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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. LOUIS JOSEPH LIPPOLIS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 9, 1969.
    Kolovsky, J. A. D., dissented.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Solomon Forman, Assistant Prosecutor, argued the cause for appellant (Mr. Robert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Frnest M. Our lis, Assistant Prosecutor, of counsel and on the brief).

      Mr. Richard Newman, Deputy Public Defender, argued the cause for respondent (Mr. Stanley 0. Van Ness, Public Defender, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

The State appeals from the dismissal by the Superior Court, Law Division, of an indictment for murder against defendant, pursuant to the act effectuating the Interstate Agreement on Detainers, L. 1958, c. 12 (N. J. S. A. 2A:159A-1 to 15). The dismissal was by reason of the State’s failure to bring defendant to trial within 180 days of his formal request therefor, as required by the act failing grant by the court of a continuance for good cause or tolling of the 180-day period for inability of defendant to stand trial.

The facts and circumstances, as well as the reasoning of the Law Division in support of its action, are fully set forth in Judge Rimm’s opinion, State v. Lippolis, 101 N. J. Super. 435 (1968), to which we herewith refer.

The factual statement of the Law Division may be amplified to the following extent. (1) Defendant was apparently unable to stand trial in New Jersey from September 11 to September 21, 1967, having been in attendance at a hearing in Philadelphia during that period. (2) While the Pennsylvania prison official to whom Miss White, principal clerk-stenographer in the Atlantic County Prosecutor’s office, spoke on September 8, 1967 concerning defendant’s availability for trial, admitted it was possible he told her that he would inform her in writing when defendant was available for trial, he averred that it was unlikely that he so advised her, since it was the practice of the office not to do so but to put other states having detainers on prisoners on continual inquiry for such information, the number of such detainers at any given time being too numerous to afford such service.

The crux of the case is whether the prosecutor’s motion for “continuance” of the 180-day period (N. J. S. A. 2A: 159A-3(a)) was out of time. On a straight calendar basis, that period expired November 1, 1967. Adding the ten days in September 1967 when defendant was presumably unable to be tried in New Jersey because of the Philadelphia engagement (N. J. S. A. 2A:159A-6(a)) would cause the 180-day period to expire November 11, 1967. The prosecutor sought no continuance until December 13, 1967, that action having been triggered by defendant’s motion for dismissal noticed the day before.

The State has not, below or here, challenged the principle we laid down in State v. Mason, 90 N. J. Super. 464, 474 (1966), that a prosecutor may not defeat a motion for dismissal by letting the 180-day period expire and seeking a continuance subsequently, after the motion for dismissal has been filed. It argues, instead, that the prisoner should he deemed to have been “unable to stand trial,” within N. J. S. A. 2A:159A-6(a), and the statutory period therefore tolled, between September 8, 1967, when Miss Yvhite had her first conversation with the Pennsylvania prison official, and November 14, 1967, when, on her renewed inquiry, she vras informed by him that defendant was available for trial. In addition to the trial court’s reasons for rejecting this contention (101 N. J. Super., at 444-445) we point out, as noted above, that the record herein indicates that defendant was actually unable to stand trial in New Jersey, if at all, only from September 11 to September 21, 1967.

The State’s real position in reference to this point is that defendant should be deemed to have been constructively unable to stand trial during the 67-day period claimed because the Atlantic County Prosecutor could justifiably rely on the absence of notice by the Pennsylvania authorities after September 8 of defendant’s availability. It is our view, however, that nothing but defendant’s actual inability to stand trial can toll the statute under the section cited. The prisoner cannot be saddled with the consequences of misunderstandings between the representatives of the two states. To the cases interpreting the legislative enjoinder of liberal construction of the act (N. J. S. A. 2A:159A-9) as calling for absolving prisoners from defaults of officers, cited in State v. Mason, supra (90 N. J. Super., at 470), add People v. Masselli, 17 A. D. 2d 367, 234 N. Y. S. 2d 929, 934 (App. Div. 1962). Defendant satisfied the statutory prerequisite of action on his part by causing notice of demand for disposition of the indictment to be served on both the prosecutor and the County Court. The Pennsylvania officials were not his agents in the sense that any fault by them in communication with the prosecutor’s office could operate to sacrifice his rights, particularly in circumstances like these, where the prosecutor’s office simply let the 180-day period go by without at least one final renewal of inquiry, which, if made, would have revealed the defendant’s availability for trial before expiration of the period. See also 101 N. J. Super., at 445-446.

The State argues, finally (it does not appear to have made this contention below), that since there is no statute of limitations for the crime of murder, the interstate detainer act should not be read to comprehend dismissals of indictments for that offense. We cannot agree. The pertinent section deals with the pendency of “any untried indictment * * * on the basis of which a detainer has been lodged against the prisoner” (Art. III). There is no exception for murder indictments. The general public policy for trial of all criminal indictments — murder and otherwise — bows to the express legislative determination, reflected by the enactment of the interstate agreement on detainers, that the strong public policy against neglecting indefinitely the disposition of indictments against persons incarcerated out-of-state shall be implemented by effective sanctions such as dismissals with prejudice to the extent specified by the statute. Indeed, the length of a prison term for murder potentially confronting a prisoner indicted therefor but presently serving a sentence for another crime makes the objectives of the act (N. J. S. A. 2A:159A-1) peculiarly apposite in such case. Unless this is to be another instance of “hard cases making bad law,” the matter should be treated just as though any run-of-the-mill indictment were involved.

The foregoing would suffice to dispose of this appeal were it not for the position taken in the dissent (not argued by the State) that State v. Mason, supra, should be overruled to the extent that it precludes the grant of continuances not sought by the State until after the 180-day period has run and the defendant has moved for dismissal.

It is said that the State’s strong interest in prosecuting criminal indictments and the absence of prejudice to defendant suggest a legislative intent to allow extensions of time for trial moved within a reasonable time after expiration of the 180-day period fixed by Article III. We made the point in Mason that to accept such a proposition, particularly where the defendant’s motion to dismiss has preceded the motion for continuance (usually activating it), would tend to defeat the salutary objectives of the act (90 N. J. Super., at 474). We shall return to this thesis, but we here point out that the language of the statute in this connection tends to verify a construction comporting with the evident underlying policy. Article III, after mandating trial within 180 days after demand, contains a proviso permitting the court “for good cause * * * [to] grant any necessary or reasonable continuance” (emphasis ours).

A continuance is the adjournment or postponement of an action pending in a court to a subsequent date. 17 C. J. S. Continuances § 1, p. 373. The term was obviously used here advisedly in the stated sense, the continuance being from a trial date statutorily mandated for no later than the expiration of the 180-day period. The action of continuing the matter is thus plainly contemplated for determination at or prior to the last day specified for trial in the absence of a continuance. To speak of “continuing” a matter set for trial no later than November 1 (or 11) by court action on December 13 is a misnomer which should not be attributed to the draftsmen of this act, particularly when the policy and purposes of the act would be subverted by such an interpretation, as we held in Mason. Such action is more in the nature of absolving a default.

Eequiring the continuance to be requested prior to the expiration of the period, moreover, keeps control of the trial date in the hands of the court. On the other hand, ratifying a lapse by the prosecutor by an extension nunc pro tunc, purportedly for “good cause,” but actually attributable to the prosecutor’s overlooking or inattention to the statutory requirement, renders the fortuitous period of the prosecutor’s inattention the measure of the defeat of effectuation of the statutory policy that the indictment be tried, basically, within 180 days, or dismissed. If the trial court has the power, it will in practice be loath to deny almost any application for validation of a prosecutor’s lapse, and the policy of the statute will suffer inevitable erosion.

Another obvious setback to policy inherent in the dissenting position is that it would encourage the prisoner’s delaying his motion to dismiss after the 180 days until a time late enough to prevent the State’s counter-motion for a "continuance” from being considered by the court as "reasonable.” Clearly, a defendant prima facie entitled to an immediate dismissal under the act should not be placed in the position of requesting it at his peril.

In short, every consideration geared to effective implementation of the policy of the act conduces toward reaffirmation of the rule of Mason. In view of the division of the Court in this case, it is appropriate to remind ourselves of the serious disadvantages of prisoners serving a term in one state but under detainer for untried indictments of another. This situation, relief of which is the heart of the policy of the interstate act, has been cogently summarized by Mr. Justice Stewart in Smith v. Hooey, 393 U. S. 374, 378-380, 89 S. Ct. 575, 577, 21 L. Ed. 2d 607 (1969) See also Note, 18 Rutgers L. Rev. 828, 833-34 (1964); Note, 77 Yale L. J. 767, 769-71 (1968).

Lastly, the incidence of absence of prejudice to defendant in the court’s allowing extensions of time not requested by the prosecutor within the 180 days, mentioned in the dissent, is quite irrelevant to the scheme and objectives of the act. The Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than 180 days after demand hut because such a sanction for failure to try defendant within a fixed, reasonable period, of time after demand was regarded as essential to produce general compliance with the statutory mandate. The sanction is a prophylactic measure to induce eompiiance in the generality of cases.

The 180-day period is merely the statutory analogue to the date fixed by the court (in nonstatutory cases) for trial of an indictment upon demand of a defendant for a speedy trial, where the State’s failure to move the trial on that date results in dismissal of the indictment. State v. Coolack, 43 N. J. 14, 16 (1964). The dismissal there is a comparable sanction to enforce the constitutional right to a speedy trial. In such a case absence of prejudice is also irrelevant.

