entirely within the sound discretion of the court. State v. Wilkerson 60 N. J. 452, 460 (1972). In these circumstances we will'not assume the jury did not heed the judge’s instructions to disregard any testimony as to the watch. Clark v. Piccillo, 75 N. J. Super. 123, 133 (App. Div. 1962).

Defendants complain of the court’s refusal to use their request to charge on the subject of flight and contend that the charge on that subject as delivered was erroneous. A portion of defendant’s request was clearly erroneous. This was that flight could be considered by the jury only after they become convinced beyond a reasonable doubt that the defendant committed a wrong before the flight. A portion of the request being erroneous, the court was warranted in rejecting the whole.

The true rule on flight is that if a defendant does not submit ah explanation for flight, consistent with a clear conscience as to guilt, which is given credence by the jury, the jury may infer from the flight consciousness of guilt on the part of the defendant. Consciousness of guilt is a circumstance which, along with all the other evidence, may be considered by the jury in assessing guilt. See State v. Petrolia, 45 N. J. Super. 230, 233 (App. Div. 1957), certif. den. 25 N. J. 43 (1957), cert. den. 355 U. S. 942, 78 S. Ct. 431, 2 L. Ed. 2d 422 (1958).

The charge delivered in the present case was poor in that it did not clearly apprise the jury that if they credited 'the explanation of any of the defendants for his or her flight (e. g., defendant Leak being on parole from Yardville and thus not wishing to be involved in any kind of altercation), they should not draw any inference relative to guilt against such defendant. However, we believe the jury probably drew that meaning from the portion of the charge wherein it was informed by the court that it should “consider” defendants’ “explanation * * * as to why they considered the actions and did certain things at that particular time.” In any event, on the caso as a whole, we do not believe the charge as delivered had any prejudicial effect as to either defendant.

We find no merit in any of the other grounds asserted in defendants’ brief.

Affirmed.


author: Michels, J. A. D.

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    VINCENT TOOKER, JR., AND ALLSTATE INSURANCE COMPANY, PLAINTIFFS-APPELLANTS, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, DEFENDANT-RESPONDENT, AND JOSEPH PIORKOWSKI AND ELIZABETH ORLANDO, AN INFANT BY HER GUARDIAN AD LITEM, ALEX ORLANDO, AND ALEX ORLANDO, INDIVIDUALLY, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 26, 1973
    Reargued April 22, 1974—
    Decided May 7, 1974.

      Before Judges Collester, Lynch and Mtchels.

      Mr. William, P. Gilroy, argued the cause for appellants (Messrs. Campbell, Mangini, Foley, Lee and Murphy, attorneys; Mr. Gilroy on the brief).

      Mr. William G. Marriott, argued the cause for respondent (Messrs. Lane and Evans, attorneys; Mr. Marriott on the brief).
   The opinion of the court was delivered by

Michels, J. A. D.

Plaintiffs Vincent Tooker, Jr. and Allstate Insurance Company (Allstate) instituted this action to have Tooker declared an additional insured under a family automobile liability policy issued by defendant Hartford Accident and Indemnity Company (Hartford) to defendant Joseph Piorkowski.

The suit arises as a result of Hartford’s refusal to defend or indemnify Tooker, who was involved in an automobile accident while driving an automobile owned by Piorkowski with the permission of Piorkowski’s son Albert. Tooker was insured under a policy issued by Allstate which paid the judgment recovered against him by the passenger in the vehicle. The trial court held, without making any specific findings of fact, that there was no coverage under the Hartford policy, and; in effect, that Tooker was not an additional insured thereunder, and entered judgment against Allstate and Tooker. They appealed, contending that Tooker was an additional assured under-the terms of the Hartford policy because: (1) Albert had implied permission from his father to use the car, and therefore Albert could give permission to Tooker, a second permittee, and alternatively, (2) that since Albert was a resident of the household, and therefore an insured under the Hartford policy, he had the right to give initial permission to Tooker.

Albert, who was 18, resided with his father even though he was in military service stationed at Port Dix, New Jersey. He frequently eámé home on leave on weekends and used his father’s car. Whenever he asked his father for permission to use the car, permission had always been granted. On the night of the accident, however, Albert took the car without asking permission because at the time his father was asleep, and he apparently did not wish to disturb him. The keys for the car were kept on the refrigerator at all times, and consequently Albert did not have to awaken his father to get the keys. Albert apparently had been told by his father on previous occasions that he should not take the car unless he had permission. His father did not know that Albert took the car and testified that he had not given Albert permission to take the car on the. day of the accident.