We conclude with the observation that even if the trial court here had jurisdiction to exercise discretion in passing on the belated request for extension of time from the prosecutor, the instant case does not demonstrate justifying circumstances. As seen above, on such an application the contest is not simply between the interests of society in processing an indictment through trial and those of a defendant whose trial has been somewhat delayed. The choice is between compelling that defendant to go to trial and making the interstate agreement an effective instrumentality for inplementation of its policy by forceful illustration to all the State’s prosecutors of the consequences of their failure to follow it. That the prosecutor here did fail to follow it is evident.

Wo had decided Mason almost a year before the determinative events in the instant matter. There is no indication that the prosecutor or any legal assistant calendared the date of expiration of the 180-day period. Accepting the affidavit of the principal clerk-stenographer that on September 8, 1967 she was told by the Pennsylvania prison official that she would be informed when the prisoner was available for trial (although denied), there is no indication that the prosecutor or any responsible subordinate with knowledge of the terms of the act alerted the staff to make another inquiry before the 180 days expired so that either the defendant could be brought in to begin trial by that time or a continuance sought on any good reason then apparent. Indeed, even when belated inquiry on November 14 revealed that the prisoner was available (he had been, since September 21) the prosecutor’s office still did nothing to bring him to trial, and no one can say on the record before us when anything would have been done toward that end had the prosecutor not been stung into realization of his default and into action by the prisoner’s motion for dismissal on December 12. The prosecutor has not advanced “good cause” for any extension, if the statute is to be accorded any meaningful enforcement.

The State has abandoned the argument in its brief that defendant did not cause the statutory notice of demand to be delivered to the courts of Atlantic County.

Judgment affirmed.

Kolovsky, J. A. D.

(dissenting). If State v. Mason, 90 N. J. Super. 464, 473 (App Div. 1966), is correct in its holding that the statutory provision (N. J. S. 2A :159A-3 (a)) permitting an extension of the 180-day period for the trial of a defendant for good cause can be invoked only if the continuance had been granted prior to the expiration of the 180-day period, then I agree that we must affirm the trial court’s dismissal of the indictment with prejudice.

However, as I read the statute, it does not call for the interpretation adopted in Mason. The statute does not expressly limit the time within which a continuance may be granted to 180 days. As I read it, the statute permits the grant of “any necessary or reasonable continuance,” “for good cause shown in open court, the prisoner or his counsel being present” at any time prior to an actual entry of an order dismissing the indictment pursuant to Article V, N. J. S. 2A :159A-5(c). The latter section in referring to “the period provided in Article III or IV hereof” must be deemed to include not only the 180 days but such additional number of days as the court for good cause shown may grant pursuant to Article III, N. J. S. 2A :159A—3 (a). If the rule were otherwise, Article V would be self-executing, and it is not. See State v. West, 79 N. J. Super. 379, 387 (App. Div. 1963).

Nor do I find in the statute’s use of the word “continuance,” rather than the words “extension of time,” the significance which the majority opinion in the present case attaches to it. The power thus granted to the court to extend the time within which a defendant may be brought to trial beyond the 180 days referred to in the statute is not dependent on the court’s theretofore having fixed a trial date from which the continuance is to be measured. It is of interest to note that the instructions to prosecutors issued by the Council of State Governments with reference to the Interstate Agreement on Detainers recites that "Extensions of the time for beginning trial may be granted by the court for good cause, but the prisoner must be present or represented by counsel when a request for an extension is made.” (Emphasis added)

The trial judge was, of course, bound by the ruling of this court in State v. Mason. ECe therefore did not concern himself with whether “good cause” for a continuance was shown. Rather, he concerned himself only with whether any facts existed to bring the case within the tolling provision of the statute. Obviously they did not since the only provision in the statute providing for a tolling of the statutory periods is that set forth in N. J. S. 2A:159A-6(a), which reads:

“(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”

The question as to whether good cause exists for the grant of the continuance requested by the prosecutor’s cross-motion has not been decided. It should be, and this at a hearing at which all relevant facts and circumstances may be developed beginning with the indictment and continuing until the prosecutor’s motion was made.

In the absence of more specific guidelines in the statute, the question of whether good cause exists for a continuance must be resolved from a consideration of the totality of circmnstances in the particular case, on the background of the considerations which motivated the interstate agreement, as expressed in N. J. S. 2A :159A-1.

Of particular significance is the fact that nothing which the prosecutor did or failed to do was indicative of an intent not to prosecute the indictment. The record is to the contrary.

I am of the opinion that in such circumstances the statutory power of the court to grant a necessary and reasonable continuance for good cause is available to correct an inadvertent or a negligent oversight by personnel in the prosecutor’s office — and in the county clerk’s office in failing to send the copy of the prisoner’s request to the assignment judge — where, as here, the resultant delay is short and there is no showing that defendant, who had been represented by counsel at least since his request for trial was served, had been prejudiced thereby.

That the oversight should occur, whatever the explanation therefor, justifiably merits criticism of the prosecutor’s office. But the dispute is not a private controversy between the prosecutor and defendant. Cf. State v. Ashby, 43 N. J. 273, 276 (1964) The public interest is involved, as the statute recognizes by authorizing judicial extensions of the 180-day period for good cause.

I would reverse and remand the matter to the trial court for hearing on the merits of the prosecutor’s cross-motion.

       “At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed.? Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him. s
      And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 U. S. [213] at 221-222, 87 S. Ct. [988] at 992-998, 18 L Ed. 2d [1] at 6, 7. In the opinion of the former Director of the Federal Bureau of Prisons,
      ‘[lit is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination towards self-improvement.’^
      Finally, it is self-evident that ‘the possibilities that long delay will impair the ability of an accused to defend himself’ are markedly increased when the accused is incarcerated in another jurisdiction. Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired. And, while ‘evidence and witnesses disapj)ear, memories fade, and events lose their perspective,’10 a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.” (footnotes omitted)

       Por an example of language used to mandate that application for a continuance or extension be made within time fixed for original action, see R. 3 :18-2.


source: Caselaw Access Project

author: Lewis, J. A. D.

license: Public Domain

text:
    COUNTY OF GLOUCESTER, BOARD OF CHOSEN FREEHOLDERS, PUBLIC EMPLOYER-APPELLANT, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION, STATE OF NEW JERSEY, AND TEAMSTERS LOCAL UNION NO. 676, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSMEN AND HELPERS OF AMERICA, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 10, 1969.

      Before Judges Goldmans-, Lewis and Matthews.

      Mr. Frederick J. Rohloff argued the cause for appellant (Messrs. Archer, Greiner, Hunter & Read, attorneys; Mr. Charles Lee Harp, Jr. on the brief).

      Mr. Theodore A. Winard, Special Counsel, argued the cause for respondent Commission.

      Mr. Robert F. O’Brien argued the cause for respondent Union (Messrs. Plone, Tomar, Parks and Seliger, attorneys).

      Mrs. Priscilla Read Ghenowelh, Deputy Attorney General, argued the cause for Mr. Arthur J. Sills, Attorney General of New Jersey, amicus curiae.

   The opinion of the court was delivered by

Lewis, J. A. D.

The County of Gloucester, Board of Chosen Freeholders (herein county) appeals from a “Decision and Direction of Election” of respondent Public Employment Relations Commission (herein Commission) declaring that (1) certain “correction officers” of the county constituted a unit of employees appropriate for collective negotiations, as provided by N. J. S. A. 34:13A-6(d), and (2) the county “correction officers” were not “policemen” within the purview of N. J. S. A. 34:13A-5.3 which precludes policemen from joining an employee organization that admits to membership employees other than policemen.

We granted the Attorney General’s motion to appear amicus curiae in an advisory capacity “on a question of general public interest”. He argues in support of the county’s contention that the officers here involved are “policemen” and may not be represented by respondent Teamsters Local Union No. 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein union). He also argues, as do the Commission and the union, that the decision under review was an interlocutory order and that the appeal therefrom may not be maintained at this stage of the proceedings. R. 2:2-3 (a). The union joins with the Commission in urging that “correction officers” are not “policemen” as contemplated by the Legislature.

The Procedural Issue

The Commission made its determination on August 20, 1969 after a hearing on the union’s petition for certification as the exclusive bargaining agent for the Gloucester County correction officers excluding “all supervisors and all other employees.” The order of the Commission was subsequently implemented by the scheduling of a secret ballot election to be held on September 12, 1969.

In the interim the county, through its substituted attorneys, requested the Commission to reconsider its Decision and Direction of Election and stay the election. This request was denied and communication thereof was transmitted by telegram dated September 11, 1969, which reads in pertinent part:

* s= xhe Commission has found insufficient reasons to warrant a reopening of the hearing of May 2?, 1989 in which all parties participated fully or a reconsideration of its decision of Aug. 20, 1969. The American Arbitration Association will conduct the election as scheduled * * *.

The county filed its notice of appeal that same day, and, pursuant to R. 2:9-8 (“Temporary Eelief in Emergent Matters”), applied for a stay of the election to a single judge of this court, who, after a hearing in chambers, all parties being represented, denied the application for a stay, ordered the returns of the election impounded until futher order of this court, scheduled an accelerated date for oral argument on appeal and fixed a timetable for the filing of briefs and reply briefs.

In challenging the county’s right to appeal it is argued that an order for an election by the Commission is but one step in the administrative proceedings, and that a final appealable order does not, and should not, lie until the Commission, after an election and a determination by a majority of votes cast, has certified an elected employee representative. Otherwise, the argument runs, there is a possibility of an overriding judicial obstruction in the administrative processes designed to render quick decisions in “burning representation questions.”