Albert took the car, picked up his friend Tooker and went to a party. While at the party Tooker asked Albert for the keys to the car in order to take home a girl whom he had met at the party. Albert gave Tooker the keys, and while Tooker was driving the girl home, the accident occurred, resulting in injury to her and subsequently this suit.

The Hartford Pamily Automobile Policy provides in part:

3. Persons Insured,: .The following are insureds under Section I.:
(a) With respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, * * *.

Under the express language of this clause, which is generally referred to as an “omnibus clause,” the named insured and any resident of the same household are insureds under the Hartford policy. Any other person can only become insured when using the automobile with the permission of the named insured or his spouse if a resident of the same household whether that permission be express or implied. Thus, Albert, who is conceded by the parties to be a resident of his father’s household, was an insured under the Hartford policy. He did not need permission from his father to use the car to obtain the protection of this policy.

However, if the clause is read literally, as contended by Hartford, while Albert would be an insured under the policy when he takes his father’s car with or without permission or even contrary to his father’s instructions, nevertheless, he could not give permission to a second user so as to extend coverage to that person. Such a result seems contrary to logic and the strong policy of this State for the liberal construction of liability insurance to effectuate the broadest range of protection to users of our highways. Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488, 495 (1960); State Farm v. Zurich Am. Ins. Co., 62 N. J. 155, 168 (1973).

Our law is now well settled that in spite of the precise language of an omnibus clause which generally restricts coverage to any person using the automobile with permission of the named insured, if the first user in fact has permission from the named insured, lack of permission, whether express or implied, of such named insured for use by a later permittee is irrelevant to coverage, short of theft, or the like. See Odolecki v. Hartford Acc. & Indem. Co., 55 N. J. 542, 550 (1970); State Farm v. Zurich Am. Ins. Co., supra. In fact, in Indemnity Ins. Co., etc. v. Metropolitan Gas. Ins. Co. of N. Y., 33 N. J. 507 (1960), our Supreme Court has expressly held that even though the initial permittee was specifically instructed not to let anyone else drive the car, the second permittee was covered as an additional insured notwithstanding the violation of such instructions. In reaching this result the court held that the second permittee was covered since the car was being used for the purpose permitted by the named insured, stating:

Under the omnibus clause of its insurance contract, Metropolitan agreed to cover “any person while using the automobile * * provided the actual use is with * * * [the named Insured’s] permission.” The clause says nothing about operation of the vehicle. It is the use which must be permitted. Defendant reads the word use as synonymous with operation, and argues that since Mrs. Calandriello in effect expressly forbade Acerra from operating her car, Acerra was not covered. We think that in this context the words use and operation are not synonymous. The use of an automobile denotes its employment for some purpose of the user; the word “operation” denotes the manipulation of the car’s controls in order to propel it as a vehicle. Use is thus broader than operation. Brown v. Kennedy, 141 Ohio St. 457, 48 N. E. 2d 857 (Sup. Ct. 1943) ; Maryland Casualty Company v. Marshbank, 226 F. 2d 637 (3 Cir. 1955). One who operates a car uses it, Cronan v. Travelers Indemnity Co., 126 N. J. L. 56 (E. & A. 1941), but one can use a car without operating it. An automobile is being used, for example, by one riding in it although another is driving.
Since in this context the words operation and use have different meanings and the omnibus clause requires only that the use of the automobile be with the permission of the named insured, any prohibition as to the operation of the automobile is immaterial to a determination of coverage. Thus, even though a driver has been expressly prohibited from operating the car, he is covered if the car was being used for a purpose permitted by the named insured. * * * [at 513; citations omitted; emphasis as in original]

Our function in construing a policy of insurance, as with any other contract, is to broadly search for the probable common intent of the parties in an effort to find a reasonable meaning in keeping with the express general purposes thereof. See Fidelity Union Trust Co. v. Robert, 36 N. J. 561, 567 (1962); Ins. Co. of Penna. v. Palmieri, 81 N. J. Super. 170, 179 (App. Div. 1963), certif. den. 41 N. J. 389 (1964). In this regard the well-recognized rule of construction, that where the policy provision under examination relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is taken of the coverage extended, is pertinent. See Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 8 (1961). The terms “implied permission” for purposes of omnibus clause coverage, at least in the situation of a first permittee, has been held to mean “an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent.” See State Farm v. Zurich Am. Ins. Co., supra, 62 N. J. at 167.