We are referred to numerous federal eases for the proposition that representation decisions, under generally reeognized principles of labor law, are normally reviewable only where the dispute concerning the correctness of the certification “eventuates in a finding that an unfair labor practice has been committed.” Cited authorities include American Federation of Labor v. National Labor Relations Board, 308 U. S. 401, 60 S. Ct. 300, 84 L. Ed. 347 (1940); Boire v. Greyhound Corp., 376 U. S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849 (1964); McCullouch v. Libbey-Owens-Ford Glass Co., 131 U. S. App. D. C. 190, 403 F. 2d 916 (1968); Modern Plastics Corp. v. McCullouch, 400 F. 2d 14 (6 Cir. 1968). But cf. Leedom v. Kyne, 358 U. S. 184, 188, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958), and City Manager of Medford v. State Labor Rel. Com’n, 353 Mass. 519, 233 N. E. 2d 310, 314 (Mass. Sup. Jud. Ct. 1968).

We find those arguments and their supportive rationale unpersuasive. The Commission’s Rules and Regulations and Statement of Procedure (1969), § 19:15-6, provides specifically that, “An order denying a request for review shall constitute the final administrative determination of the Commission.” Additionally, section 19:11-19 (f) reads:

Within five (5) days after the tally of ballots has been furnished, any party may file * * * copies of objections to the conduct of the election or conduct affecting the results of the election * * *. (Emphasis added)

Thus it appears that the issue of whether the correction officers were policemen was resolved and determined by the Commission by an order which it refused to review in advance of the election and which arguably could not be raised as a bar to a certification of the election results. Moreover, practical considerations may compel judicial review prior to an election, particularly in circumstances where a statutory proscription has been called into question.

In the recent New York case of Civil Service Employees Ass’n v. Helsby, 31 A D. 2d 325, 297 N. Y. S. 2d 813 (Sup. Ct. App. Div.), affirmed 24 N. Y. 2d 993, 302 N. Y. S. 2d 822, 250 N. E. 2d 230 (Ct. App. 1969), the Appellate Division held that under the law of that state, declaring that an appeal could only be taken from a final judgment or determination, a certification of representation in a labor dispute is not a prerequisite to judicial review. The court said:

Judicial review at this time may avoid costly and time-consuming intermediate procedures. There would be no economy in deferring the question of the correctness of the Board’s determination until after all the proceedings required to ascertain and establish the employee representative * * *. Resolution of the issues in this proceeding at the earliest possible moment is in the best interest of the State and its employees. Unless there is some statutory prohibition, there is no reason to defer judicial review. [297 N. Y. S. 2d at 817]

On review by the Court of Appeals there was a per curiam, affirmance, with the comment: “The public importance of the issues raised in the proceedings requires prompt adjudication.” 302 N. Y. S. 2d at 823, 250 N. E. 2d at 231.

In any event if we entertained doubt as to the appeal-able finality of the Commission’s determination, we would resolve that doubt by considering the county’s notice of appeal as a motion for leave to appeal and would grant it in order to reach promptly the merits of the public issues involved. R. 2:2-3(b).

The Status of Correction Officers

The critical problem posed on this appeal is whether the decision of the Commission, that county correction officers are not policemen and therefore may be represented by the Teamsters Union, is consistent with the intendment of N. J. S. A. 34:13A-5.3 which provides that “no policeman shall have the right to join an employee organization that admits employees other than policemen to membership.”

The county asserts that the term “policemen” should include anyone who exercises police functions. Similarly, the Attorney General argues that the statutory designation “policemen” encompasses those who possess pofice powers. The Commission and union reassert the rationale and eonelusion of the Commission, that because guards at the correctional institution do not customarily exercise police functions or authority, they are not policemen.

Within our limited scope of review, as enunciated in Campbell v. Dept. of Civil Service, 39 N. J. 556, 562 (1963), we will not upset a State agency’s determination in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute. Our concern is with the latter criterion. See also Moorestown Tp. v. Armstrong, 89 N. J. Super. 560, 565 (App. Div 1965), certif. den. 47 N. J. 80 (1966); Amodio v. Civil Service Comm’n, 81 N. J. Super. 22, 30 (App. Div. 1963). Accord, United States v. First City Nat. Bank of Houston, 386 U. S. 361, 366-367, 87 S. Ct. 1088, 18 L. Ed. 2d 151 (1967).

We are unaided by any specific explication or definition of “policemen” in the legislative history of the statute in question, and therefore turn to the “most universal and effectual way of discovering the true meaning of a law, when the words are dubious,” which is, “by considering the reason and spirit of it; or the cause which moved the legislator to enact it.” 1 Blackstone Commentaries 61 (Lewis ed. 1933); McCaffrey, Statutory Construction, § 5, p. 13 (1953). In our approach to a construction of the enactment we focus upon statutes in pari materia and related acts, Brewer v. Porch, 53 N. J. 167, 174 (1969); Lynch v. Borough of Edgewater, 8 N. J. 279, 286 (1951), and our pertinent decisional law. We also examine analogous legislation of other jurisdictions and their judicial interpretations. See 3 Sutherland, Statutory Construction (3d ed. 1943), § 5902, p. 129; 50 Am. Jur., Statutes, § 323, p. 315 (1944).

A significant statute, N. J. S. A. 2A:15-4 (effective approximately three months before the petition for certification was filed in the instant matter) apparently was not argued before, nor considered by, the commission. It declares that:

All correction officers of the State of New Jersey ® * * shall, * * * in addition to any other power or authority, be empowered to act as officers for the detection, apprehension, arrest and conviction of offenders against the law. L. 1968, e. 427, § 1, efif. Jan. 27, 1969.

The quoted language is unambiguous and plainly vests in correction officers specific powers and duties commonly exercised by the police. When that statute is read with the aforementioned provision of N. J. S. A. 34:13A-5.3, we think it to be apparent that the Legislature was seriously concerned with preventing law enforcement officers, authorized to make detections, apprehensions and arrests, from joining an emploj'ees’ union which might place them in a conflicting position and create circumstances for possible divided loyalty or split allegiance. Compare the analogous policy fostered by 29 U. S. C. A. § 159(b), which precludes guards from joining a labor union if that organization includes member employees other than guards. National Labor Relations Bd. v. American Dist. Tel. Co., 205 F. 2d 86, 89 (3 Cir. 1953).

The policeman of today has developed from the watchman of early days; he was unknown at common law. In current usage, however, the term “policeman” is given a broad meaning. See 16 McQuillin, Municipal Corporations (3d ed rev. 1963), § 45.06, pp. 640-641. In Levine v. State, 110 N. J. L. 467, 469 (E. & A. 1933), Justice Heher for the court approvingly referred to the following paragraph from 2 Cooley’s Constitutional Limitations (8th ed. 1927), p. 1223:

The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.

By statute jailkeepers are under the control of the county sheriff, and they possess the same power and authority as constables. N. J. S. A. 30 :8-18. The position of a constable has been held to be that of a “conservator of the peace, civil officer, and ministerial officer of the courts.” Caldaro v. Ferber, 39 N. J. 314, 318 (1963). And, as stated by the Supreme Court of Missouri, “Certainly, the actual keeping and custody of prisoners confined in a jail is the performance of an inherent and naked police function.” State ex rel. Priest v. Gunn, 326 S. W. 2d 314, 325 (Mo. Sup. Ct. 1959). Contra, City of Atlanta v. Bailey, 70 Ga. App. 711, 29 S. E. 2d 514 (Ct. App. 1944), and In re Ronny, 40 Misc. 2d 194, 242 N. Y. S. 2d 844 (Family Ct. 1963), which cases considered correctional guards not to be policemen because (unlike their status in New Jersey) they were unauthorized to make arrests.

Here the Commission recognized that correction officers are authorized to exercise police powers but concluded, as it did, upon findings that the county correction officers were prison guards, “not armed” and “not called upon to exercise the police powers conferred.” The legislative objective cannot be frustrated by such narrow reasoning. Nonrecourse by guards, in the past, to their reserved authority is no basis for assuming that they may not, in the future, be required to exercise such authority in order to prevent violations of the law.

Moreover, the fact that county correction officers are unarmed does not negate their statutory right and duty, in appropriate circumstances, to detect, apprehend and arrest. Cf. State v. Grant, 102 N. J. Super. 164 (App. Div.), certif. den. 53 N. J. 62 (1968), wherein this court, in a proceeding that involved the prosecution of a prisoner for assault and battery on a correction officer on duty at the Essex County Penitentiary, stated that “overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators.” 102 N. J. Super., at 168.

On the record before us we hold that the “Decision and Direction of Election” by the Commission is incompatible with the reason and spirit of N. J. S. A. 34:13A-5.3 in that it violated an implicit legislative policy. The Commission erred when it determined that the county correction officers were not policemen within the purview of that statute and that they could join a union which admits employees other than policemen to membership. In view of these conclusions it is unnecessary, for purposes of this opinion, to decide whether the county correction officers constitute an appropriate unit for collective negotiations.

Accordingly, we reverse the Commission and vacate the election held on September 12, 1969. The order of this court impounding the results of the election will he continued until further order of court.


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

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT, v. JOSEPH N. APPLEGATE, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 6, 1969
    Decided October 10, 1969.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Garry J. Boettger, Deputy Attorney General, argued the cause for appellant (Mr. Arthur J. Sills, Attorney General, attorney; Mr. Stephen 8Jcillman, Deputy Attorney General, of counsel).

      Mr. Edward W. Haines argued the cause for respondents (Messrs. Haines, 8chuman & Butz, attorneys for defendants Applegate).
   Goldmann, P. J. A. D.

Plaintiff appeals a Law Division judgment awarding defendants $25,000 in condemnation following a jury trial.

On November 10, 1967 the Commissioner of Transportation instituted condemnation proceedings, and on that day filed a declaration of taking and an order for payment into court of the estimated value of the tailing, $1,850. That amount was deposited with the clerk of the court. Lis pendens was filed November 13 and defendants received a copy of the declaration of taking on November 11.

The property to be taken is described in an exhibit attached to the complaint. The State sought condemnation of a 45' x 14' strip along Clifton Avenue, running from Route 31, together with a slope easement adjacent thereto ranging from 3' to 6' in depth. The slope easement included the right to top-soil, seed, plant trees, vines and shrubs, and to maintain the same so as to stabilize the soil, prevent erosion and improve the aesthetic aspects of the highway. The description of the strip and slope was contained in the declaration of taking as well as in the lis pendens.

The condemnation commissioners fixed the value of the taking, including damage to the remainder of defendants’ property, at $18,000. The State appealed and demanded a jury trial. Just prior to trial counsel for the Commissioner of Transportation moved to amend the complaint, as well as the map attached thereto, by altering the slope easement provision so as to show that defendant owners would have access to and from Clifton Avenue. Defendants opposed the attempted amendment, claiming it had come too late and that the taking had been consummated by the procedures followed by the Commissioner. The judge required the filing of a formal motion. The owners opposed the motion on the grounds just mentioned, as well as for the reason that the only matter to he determined by the jury was the amount the State had to pay for the taking described iu the complaint. The motion was denied. The jury trial followed, resulting in an award of $25,000.

On this appeal the State argues that a fair and just settlement required that the State be permitted to amend its complaint to conform to the Commissioner’s intent as shown in the detailed construction plan, and “to clear up any possible ambiguity concerning the easement rights being acquired.” It argues that amendments are freely given when justice requires, and that in passing upon a motion to amend, the trial judge must exercise sound judicial discretion in light of the factual situation then existing.

The detailed construction plan was never made known to defendants but remained in the files of the Department of Transportation. Although that plan indicated there would be curb cuts which would have allowed ingress and egress to and from Clifton Avenue, neither the plan attached to the complaint nor the description contained in the exhibit attached to that pleading show such cuts. It is obvious that whoever prepared the description did not employ language which would have clearly informed defendants of the curb cuts appearing in the construction plan prepared the Commissioner.

In the interests of justice, the State should have specified that there would be access from Clifton Avenue. In Mueller v. N. J. Highway Authority, 59 N. J. Super. 583 (App. Div. 1960), this court observed that

Where property is conveyed to or condemned by a governmental authority for general highway purposes, such conveyance or condemnation does not preclude or extinguish the abutting owner’s right of access onto that highway unless the taking instrument expressly indicates a contrary intention or unless it can be said that the abutting owner’s loss of access rights was within the contemplation of the parties at the time of the taking and was therefore compensated for in the consideration or damage award. [Citations omitted; at 592]

N. J. S. A. 27:7-22, the statute under which the condemnation proceedings were instituted, provides in pertinent part:

Upon the filing of the declaration and the depositing with the clerk of the Superior Court the amount of the estimated compensation as stated in the declaration, the department, without other process or proceedings shall he entitled to tho exclusive possession and use of each tract or parcel of property described in the declaration and may forthwith enter into and take possession of said property, it being the intent of this provision that the action to fix (he compensation to be paid or any other proceeding relating to the taking of suck property or interest therein shall not delay the taking of possession and the use thereof by the department for purposes authorized by this act. The department shall not abandon any condemnation proceeding subsequent to the date upon which it has taken possession of the property as herein provided. [Emphasis added]

This legislation stemmed from the report of the Eminent Domain Revision Commission of April 15, 1965 and was enacted by L. 1965, c. 79, as amended by L. 1966, c. 155.

Defendants argue that, in effect, title passed with the filing of the declaration of taking, the order to pay into court, and payment of the $1,850 to the clerk. The basis for this claim is the Eminent Domain Revision Commission report just mentioned which, in paragraph 7, stated that the Commission recommended that title pass to the condemning agency upon the earliest of four certain events, the second being the date of filing of the declaration of taking. The defect in this reasoning is that the statute contains no such provision. We observe that the Federal Condemnation Act, 40 U. S. O. A. § 258a, expressly so provides. That statute was enacted in 1931 and long pre-existed N. J. S. A. 27:7-22. The New Jersey legislation did not embrace the federal provision nor carry out the recommendation of the Eminent Domain Revision Commission.

N. J. S. A. 27:7-22, quoted above, states that the Department of Transportation “shall not abandon any condemnation proceeding subsequent to the date upon which it has taken possession of the property * * Defendants admit that the Department has not yet taken possession; they still have access to their gasoline station from Clifton Avenue. In light of this fact and the particular circumstances attending this case, plaintiff should have been allowed to amend the complaint and its accompanying description and map.

Accordingly, we conclude that the matter should be remanded to the condemnation commissioners who, following an amendment of the complaint, description and map, shall consider anew the value of the taking and the damage to defendant’s remaining property. In view of the fact that defendants have been put to an unnecessary expense, plaintiff is to pay defendants the costs incurred on this appeal. We do not retain jurisdiction.


author: Labrecque, J. A. D.

text:
    WILLIAM VAN DER WOUDE AND MARIAN VAN DER WOUDE, PLAINTIFFS-RESPONDENTS, v. MILDRED GATTY, INDIVIDUALLY AND MILDRED GATTY, EXECUTRIX, ETC., ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 15, 1969.

      Before Judges Kilkenny, Lajjjrjeoqtte and Leonabd.

      Mr. Robert C. Pollock, Jr. argued the cause for appellants (Mr. Robert F. Colquhoun, attorney).

      Mr. Amos C. Saunders argued the cause for respondents (Messrs. Bobrin, Muscarella & Saunders, attorneys; Mr. Aaron Bines, on the brief).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Mildred Gatty, individually and as executrix of her husband’s estate, appeals from a judgment in favor of plaintiffs based upon a jury verdict, and from the denial of her motion for a new trial or for judgment n.o.v.

On February .26, 1966 plaintiff Marian Van Der Woude and her husband William Van Der Woude were visiting Mrs. Gatty, Mrs. Van Der Woude’s aunt, on the occasion of the latter’s birthday. They arrived at about 6 :30 P.M., and during the course of their departure some four hours later Mr. Van Der Woude sustained a fall while leaving the premises by way of the front porch and steps.

There was proof that the building in question was a two-family one owned by Mr. and Mrs. Gatty (he died after suit was instituted). They lived in the first-floor apartment and tenants occupied the apartment on the second floor. Entrance from the street to both apartments was by a porch and steps at the front of the building. There was a light fixture on the porch but the light had not been turned on at the time of the accident. Mr. Van Der Woude slipped and fell on a patch of ice on the first step. It was “bitter cold” on the evening of the accident although the afternoon had been “clear and sunny.” There had been a previous snow, and snow and ice had been melting during the day. Immediately after the accident icicles were observed hanging down from the roof over the first step.

Although defendant’s brief raises seven points, the core issue here is the duty owing plaintiff Van Der Woude at the time of the accident. Defendant advances a twofold argument: (1) she owed no duty to him other than that owing to a social guest, and (2) assuming the contrary, it was error to permit recovery based upon a finding that his status was that of an invitee in view of the state of the pleadings and pretrial order, and of plaintiffs’ opening.

It would appear clear that while visiting in the Gatty apartment plaintiffs came under the classification of what has been loosely denominated as social guests. The duty owing to one in that category is somewhat less than that owed an invitee on the premises. Berger v. Shapiro, 30 N. J. 89, 97-99 (1959). However, since it was not disputed that the porch and steps where Mr. Van Der Woude fell were furnished for use in common by the occupants of the two apartments, the trial judge charged the jury that Mr. Van Der Woude, while using them, was an invitee of the owners, to whom the duty of exercising reasonable care was owing. See Snyder v. I. Jay Realty Co., 30 N. J. 303, 313 (1959). Defendant urges that, while the rule thus charged was correct as a general principle, it was subject to an exception which precluded liability for failure to exercise reasonable care where the injured person was using a common stairway following a social visit to an owner of the building who also resided there. We disagree.

In Taneian v. Meghrigian, 15 N. J. 267 (1954) it was held that where the owners of a multi-family dwelling maintained a common stairway for access to the apartments, the duty of reasonable care owing to persons visiting tenants extended to a plaintiff who was injured on a common stairway following a social call on one of the owner occupants of an apartment in the building. Defendant urges that Taneian is distinguishable and should not be applied here, principally because (1) there the court was dealing with a 14-family apartment subject to the Tenement House Act, N. J. S. A. 55 :1-24, and (2) the building had more than two owners (Meghrigian and Najarían), whereas here there was but one.