The Hartford policy here involved expressly denominated residents of the named insured’s household as insureds thereunder. Obviously by such language the intent of the parties was to afford insurance protection to residents of the latter’s household, thereby recognizing that residents of the named insured’s household, such as Albert, would use the automobile described in the policy, and signifying their consent to such use. In view of the relationship existing between Albert and his father and the express language of this omnibus clause, Albert must be considered to have, at the very least, implied permission of the named insured (Piorkowski) to use the automobile covered by the Hartford policy.

A literal construction of this omnibus clause, which is somewhat different from those contained in other automobile policies, would create the anomalous situation wherein any resident of the named insured’s household, though expressly covered by such policy as an insured, could not extend the protection of the policy to another to use the automobile even where such other person was on the business of the resident. Yet if the named insured gave permission to a nonresident of his household to use the automobile with specific instructions that it not be driven by anyone else, anyone to whom such non-resident gave permission to use the automobile would be entitled to coverage under the policy notwithstanding the violation of the express instructions of the named insured. Such a result is not only contrary to what the parties to the insurance contract obviously and naturally intended, but violates the strong policy of our State to afford the broadest range of protection to persons using the highways. Moreover, such a literal construction of this omnibus clause is not reasonable in view of the present status of the ease law of New Jersey construing the “omnibus clause” of automobile insurance policies.

Accordingly, we hold that Albert, as an insured under the omnibus clause, had implied permission to use the ear so as to enable him to give permission to Tooker, the second permittee, thereby extending the coverage of the Hartford policy to Hooker as an additional insured. The judgment below, therefore, is reversed and the matter remanded to the trial court for the entry of judgment in accordance with the opinion of this court.

      Lbe term "named insured” is defined in this policy to include in addition to the individual named in Item 1 of the Declaration (Piorkowski) his spouse if a resident of the same household.

      Cf. Touchet v. Firemen’s Ins. Co. of Newark, 159 So. 2d 753, 755 (La. Ct. App. 1961), construing the identical clause in this manner.


text:
    CEIL LEVINE, AGENT FOR ELMWOOD VILLAGE, PLAINTIFF-APPELLANT, v. CHARLES R. SEIDEL, MARY MORRIS, NAT MOSER, JOHN ECONOMOU, JOHN COSGROVE, JOSEPH BRAUN, RONALD YOUNG, ANNA FREED, CLAUDE J. FARIA, JOHN EITEL, DON SUMMERFORD, MANUEL CAMPOS, HAROLD BARDROFF, ROSARIO MARICCHIOLO, DONALS FORREN, HENDRIK HUMMEL, VINCENT BAIARDI, AND MEYER PERLMUTTER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted March 25, 1974
    Decided May 7, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. Dennis Alan Cipriano, attorney for appellant.

      Mr. William Goldberg, attorney for respondents.
   The opinion of the court was delivered by

Michels, J. A. D.

This is an appeal by plaintiff rental agent for Elmwood Village, an apartment complex located in East Paterson, New Jersey, from judgments entered in 19 dispossess proceedings which were consolidated for trial in the Bergen County District Court.

Plaintiff instituted these summary dispossess actions against defendants for nonpayment of rent for the months of April and May 1973. Defendants were all month-to-month tenants in the apartment complex. The record establishes that sometime in 1972 complaints were made by the tenants to the Internal Revenue Service charging that the rents fixed by Elmwood Village were in excess of the rents established under the Price Commission Rules and Regulations promulgated under the Economic Stabilization Act of 1970. As a result of the complaints, investigation was undertaken by the Internal Revenue Service. While the record is rather sparse, apparently an agreement was arrived at between the landlord and the Internal Revenue Service pursuant to which a refund or adjustment in the rents was made for the period through January 31, 1973. Specifically, with respect to defendant Seidel the amount of the “adjustment/roll-back” was indicated by the District Director of the Internal Revenue Service to be $144, and a check in that amount was sent by Elmwood Village to Seidel.

The trial court considered evidence of this adjustment or roll-back and determined that the refund represented an overcharge in rent for the period involved and reduced the monthly rent of each defendant tenant by a proportionate amount of the refund. The court further ruled that even though the rent regulations expired on January 10, 1973, the monthly rent for April and May did not automatically revert to the prior level, and plaintiff’s attempt to raise it was invalid by reason of her failure to give proper notice to the tenants. The court thereupon determined the arrearages due from each defendant and entered an order for possession, but gave each defendant three days within which to pay the amount of the arrearages.