We find no basis in the court’s reasoning in Taneian for restricting its application as defendant urges. There is nothing to suggest that if both Meghrigian and Najarían had resided in the apartment (as, indeed, did Mr. and Mrs. Gatty here) the duty owing to Taneian would be less than that owing to an invitee, or that liability depended upon the status of the building as a tenement house. On the contrary, the court held:

[BJy the same token, the landlord who is also a dweller in a unit of a multi-family house is under the same duty of care to his own social visitors as the guests of all other tenants in their use of the common passages: for this is a common-law tort liability arising out of the reservation of possession and control of the common facilities for their mutual material wTelfare, a relation radically different from that obtaining in the dwelling unit itself. This would seem to be axiomatic truth, once the basic principle is taken into account. Giving due regard to the difference between invitation and mere permission, there was here an invitation implied from conduct and use. Plaintiff was not, on the occasion oí ihe mishap, “an ordinary guest in a dwelling house,” where the guest “for the time being becomes a member of the family of the host, entitled to the protection thrown about the household.” Comeau v. Comeau, 285 Mass. 578, 189 N. E. 588, 92 A. L. R. 1002 (Sup Jud. Ct. 1934). The unreason and illogic of applying the social visitor doctrine fo this case is manifest, [at 281-282]

We hold with the trial judge that at the time plaintiffs were in the process of proceeding from Mrs. Gatty’s apartment to the street by way of the porch and stairs furnished by her and her husband, as owners, for the common use of the occupants of the building, they were invitees of the owners to whom the duty of reasonable care was owing. The social visit ended when plaintiffs left the apartment. On the stairway they had, as to the owners, the same status as social visitors to the other tenants. Taneian, supra, at 281. As owners, the Gattys were already duty-bound to exercise reasonable care to keep the common passageways reasonably safe for guests of the tenants on the second floor, and it is clear that liability would have attached had plaintiffs been visiting the latter. The degree of care required by them would have been the same had there been three instead of two apartments in the building. We see nothing in reason or logic to support a rule which would hold that the owners were not liable to plaintiffs here, but had the latter stopped on the way out to visit the tenants on the second floor and then fallen, the owners would have been liable.

We find no factual support for defendants’ contention that the case was submitted to the jury on a theory other than that on which plaintiffs had relied up to the time of trial. Defendants’ argument is that plaintiffs were estopped from asserting that the law applicable to the Yan Der Woude cause of action was other than that applicable to a social guest injured while in the home of his hostess. In the complaint plaintiffs are neither directly nor indirectly-referred to as social guests of Mr. and Mrs. Gatty. In the pretrial order, while plaintiffs’ factual contention is that they had been guests in defendant’s home, they contended that the accident occurred on the front stairwaj'- as they were leaving; that it was a common stairway for all tenants living on the premises; that defendants were responsible for its maintenance, and that by reason of defective and improper drains on the porch roof water was allowed to drip onto the stairway where it froze and created a dangerous and hazardous condition. While plaintiffs’ attorney in opening to the jury mentioned that when his clients “stopped for a social call” they became “social guests,” he made it clear that the accident did not occur in the Gatty apartment but on the front steps, as to which he raised the contentions as to negligence referred to above. We find no objection to his opening, no motion to strike any part of it and no motion for an adjournment such as would have been in order had plaintiffs been introducing a new issue into the ease.

Once plaintiffs adduced facts which established that the accident occurred at the place and in the manner contended by them, it became the duty of the court to charge the law applicable to such a state of facts.

We have considered the remaining grounds urged for reversal and find them to be without merit. Here the testimony indicated that the injured plaintiff was caused to fall by reason of a slippery patch of ice on a common stairway. The jury could have concluded that the condition was a hazardous one and arose through the substandard construction of the porch roof. It could also have concluded that had the porch light been turned on by Mrs. Gatty, he might have detected the presence of the ice in sufficient time to avoid it. We are satisfied that, in the context of the proofs, the jury was correctly charged, as to the issues and the law applicable. The trial judge properly denied defendant’s motion for a judgment n. o. v. and, considering the limited scope of our review, we cannot say that the denial of her motion for a new trial amounted to a manifest denial of justice. Kulbacki v. Sobchinsky, 38 N. J. 435 (1962).

Affirmed.


author: Per Curiam. Gaulkin, S. J. A. D.

text:
    CATHERINE WEBER, INDIVIDUALLY AND ON BEHALF OF WILLIAM GEORGE WEBER, A MINOR, PETITIONER-RESPONDENT, v. WESTERN ELECTRIC COMPANY, INC., A BODY CORPORATE, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 11, 1969
    Decided March 21, 1969.

      Before Judges Gaulkin, Collestbr and Labreoque.

      Mr. Louis J. Douglass argued the cause for appellant (Messrs. Mead, Gleeson, Hansen and Pantages, attorneys).

      Mr. Benjamin Madniclc argued the cause for respondent (Messrs. Madniclc, Milstein & Mason, attorneys).
   Per Curiam.

In this workmen’s compensation heart fatality case both the Division of Workmen’s Compensation and the County Court judge, in a de novo review, found that the decedent’s death was causally related to his work effort. We conclude that the findings of the County Court could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965).

Judgment affirmed.

Gaulkin, S. J. A. D.

(dissenting) : Perhaps some day death benefits will be paid to dependents of all workers. I would be in favor of that, especially when the worker has worked for years for one employer, as decedent did here. But that is not yet the law. Therefore, I had hoped that Close v. Kordulak Bros., 44 N. J. 589 (1965) would enable me to concur. However, a study of the record, and particularly the testimony of petitioner’s Dr. Goodman, forces me to the conclusion that the award is not supported by the evidence, however liberally that evidence is considered.

Decedent was 56 years old, overweight, five foot seven and weighing 215 to 225 pounds. In 1953-1954 he had been under the care of a doctor for diabetes, hut there is no evidence that thereafter, and until August 13, 1967, when he died, he had any medical attention for this or any other condition. His wife stated that he dieted. However, she testified that he had a good appetite, and apparently he was accustomed to eating large meals, for she testified that on the evening of his death she had prepared for his dinner chicken soup, roast beef, mashed potatoes and gravy, lettuce and tomatoes, corn on the cob and coffee.

On the day of his death he worked from 7 A.M. until 3 :30 p.m. with no complaint or sign of distress. He had been on vacation for the month of July. At about 3 :45 p.m. he went home with fellow employees in a car pool in which he rode as a passenger. The fellow employees testified that during the 36 mile drive to his home he exhibited no signs of illness and made no complaint; on the contrary, he “was kidding” one of his companions “about the Yankees” because the companion was a Yankee fan. He arrived home about 4:45 P.M. and died nearly 5 hours later.

Dr. Goodman testified that he died of a coronary thrombosis or a coronary occlusion caused by (1) physical exertion (2) emotional strain and (3) extreme heat. In answer to a hypothetical question, he said:

“In this particular individual I feel * * * there was sufficient strain and effort of a physical nature, and as [sic] a strain placed on him by his environment, and possibly, from what you have told me on the emotional aspects, such that he did develop increased heart rate, blood pressure, broke off the plaque and had his infarction.
Jiow, when these events occur in an individual symptoms or signs arise. The first one, of course, is severe chest pain which — I’m sorry, I should say chest pain which may or may not be very severe; shortness of breath; sweating; pallor; general malaise or weakness, a fall in blood pressure, which is shock; * *

As I have said, there was no evidence of chest pain, shortness of breath, pallor, general malaise or weakness or shock at any time during the day of his work or during the hour of his riding home. Quite the contrary. There was testimony of sweating during the ride home, but that testimony was that all of the occupants of the car were sweating, it being an August day. The first testimony we have of chest pain, etc. is from the widow who says she observed it when he got home. If the case presented merely a choice between believing her or not believing her, I would conclude that Glose requires me to accept her testimony, since it was accepted below. However, the problem is more fundamental than that.

Going back to the three elements relied upon by Dr. Goodman, I do not find in the record any proof of “extreme heat.” True, it was an August day but there was no proof of what the actual temperature was or that it or the humidity was extraordinary. Decedent worked in a room approximately 40 feet wide and 200 feet long containing 6 or 7 presses. He had worked in that room for three years. There is no suggestion that the room lacked proper circulation of air or that working in it was oppressive or that he or anyone else made any complaint about the heat or humidity.

I find in the record no evidence of the alleged emotional strain worthy of regard. Petitioner claimed that her husband’s tools had been stolen about August 2nd and that this caused him to be very aggravated and upset to the day of his death. Because of the loss of his tools it is alleged that he had to use a micrometer which he did not like. It was also testified that he had told his wife he was dissatisfied with the job (at which he had worked for 25 years) and that he had too many bosses. These matters were incorporated in the following hypothetical question which was asked of Dr. Goodman and to which he gave the following answer:

“Well, doctor, keeping in mind what I have just mentioned to you, the micrometer, and what process (hat had to do so far as the manufacturing process here was concerned, can you tell us with reasonable medical probability what effect, if any, did the loss of his tools have upon this worker, in addition to, as he stated, that he was dissatisfied with the job, and the only reason that he didn’t quit was the fact that he was working there so long, and as he further stated, that he had too many bosses.
Now, keeping those facts in mind, doctor, with reasonable medical probability what part, if any, did they play in the decedent’s death?
A. Well, from the way you have described it, this patient appeared to be under considerable emotional stress and strain from August, 2nd until the time of his death, and it is my opinion that this was a significant contributing factor to the, cause of his death.” (Emphasis ours.)

However, the evidence showed beyond any doubt that the tools were stolen in May, months before, and both the Division and the County Court rejected the August date as the date of the theft. That being the case, there was practically nothing left upon which to base the so-called “emotional strain.” Therefore Dr. Goodman’s conclusion that “this was a significant contributing factor to the cause of his death” was without foundation.

. As I have said. Dr. Goodman’s opinion stood on three legs — extreme heat, emotional strain and physical exertion. I doubt whether the opinion can stand after we eliminate, as I think we must, the two legs of extreme heat and emotional strain. But assuming that the opinion can stand on the one leg of physical exertion, I find that Dr. Goodman’s opinion was based upon a hypothesis not supported by the evidence. He was asked the following question and gave the following answer:

“Q. What part, if any, did his employment play in his death, with responsible medical probability, doctor, which I have outlined to you in the hypothetical question? A. Well, this patient apparently worked in a very — on that particular day in a very poor environment. You told me it was hot, muggy, and humid. Also, he engaged in considerable physical exertion: hoisting and moving coils, pulling them up by pulleys with his arms over his head,, transferred them to a machine, putting them into this machine for processing, and so forth.” (Emphasis ours.)

The fact of the matter is that the decedent pulled nothing up by pulleys with (or without) his arms over his head. Petitioner admits that there was no such testimony. Moreover, I find that the testimony does not support the hypothesis that decedent did any manual “hoisting.” In any event, “pulling [coils] by pulleys with his arms over his head * * *” alone is obviously a critical factor xtpon which the doctor gave his answer. Incidentally, neither that factor nor “hoisting” by decedent manually was contained in the hypothetical question. It was volunteered by the doctor and shows that he over estimated the physical exertion. In any event, his supposition of hoisting and “pulling * * * by pulleys with his arms over his head” being without foundation, his opinion based thereon falls with it.

It may be argued that Dr. Goodman spoke of “considerable physical exertion” but did not define it and therefore we should assume that he based his opinion on the facts given in the hypothetical question as constituting such exertion even though he added to them. But I do not see how we can ignore what he did add and say his opinion would have been the same without the addition.

It is argued further that even on the basis of the employer’s description of the work, Dr. Goodman said it contributed to his death. On cross-examination it was stated to Dr. Goodman that decedent sat while at work,. checked small metal pieces as they came out of the machine, stacked them, put a wire through them and then, “while in a sitting position, he would turn around” and put a stack of the pieces weighing 10 to 12 pounds on a “fiat” or pallet. The doctor said that assuming “that during the course of a working day, allowing for breaks, lunchtime, and so forth, approximately every 4 or 5 minutes'he lifted a twelve pound weight off the machine and plac.ed it on a fiat adjacent to him * * * I would consider this sufficiently exertional in a person with preexisting disease to have contributed to his death.”

The only proof of a preexisting disease was that in 1953 he learned that he had diabetes and thereafter he endeavored to diet but he had no further medical attention. At no time during the years he worked for Western Electric Company did he show any signs of illness or report any difficulties that indicated a preexisting disease. Hence, I have difficulty in understanding what preexisting disease Dr. Goodman was talking about.

In short, Dr. Goodman’s testimony seems to me to add up to no more than that decedent worked, therefore his death was work-connected.

I would reverse.


author: Per Curiam.

text:
    ARAM AJAMIAN, PLAINTIFF-APPELLANT, AND BERTHA HOFFMAN, PLAINTIFF, v. THE TOWNSHIP OF NORTH BERGEN AND MILTON J. MUSS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 2, 1969.
    Before Judges Kilkenny, Labbecque and Leonard.

      Mr. Aram Ajamian argued the cause for appellant pro se.

      Mr. Nicholas S. Schloeder argued the cause for respondents.
   Per Curiam.

The judgment is affirmed essentially for the reasons stated by Judge Lynch.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DENNIS TIETZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 10, 1969.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Morion Joel Qoldfein, assigned attorney, argued the cause for appellant.

      Mr. Arthur J. Timing, Assistant Prosecutor, argued the cause for respondent (Mr. Leo Eaplowiiz, attorney; Mr. Henry W. Jaeger, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant appeals from a conviction of being under the influence of a narcotic drug (N. J. S. A. 2A:170-8). The single issue before us is whether there was a denial of due process because he was examined by a police physician but not advised that he had the right to — and was not afforded an opportunity to — secure a contemporaneous, independent medical examination of his own.

Defendant was arrested for “loitering” on a Plainfield, N. J. street. (This charge was later dismissed when the ordinance was declared unconstitutional.) In the course of searching defendant at headquarters, the police discovered nine cellophane packets of a “white substance” which they had reason to believe was a narcotic drug. Defendant suddenly grabbed the packets, stuffed them into his mouth and fell to the floor. The police were unable to retrieve the packets before defendant swallowed them. In view of the emergent circumstances they immediately summoned the city physician, who proceeded to examine defendant and determined that he was under the influence of a narcotic drug. Defendant was then taken to a hospital where his stomach was pumped. He was subsequently returned to the police station where he was charged with violating N. J. S. A. 2A:170-8.

The State made no attempt to introduce into evidence an analysis of the contents of defendant’s stomach. He was convicted on the testimony of the doctor that he was under the influence of a narcotic drug at the time he was examined.

N. J. S. A. 2A:170-8 provides, in part,

Any person who uses or -who is under the influence of any narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Pood and^ Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.
In a prosecution under this chapter, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific narcotic drug or drugs, but it shall be sufficient for a conviction under this chapter for the State to prove that the accused did use or was under the influence of some narcotic drug or drugs as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Pood and Drugs), by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug.

It will he seen that the statute explicitly eliminates the need for proof that the accused was using or under the influence of any specific drug; it is sufficient if it can be established that he did “manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug.”

Defendant does not challenge the constitutionality of the statute. Nor does he address himself to the validity of the stomach pumping, a matter not involved here because the State did not rest its case on what was found in the stomach contents but on defendant’s physical condition at the moment he was examined.

Defendant questions the substantiality of the doctor’s testimony. The doctor testified that he had conducted some 200 examinations of a similar kind. His medical opinion that defendant was under the influence of a narcotic drug was based on a personal examination revealing fresh needle punctures on both of defendant’s arms, non-reaction of his eyes to light and constricted pupils. Such expert testimony may not be faulted as to its convincingly probative value.

Defendant relies heavily upon State v. Johnson, 87 N. J. Super. 195 (Cty. Ct. 1965), and urges that the rationale of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), should be extended to require law enforcement authorities, prior to making a medical examination incident to an alleged narcotics offense, to advise the suspect as to the importance of a medical opinion and to give him ihe opportunity to obtain an independent examination by a physician of his own choosing.

State v. Johnson does not support defendant’s present claim and is clearly distinguishable. Johnson was arrested and charged with being under the influence of a narcotic drug after he had been examined by the police department physician. He had several times requested that he be allowed to make a telephone call. The requests were denied. After he had been examined by the police physician he requested that he be examined by his own doctor. That request, too, was denied. Johnson was held in custody for 26 hours before being released. He denied using drugs and explained the márks on. his arms as the result of scratches received in his work as tree surgeon. His testimony went uncontradicted.

On review of his municipal court conviction the County Court held .that the denial of Johnson’s request for an independent examination by a physician of his own choice amounted to a denial of his constitutional rights, thereby depriving him of an opportunity to establish a defense. By •contrast, defendant in the present case did not request permission to have his own doctor examine him, and there is no claim that he was kept in custody for an extended period.

Defendant insists that even though he did not request an independent examination, the police were under an affirmative duty to inform him of his "right” to call his own doctor. In support he cites the progressive protection given an accused’s constitutional rights — specifically, the right to counsel and the privilege against self-incrimination — as articulated by the United States Supreme Court. He argues that the absence of a request for an independent examination did not constitute a waiver on his part, contending that the language quoted in Miranda, 384 U. S., at 472, 86 S. Ct. 1602, from the California case of People v. Dorado, 62 Cal. 2d 338, 351, 42 Cal. Rptr. 169, 398 P. 2d 361, 369-370 (Sup. Ct. 1965), should apply in the instant case. The Dorado court had said:

The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it.

Iii cases dealing with the right to counsel and with the privilege against self-incrimination, the United States Supreme Court was dealing with rights expressly provided in the federal Bill of Rights, and laid down procedures to guarantee their free exercise. The "right” which defendant claims is not one of the fundamental rights to he found in the Federal Constitution and recognized by courts as basic to our system of justice. The question here is, broadly, one of due process: was defendant dealt with fairly and reasonably? We conclude that he was.

Defendant refers ns to a number of decisions in sister-states, claiming that the courts there “reversed” convictions-where the accused had requested to have his own physician-present when he was examined by a police doctor and such request had been denied. Among the cases cited, only Starrell v. Midwest City, 374 P. 2d 777 (Okl. Ct. Crim. App. 1962), reversed a conviction on that ground. The other oases are dicta, e.g., In re Newbern, 55 Cal. 2d 508, 11 Cal. Rptr. 551, 360 P. 2d 43, 47 (Sup. Ct. 1961); In re Howard, 208 Cal. App. 2d 709, 25 Cal. Rptr. 590 (D. Ct. App. 1966); State v. Munsey, 152 Me. 198, 127 A. 2d 79 (Sup. Jud. Ct. 1956); Winston v. Commonwealth, 188 Va. 386, 49 S. E. 2d 611 (Sup. Ct. App. 1948) ; Paul v. State, 111 Ga. App. 13, 140 S. E. 2d 289 (App. Ct. 1966).