Plaintiff appeals, contending that (1) defendants failed to establish that the amount of the rent was less than that claimed by plaintiff and therefore she was not required to give notice to the tenants in order to be entitled to the original monthly rental; (3) the trial judge erred in considering the settlement arrived at between the landlord and the Internal Revenue Service in reaching the conclusion that the rent charged defendants was in violation of the federal regulations and in determining the amount of rent for each .apartment, and (3) the county district court did not have jurisdiction or power to reform, reduce or modify the original rental agreement.- Our careful study of plaintiff’s brief indicates that the actual thrust of her appeal is that the court ■erred in considering evidence of the refund or adjustment in rents agreed upon by Elmwood Village with the Internal Revenue Service in determining the monthly rental and the amount of arrearages due from each defendant.

Summary actions for possession may be instituted in accordance with N. J. S. A. 2 A :18-53, which in part provides:

Any lessee or tenant at will or at sufferance, or for a part of a year, or for 1 or more years, of any houses, buildings, lands or tenements, and the assigns, undertenants or legal representatives of such tenant or lessee, may be removed from such premises by the county district court of the county within which such premises are situated, in an action in the following cases:
* *• *
b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.

N. J. S. A. 2A:18-59 provides:

Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for unlawful proceedings under this article.

The latter statute permits review of the county district court judgment only on the question of lack of jurisdiction. In this regard, our cases in dealing with N. J. S. A. 2A:18-53 “have hewed a line separating the ‘jurisdictional’ issue from meritorious ones. The established principle is that the trial court had jurisdiction if there was evidence from which it could find a statutory basis for removal. If that test is met, the judgment must be affirmed even though it is otherwise infected with error.” See Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459, 464 (1961) ; Marini v. Ireland, 56 N. J. 130, 138 (1970); Terrill Manor, Inc. v. Kuckel, 94 N. J. Super. 25, 27 (App. Div. 1967), and Academy Spires, Inc. v. Jones, 108 N. J. Super. 395, 399 (Law Div. 1970).

The jurisdictional issue of “default in the payment of rent” set forth in N. J. S. A. 2A:18-53 encompasses the question of whether the amount of rent alleged to be in default is due, unpaid and owing, not only whether it is due and unpaid. Marini v. Ireland, supra, 56 N. J. at 139. Cf. Brookchester Inc. v. Matthews, 118 N. J. Super. 565, 571 (Cty. D. Ct. 1972), wherein the Bergen County District Court held that rent in excess of the rent allowed under the Price Commission Rules and Regulations promulgated under the Economic Stabilization Act of 1970 was not legally owing, and that the court had jiirisdiction in a summary dispossess proceeding to determine whether the rent was in excess of such rules and regulations.

Here, it is perfectly clear that the court below had jurisdiction to determine the amount of rent that was due and owing by each defendant and to determine the amount of the arrearages for the months of April and May. Plaintiff instituted these summary dispossess proceedings, and does not challenge the jurisdiction of the court on this appeal, but rather seeks to vacate and modify the judgments below in accordance with her contention as to the proper monthly rental due from each defendant. Obviously, this is a matter that may not be reviewed on appeal in view of the explicit language of N. J. S. A. 2A:18 — 59.

We note that matters determined in a summary action for possession under N. J. S. A. 2A:18-53, as in the 19 consolidated eases below, are not res judicata in a subsequent action between the landlord and tenant even over the same subject matter. Cf. Vineland Shopping Center, Inc. v. DeMarco, supra, 35 N. J. at 462; Academy Spires, Inc. v. Jones, supra, 108 N. J. Super, at 400; Schlesinger v. Brown, 116 N. J. Super. 500, 502 (Cty. D. Ct. 1971); 18 N. J. Practice (Mc-Donough, Landlord-Tenant Proceedings) (2d ed. 1971), § 1567 at 304.

Since the present appeal is not being pursued on the ground of lack of jurisdiction of the county district court in the summary dispossess proceedings, we have no jurisdiction over this appeal, and the appeal therefore is dismissed.


author: Handler, J. A. D.

text:
    JOHN E. PARKER, PLAINTIFF-RESPONDENT, v. MARSHA J. PARKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1974
    Decided May 8, 1974.

      Before Judges Coneokd, Handles and Meanok.

      Mr. Sam Weiss argued the cause for the appellant (Mr. John Cervase, attorney).

      Mr. Althear A. Lester argued the cause for the respondent.
   The opinion of the court was delivered by

Handler, J. A. D.