California, whose courts give strong support to procedural due process safeguards, have repeatedly held that refusal to permit an accused to obtain an independent medical examination constitutes a denial of due process by hampering him in the preparation of his defense. In re Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr. 80 (D. Ct. App. 1960); McCormick v. Municipal Court, 195 Cal. App. 2d 819, 16 Cal.Rptr. 211 (D. Ct. App. 1961); In re Martin, 58 Cal. 2d 509, 24 Cal. Rptr. 833, 374 p. 2d 80 (Sup. Ct. 1962). However, those courts do not require an affirmative duty on the part of police actively to solicit a request from an accused for an outside examination. For example, defendant in In re Koehne, 54 Cal. 2d 757, 8 Cal. Rptr. 435, 356 p. 2d 179 (Sup. Ct. 1960), claimed he was denied his constitutional rights because of the lack of an independent physical examination during drunken driving proceedings. The court rejected the claim, noting that the record was barren of any request by the accused and holding, in essence, that the authorities were tinder no duty to provide for such, an examination in the absence of a request:

It is significant, however, that the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused. Rather it is the accused who must act to protect his interest and it is only when he is denied * * * opportunity, reasonable under the circumstances, to procure a timely sample of his blood that he can properly claim a denial of due process.

See, also, McCormick v. Municipal Court, above, 195 Cal. App. 2d at 313; 16 Cal. Rptr. 211; In re Martin, above, 58 Cal. 2d 509, 24 Cal. Rptr., at 835; 374 P. 2d 801; In re Newbern, above, 55 Cal. 2d 508, 11 Cal. Rptr. 551, at 553, 360 P. 2d 43, 47; People v. Macknic, 257 Cal. App. 2d 370, 64 Cal. Rptr. 833, 836 (D. Ct. App. 1967). Although these cases dealt with convictions for driving under the influence of alcohol, the California courts have extended the same tests to narcotics charges. See People v. Macknic, at 836.

We hold that while police authorities are clearly under an obligation not to thwart the fundamental rights of an accused — specifically, his request for an independent physical examination — they are equally under no duty to construct his defense. To comport with due process the procedures followed need only be fair and reasonable, and if the evidence obtained by the police is to be challenged, it is the obligation of the accused to take affirmative action. Absent defendant’s actual and reasonable request to have an independant medical examination by his own doctor, there was no constitutional requirement that the police provide such service or solicit the demand from him.

One final matter. Defendant attempts to analogize from N. J. S. A. 39:4—50.3 (c), which deals with prosecution for drunken driving, noting that it provides fox an independent medical testing for intoxication by a person or physician of.the driver’s own choosing. N. J. S. A. 3A:170-8, under which defendant was charged, contains no such provision, but specifically permits of a conviction based solely on proof that the accused manifested physical and physiological symptoms or reactions caused by the use of any narcotic drug.

The judgment of conviction is affirmed.


author: Leonard, J. A. D.

text:
    STEPHEN LEWIS DALY, PETITIONER-RESPONDENT, v. EDWARDS ENGINEERING CORP., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 10, 1969
    Decided April 1, 1969.

      Before Judges Con ford, Kilkenny and Leonard.

      Mr. George J. Kenny argued the cause for Respondent-Appellant (Messrs. Pindar, McElroy, Connell & Foley, attorneys).

      Mr. Abram Simon argued the cause for Petitioner-Respondent (Messrs. Simon & Simon, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

In this Workmen’s Compensation ease, petitioner on July 9, 1963 was driving easterly on Alexander Avenue, Pequannock Township, on his way to work at respondent’s plant. He was injured when his automobile was struck by a train as he was traversing the tracks of the Erie Railroad. At the time he was struck, he had not as yet reached respondent’s premises, which are east of and contiguous to the tracks.

The sole question involved on this appeal is whether the facts of petitioner’s case bring it within the “special hazard” exception of the “going and coming” rule. The County Court found that they did and that petitioner had clearly established his right to eonpensation and reversed a decision to the contrary by the Division of Workmen’s Compensation.

Generally, where an employee is on his way to or from work and has not yet entered or has already left his employer’s premises he is not in the course of his employment and is therefore not entitled to a compensation award for injuries suffered at that time. See, e. g., Stallone v. Schiavone-Bonomo Corp., 103 N. J. Super. 170, 173 (App. Div. 1968); Ricciardi v. Damar Products Co., 45 N. J. 54, 61 (1965); Moosebrugger v. Prospect Presbyterian Church, 12 N. J. 212, 214 (1953). However, there is a noted exception to this general rule. “[I]f an employee suffers an accident and resulting injuries caused by the use of a means of ingress and egress to and from the place of employment, in connection with which there is a hazard or risk more or less immediately adjacent thereto, such accidents are considered to have risen out of and in the course of the employment and the injuries are, therefore, compensable.” Fenton v. Margate Bridge Co., 24 N. J. Super. 450, 457 (App. Div.), certification denied 12 N. J. 350 (1953).

The fact that the accident happens upon a public highway and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of sufficient causal relationship to the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree. Cudahy Packing Co. of Neb. v. Parramore, 263 U. S. 418, 424-426, 44 S. Ct. 153, 68 L. Ed. 366 (1923); Greydanus v. Industrial Accident Commission, 63 Cal. 2d 490, 47 Cal. Rptr. 384, 407 P. 2d 296 (1965); Johannsen v. Acton Construction Co., Inc., 264 Minn. 540, 119 N. W. 2d 826 (1963); Jaynes v. Potlatch Forests, Inc., 75 Idaho 297, 271 P. 2d 1016, 50 A. L. R. 2d 356 (1954). Cf. Arrington v. Goldstein, 23 N. J. Super. 103 (App. Div. 1952).

Fenton v. Margate Bridge Co., supra, and Gullo v. American Lead Pencil Co., 119 N. J. L. 484 (F. & A. 1938) are not to the contrary. In both of these cases compensation was denied to an employee who was injured on a public highway while on his way to work, not per se for the reason that he was on the highway, but rather because the hazard confronting the employee at the time was no greater than the hazard to which all other users of the highway were confronted and the factor of peculiar susceptibility to injury because of special relationship to the work situs was not presented.

Likewise, the fact that there may have existed an alternate means of ingress or egress to or from the employer’s plant, other than the one chosen by the employee, does not of itself bar petitioner from compensation. See Bountiful Brick Co. v. Giles, 276 U. S. 154, 48 S. Ct. 221, 72 L. Ed. 507, 66 A. L. R. 1402 (1928); Basinski v. Detroit Steel Corp., 2 N. J. Super. 39 (App. Div. 1949); Johannsen v. Acton Construction Co., Inc., supra; United States Fidelity & Guaranty Co. v. Gagne, 103 N. H. 420, 174 A. 2d 406 (1961); Jaynes v. Potlatch Forests, Inc., supra. Cf. Bryn v. Central R. R. Co. of N. J., 114 N. J. L. 534 (Sup. Ct.), affirmed 115 N. J. L. 508 (E. & A. 1935).

In Bountiful Brick Co. v. Giles, the employee at the time of his injury was using the more convenient, although not the safest, means of access. The court, in affirming an allowance of compensation to the employee, noted (at 159 48 S. Ct. 221) that the chosen means had been habitually used by the employee with the employer’s full knowledge and acquiescence, and without objection.

Likewise, in Basinski, the court based its affirmance of an award to an employee who was injured while using an alternate access route from her employer’s place of business, in part, upon the fact that the route selected “liad been used openly and continually by the petitioner and other employees over a long period of time and that no objection whatever had been voiced,” (2 N. J. Super., at 41).

Although the court in Bryn denied compensation to an employee who used one of two available access routes, its determination was based upon the conclusion that the proofs failed to establish that the employee used the selected route “in accordance with his apparent custom and from which user there could be spelled out an implied authority on the part of the employer for his [employe] so doing,” (114 N. J. L. at 540).

In sum, the determination of whether a given case falls within the “special hazard” exception to the “going and coming” rule cannot unfailingly be made upon the basis of an exact formula. Each case must depend upon its own peculiar facts and circumstances. Cudahy Packing Co. of Neb. v. Parramore, supra, 263 U. S. at 424, 44 S. Ct. 153. Fenton v. Margate Bridge Co., supra, 24 N. J. Super., at 460; Bryn v. Central R. R. of N. J., supra, 114 N. J. L. at 539.

“The various exceptions adopted [to the ‘going and coming’ rule] have in turn brought back into sharper focus the basic statutory test of compensability, that is, whether under the facts and circumstances of the particular situation the injury arose out of and in the course of employment. * * * Application of this basic test to the facts in a given case must be engaged in with an appreciation of the beneficent social purposes of workmen’s compensation. When so applied, if it can be said reasonably that the employee is serving an incidental interest of his employer at the time' of injury, the right to compensation exists.” O’Brien v. First Camden Nat. Bank & Trust Co., 37 N. J. 158, 163 (1962).

We consider the pertinent facts here present. Petitioner, in selecting Alexander Avenue as means of reaching respondent’s plant on the day in question, was using the route that he customarily and normally used to enter the plant during the entire time of his emplojunent. The selected route was the shortest and most convenient one available to him. The other available route (the use of which would not require him to drive over the railroad tracks) was over the private property of one Samuel Braen. The latter apparently had given oral permission to respondent for its employees to drive over his property. However, respondent never gave its employees any specific oral or written instructions as to which route they should use nor did it prohibit the use of Alexander Avenue. A majority of the regular employees customarily used Alexander Avenue. So did Mr. Edwards, the owner of respondent, and members of the supervisory staff.