Each party sought a divorce based upon the 18-month provision of the Divorce Act. Several days before trial they entered into a property settlement agreement under which plaintiff was to pay defendant a gross sum of $1,000 in lieu of alimony. They also agreed that each would have the right to dispose of his or her personal and real property by last will and testament as if single. Apparently the money was paid at or about the trial date. At the trial the court approved the property settlement and plaintiff signed the agreement. Both' plaintiff and defendant were granted separation divorces in accordance with their respective pleadings. The judge stated specifically, “I will grant a dual judgment of divorce to each against the other.”

One week later plaintiff’s attorney submitted a proposed form of the final judgment to defendant’s attorney for consent as to form. The proposed judgment was not returned. Approximately two weeks later plaintiff was killed in an occupational accident. His attorney then brought a motion to enter the divorce judgment nunc pro tunc.

The court below, on the motion, entered the judgment nunc pro tunc. Its reasons are set forth in a written opinion appearing in Parker v. Parker, 122 N. J. Super. 347 (Ch. Div. 1973). In characterizing what transpired at the divorce trial, the judge stated (at 348) : “The divorces were granted at the conclusion of the trial and are contained in the minutes of the court.”

Defendant urges, however, that the entry of the judgment wane pro tunc was improvident because the divorce action abated on the death of plaintiff, since the actual judgment of divorce had not been formally entered or filed and consequently there was no final judgment prior to plaintiff’s death.

We disagree. It is clear that upon the close of the divorce trial the court made a definitive adjudication of the controversy, reflecting its conclusive determination that each party be granted a divorce. In this context, we subscribe to the view that the entry of a written judgment is essentially a non-discretionary act by which evidence of the judicial act is recorded.

The former practice in divorce proceedings is instructive. Prior to the enactment of N. J. S. A. 2A :34r-18, a judgment nisi was entered at the conclusion of the trial granting a divorce to either party. This was a conditional judgment of divorce which did not dissolve the marriage until the expiration of a three-month period after which a final judgment of divorce was entered. Loeb v. Loeb, 89 N. J. Super. 568, 574. (Ch. Div. 1965), mod’f. on other grounds 91 N. J. Super. 333 (App. Div. 1966), aff’d 50 N. J. 343 (1967); Dacunzo v. Edgye, 33 N. J. Super. 504, 513 (App. Div. 1955), aff’d 19 N. J. 443, 449 (1955). In such cases a final judgment of divorce could not be entered nunc pro tunc upon the death of a party prior to the expiration of the statutory waiting period, because the judgment nisi did not ripen into an absolute adjudication of divorce until the expiration of the prescribed time. Dunham v. Dunham, 82 N. J. Eq. 395 (Ch. 1913). In Vogler v. Vogler, 98 N. J. Eq. 421 (Ch 1925), and Hoyt v. Hoyt, 98 N. J. Eq. 426 (Ch. 1917), it was recognized that final judgments mine pro tunc could properly be entered following the entry of a judgment nisi notwithstanding the death of a party after the expiration of the statutory waiting period, since the surviving party would have then been entitled to the entry of such a judgment had the decedent not died.

Defendant in this action is attempting to reap the benefits of her husband’s death by alleging that the unfiled judgment of divorce was not a final judgment and, therefore, was not binding upon the parties thereto. As stated by the court below, “[t]he underlying conflict is the right to administration of plaintiff’s estate and various benefits that may accrue from Ms death.” Parker v. Parker, supra 122 N. J. Super, at 348. In essence, defendant is now trying to disavow her previous actions upon which plaintiff relied. She signed and agreed to a lump sum property settlement of $1,000, which she received and utilized. She thus acknowledged the fact that the divorce was final and that she no longer had a claim to any of her husband’s property. If plaintiff had not died, he would be entitled to have the written final judgment filed. Defendant should not be allowed to disclaim the finality of the divorce judgment after plaintiff’s death when she would not have been allowed to do so if plaintiff were alive.

Affirmed.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS CARROLL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 16, 1974
    Decided May 10, 1974.

      Before Judges Halpern, Matthews and Bischoee.

      Mr. Stanley C. Van Ness Public Defender, attorney for appellant (Mr. David R. Arrajj, Assistant Deputy Public Defender, on the letter brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Steven Jay Greenstein, Assistant Prosecutor, on the letter brief).
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant entered guilty pleas to charges of robbery and receiving a stolen automobile. Other charges then pending against him were dismissed. He was sentenced to an indeterminate reformatory term on the robbery charge with a ten-year maximum, and also to a consecutive, indeterminate reformatory term (with a five-year maximum) on the receiving charge. The only issue raised on appeal is the alleged excessiveness of the sentences. The reason assigned for excessiveness is that consecutive reformatory sentences are not called for under the circumstances presented.