Alexander Avenue, although a public road, was not a road generally used by the public. At the time of the accident the paved portion thereof ended at the railroad tracks. Respondent’s plant was the only business or building east of the tracks. Only persons having business with respondent would travel so far east on Alexander Avenue as to cross the tracks. Respondent’s plant was located just east of and was immediately adjacent to the tracks. It conld not be reached through Alexander Avenue without traversing the tracks. There was a railroad siding connecting the main tracks to the plant, which siding was used by respondent for receiving and shipping.

Under all the facts and circumstances here present, we find that the hazard incident to crossing the railroad tracks was a danger to which petitioner, by reason of and in connection with his employment, was “subjected peculiarly or to an abnormal degree.” Cudahy, supra, 263 U. S. at 424, 44 S. Ct. at 154. Therefore, we conclude that his claim falls within the “special hazard” exception to the “going and coming” rale and that his injury arose out of and in the course of his employment. O’Brien, supra, 37 N. J. at 163.

Judgment affirmed.


author: Halpern, J. A. D. Sullivan, P. J. A. D.

text:
    CHARLES ROTHFUSS AND JUANITA ROTHFUSS, PLAINTIFF-APPELLANT, v. BAKERS MUTUAL INSURANCE COMPANY OF NEW YORK, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 17, 1969.

      Before Judges Sullivan, Carton and Halpern.

      Mr. John D’Amico, Jr. argued the cause for appellant (Messrs. Drazin, Warshaw, Auerbach and Rudniclc, attorneys).

      Mr. Isidor Kalisch argued the cause for respondent (Mr. George H. McElroy, attorney).
   Halpern, J. A. D.

The narrow issue before us is whether an employee who suffers a compensable accident can maintain a common law action against his employer’s insurance carrier for alleged wrongful and wanton acts of such carrier, resulting in injuries to the employee, which are not compensable under the Workmen’s Compensation Act.

The trial court answered the issue in the negative and granted defendant’s motion for judgment on the pleadings (erroneously termed summary judgment) and dismissed the complaints of the injured employee, plaintiff Charles Roth-fuss, and his wife Juanita, who had sued per quod. For convenience the Rothfusses will be referred to as plaintiff. Defendant’s motion for judgment was not supported by affidavits or depositions; it merely filed a brief and relied on the pleadings. Plaintiff relied on affidavits filed by his attorney and himself, which were uncontradicted. This appeal followed.

Oil this motion the court must assume the truthfulness of the allegations in plaintiff’s pleadings and give him the benefit of all reasonable inferences arising therefrom, and is called upon to decide only whether, as a matter of law, a cause of action has been stated.

Plaintiff, in the first and second counts of the complaint and supporting affidavits alleged the following: On July 26, 1966 he was an employee of Rascal House, Inc. and sustained a compensable injury. Due notice of the injury was given defendant on that same day. Defendant, the insurance carrier for plaintiff’s employer, negligently, willfully and wantonly failed and refused to provide medical treatment to plaintiff, contending he had not sustained a compensable injury. In the third and fourth counts plaintiff alleged that on September 27, 1967, at the request of defendant, he was admitted to a hospital in Long Branch, New Jersey, for examination and treatment under the supervision of Dr. Donohue, who was employed by defendant. Thereafter Dr. Donohue performed a myelogram and reported to plaintiff and defendant that plaintiff’s condition required an operation to remove a disc. On three occasions plaintiff was prepared for surgery, hut each time it was cancelled on defendant’s refusal to authorize it. He charges he was confined to the hospital for 23 days and then was compelled to leave without the operation being performed because of his inability to pay for it.

He futher charges that the acts set forth in the four counts of the complaint were committed negligently, willfully, wantonly and maliciously, with the result that he suffered unnecessary prolonged pain and mental anguish; that his compensatorjr injury was worsened; that he was prevented from obtaining employment sooner, and that he was not compensated under the workmen’s compensation award he ultimately received for any of these injuries. Plaintiff seeks compensatory and punitive damages.

It is important -to note that plaintiff contends that shortly after the accident plaintiff’s employer gave written authorization for treatment to a Dr. Alexander, and at the hearing before the Workmen’s Compensation Division on December 20, 1967 the employer admitted the employment and the happening of the accident — this despite its previous denials. Plaintiff was awarded compensation on December 20, 1967; the disc operation was performed on January 22, 1968, and he was authorized to return to work on June 1, 1968.

In dismissing the entire complaint the trial judge concluded that the Workmen’s Compensation Act was a bar to this suit, and plaintiff was limited to the relief afforded under the act. We affirm his dismissal of the first and second counts of the complaint, but reverse as to the third and fourth counts.

The first and second counts of the complaint charge defendant with failing to furnish prompt and adequate medical treatment. The remedy for such alleged wrongs lies within the provisions of the Workmen’s Compensation Act, N. J. S. A. 34:15—15 and 34:15-15.1, and a suit at common law cannot be maintained N. J. S. A. 34:15-7 and 34:15-8.

Turning to the third and fourth counts of the complaint, it is alleged that defendant insurance company voluntarily undertook to examine and treat an injured employee by its own doctor, and then in disregard of such doctor’s advice wrongfully, willfully and maliciously caused the employee to leave the hospital, resulting in the unnecessary suffering of prolonged pain and mental anguish. Such injuries and suffering are not compensable under the Workmen’s Compensation Act and, if proved, the insurance carrier should respond in damages.

We realize there is a conflict of authority throughout the country on whether this type of action will lie; many of the decisions are based on the wording of the workmen’s compensation statutes in force in the particular state. See 2 Larson’s Workmen’s Compensation Law 74 (Supp. 1969). Most of the cases in foreign jurisdictions which permit common law suits in tort against an insurance carrier deal with situations where an insurance carrier either voluntarily, or under the terms of its policy, inspects the employer’s premises and equipment and does so negligently. See Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N. E. 2d 769 (Ill. Sup. Ct. 1964); Smith v. American Employers Ins. Co., 102 N. H. 530, 163 A. 2d 564 (N. H. Sup. Ct. 1960); Fabricius v. Montgomery Elevator Co. [Ins. Co. of North America], 254 Iowa 1319, 121 N. W. 2d 361 (Iowa Sup. Ct. 1963); Mays v. Liberty Mutual Ins. Co., 323 F. 2d 174 (3 Cir. 1963).

In a case analogous to the instant one, Aetna Life Ins. Co. v. Watts, 148 Okl. 28, 296 P. 977 (Okl. Sup. Ct. 1931), the court permitted a suit in tort by an injured employee to lie against the insurance carrier for its negligence in removing plaintiff from one hospital and putting him in another hospital resulting in aggravating his injuries during the process of removal, this removal having been done against the advice of its own treating doctor.

In the case of Waldron v. Aetna Casualty & Ins. Co., 141 F. 2d 230 (3 Cir. 1944), plaintiff employee suffered a compensable accident. Defendant insurance carrier’s agent authorized and undertook to pay for skin grafting operations. After commencing the required operations, defendant ordered them to be abandoned. Plaintiff charged defendant with unjustifiably repudiating and abandoning treatment, to his injury and damage, and sued defendant in tort therefor. The court held that even though defendant may not have been legally bound to furnish the skin graft operations under Pennsylvania’s Workmen’s Compensation Law, having undertaken to do so it became a jury question as to whether it acted negligently.

There is nothing in the New Jersey Workmen’s Compensation Act which would bar this kind of common law action. In fact an analysis of Mager v. United Hospitals of Newark, 88 N. J. Super. 421 (App. Div. 1965), aff’d 46 N. J. 398 (1966), supports this view. In Mager Judge Goldmann thoroughly analyzed the New Jersey Workmen’s Compensation Act and concluded tliat a workmen’s compensation carrier, maintaining its own medical clinic for treating injured employees, is liable for the negligent treatment of such employees, and that the act does not give it immunity as the employer’s carrier. He classified the insurance carrier as a third person liable to an employee under N. J. S. A. 34:15—40 if its acts negligently caused harm to the employee which are alleged to have occurred in the course of an independent undertaking not under the insurance policy or the act.

Nor is this action barred by the exception contained in the second paragraph of N. J. S. A. 34:15-8. The first paragraph of that statute limits an employee or his personal representatives to the awards of compensation provided for under the act. It represents a surrender of his or their rights to any other method, form or amount of compensation. The second paragraph of the statute provides:

If an injury or deatli is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

This exception does nothing more than give fellow employees immunity for their negligent acts committed on each other in the course of their employment, unless intentionally committed. Bryan v. Jeffers, 103 N. J. Super. 522 (App. Div. 1968), certif. den. 53 N. J. 581 (1969).

We make no comment or decision concerning the claim for punitive damages or the claim for loss of consortium. These issues will await future developments.

Reversed and remanded in accordance with this opinion.

Sullivan, P. J. A. D.

(concurring). I agree that a final ruling as to the third and fourth counts was premature.

At oral argument counsel for plaintiff stated that the real basis of plaintiff’s suit was the contention that defendant undertook to provide medical treatment to plaintiff, had him admitted to the hospital in September 1967 for that purpose, and thereafter, against the medical advice of its own doctor, wrongfully refused needed treatment and ordered plaintiff out of the hospital.

According to plaintiff’s counsel, irrespective of any issue of workmen’s compensation liability, defendant, having undertaken to provide plaintiff with medical treatment, was obligated to exercise reasonable care to that end.

On the motion for dismissal defendant did not controvert plaintiff’s contentions, and the court should have denied the motion as to the third and fourth counts.

Whether plaintiff can establish these contentions by competent proof is another matter.