Our review of the ease has given us pause to question the wisdom, if not the propriety, of consecutive reformatory sentences.

N. J. S. A. 30:4-148 provides that any male sentenced to a Youth Correctional Institution facility pursuant to N. J. S. A. 30:4-147 is to be committed for an indeterminate period not to exceed five years or the maximum sentence provided by law if such be less than five years. The reformatory sentencing alternative reflects the generally accepted view that the goal of correction is rehabilitation. In re Lewis, 11 N. J. 217, 224 (1953); State v. Horton, 45 N. J. Super. 44, 46 (App. Div. 1957).

Judge Preund, in Horton, enunciated the reason for the existence of the reformatory type of institution as follows:

Offenders * * * are sentenced to the reformatory in the hope that the associations there, being less contaminating than in State Prison, will, by suitable treatment and training, more likely foster rehabilitation. The theory is that placing the offender in a reformatory offers a better opportunity of social rehabilitation of the individual, [at 47-48]

The legality of consecutive reformatory sentences has been sustained. State v. Horton, above; State v. Prewitt, 127 N. J. Super. 560, (App. Div. 1974). In Horton this court was faced squarely with the question of the validity of consecutive, indeterminate reformatory sentences. It was concluded that such sentences were valid and no theoretical inconsistency between the consecutive sentences and the reformatory philosophy was found. Thus, it was stated :

No harmful effect need result from the practice of imposing a second reformatory sentence, since both the consecutive reformatory sentence as well as the original sentence may at any time be terminated when in the discretion of the board of managers the prisoner’s conduct so warrants, [at 48]

Other authorities are in accord with this philosophy. See e. g., Annotation, "Validity, Construction and Application of Provisions of Federal Youth Corrections Act (18 U. S. C., § 5010) Governing Sentencing and Behabilitative Treatment of Youth Offenders,” 11 A. L. R. 3d 499, § 20 (1972).

It strikes us, however, that this philosophy runs counter to the basic purpose of a reformatory as noted in Horton, above. As the recent American Bar Association study on “Sentencing Alternatives and Procedures” notes:

The function of the consecutive sentence should be similar to the function of the sentence imposed on habitual or dangerous offenders. Because of his repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk to the safety of the public. It would thus appear that he should be treated in a similar fashion. [§ 3.4(c) Commentary at 177]

Thus, it is suggested the consecutive sentence does not belong in a rehabilitative context. This is the general tenor of our “sentencing Manual for Judges,” see particularly, § 4.2F at 39-41 (1971); Frankel, “Lawlessness in Sentencing,” 41 U. of Cincinnati L. Rev. 1, 29-40 (1972); American Bar Association Standards (approved draft 1968), “Sentencing Alternatives and Procedures,” § 3.4, Commentary.

If an offender before a sentencing judge has been found guilty of two or more crimes which in the opinion of the judge, after examination of the events surrounding the commission of the crimes and the presentenee report, requires that the individual be confined for public safety, we question the use of the consecutive, indeterminate sentence in such instance. While it must be acknowledged that one immediately dangerous to public safety is not beyond rehabilitation, such a statement begs the question. If the sentencing judge believes the individual to be capable of rehabilitation, and ho otherwise qualifies (see N. J. S. A. 30:4-147), such person should be sentenced to an indeterminate reformatory term with an expressed maximum, thus leaving the question of his release where it properly belongs: in the hands of the institutional and parole authorities. Either a suspended sentence or a concurrent indeterminate sentence could be imposed for a second or third crime in such instance in order to ■ satisfy the requirement that a disposition be made for each offense before the sentencing judge. See “Sentencing Manual for Judges,” above, § 2.2 at 5.

While we do not question the conclusions of Horton and Prewitt, both above, that the consecutive, indeterminate reformatory sentence is legal, we suggest that recent advances in the field of penology suggest that the rationale of Horton is no longer valid.

We have examined the sentences before us in light of the principles just stated. Accordingly, we modify the sentences imposed by changing the consecutive, indeterminate reformatory term with a five-year maximum to a concurrent, indeterminate reformatory term with a five-year maximum.

The judgment of the Essex County Court is modified and as modified is affirmed.