author: Handler, J. S. C.

text:
    DONALD ROTWEIN AND EDWARD BLAKE, t/a D. S. ROTWEIN, EDWARD BLAKE, ASSOCIATED ARCHITECTS, PLAINTIFFS, v. THE GENERAL ACCIDENT GROUP AND CONTINENTAL CASUALTY COMPANY, INSURANCE COMPANIES AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 31, 1968.

      Mr. William Bossmoore, for defendant Continental casualty Compaq (Messrs. Stavis, Bichardson, Koenigsberg & Bossmoore, attorneys).

      Mr. John J. Gaffey, for defendant General Accident Group (Messrs. Gaffey, Webb ■£ McDermott, attorneys).
   Handler, J. S. C.

This is an action for declaratory judgment brought by Donald Rotwein and Edward Blake, t/a D. S. Rotwein, Edward Blake, Associated Architects, against two insurance companies, The General Accident Group and Continental Casualty Company, each authorized to do business in the State of New Jersey.' By their complaint plaintiffs, who are professional architects licensed in the State of New Jersey, seek an adjudication that either or both of defendant insurance companies are obligated to defend an action brought against them in the United States District Court for the District of New Jersey charging negligent performance of architectural services and to pay any adverse judgment which may result from that action.

By their answers defendants do not deny most of the essential allegations of the complaint with respect to the issuance of insurance policies in favor of plaintiffs, the rendering of architectural services by plaintiffs, and the filing and pendency of the Federal District Court action alleging negligent acts, errors or omissions. Each alleges, however, that under its respective policy of insurance it is not obliged either to defend that action or to pay any judgment adverse to plaintiffs.

By motions and cross-motions for summary judgment all of the parties seek a judgment vindicating their respective contentions.

Í. THE GENERAL ACCIDENT GROUP

With respect to the controversy involving The General Accident Group (hereinafter referred to as “’General Accident”), the pleadings and affidavits disclose no genuine controversy as to any material fact. General Accident issued a policy of insurance known as an Architects Professional Liability Policy in favor of plaintiffs as its insured covering a period from April 15, 1961 through April 14, 1964. .In. July 1966, at which time plaintiffs no longer had an insurance policy with General Accident, plaintiffs were named as defendants in a complaint filed in the Federal District Court alleging negligence on their part in the performance of architectural services in April 1963. The alleged negligence related solely to the drawing and preparation of plans and specifications submitted to a general contractor for the construction of an industrial building in New York. After the submission of these plans and specifications plaintiffs had no further connection with that project; they performed no other architectural services and had no responsibility for any continuing supervision or inspection of the construction work or the completed job. Defects in the work materials came to the attention of the parties directly involved in the New York construction project as early as 1964, but plaintiffs had no knowledge of any defects and were not notified thereof at that time. The first notice of the defects was received by plaintiffs when they were served with a copy of the complaint charging them with negligence in July 1966. They immediately notified General Accident of this complaint and General Accident; disclaimed any responsibility to.'either defend that action or to pay any adverse judgment.

Paragraph IV under “Insuring Agreements”,of the General Accident policy provided: ■

“Policy Period, Territory. This policy applies only to negligent acts, errors or omissions from services rendered during the policy period and then only if such cause an accident during the policy period, and further provided claim, suit or other action arising therefrom is reported during the policy period and is commenced in the United States of America. * *

General Accident argues that under the clear terms of this provision it is not obligated to provide. insurance for plaintiffs. General Accident’s position is .that this provision of its policy posits three conditions of insurability which must be met within the policy period: (1) the occurrence of negligent acts, errors or omissions; (2) an accident caused by such negligent acts, errors or omissions, and (3) the reporting and commencement of a claim, suit or other action arising therefrom. While the allegedly negligent acts in the form of architectural services occurred, if at all, during the policy period, namely in 1963, no claim, suit or other action arising therefrom was reported or commenced during the policy period.

Plaintiff’s urge that a strict construction of the operative provision would ■ render the policy invalid. They contend that the language of paragraph IV of the “Insuring Agreements”, taken in conjunction with other provisions of the policy, reveals an ambiguity.or uncertainty as to whether a claim arising from negligence during the policy period must be made during the policy period. Plaintiffs ask that this ambiguity be' resolved in their favor, and more specifically that thej'' not be .bound by the condition in paragraph.IV that a. claim must be brought or reported within the policy period.

Plaintiffs emphasize that under paragraph 4 of the “Conditions” of the policy the limit of liability of the insurer is specifically defined without any reference to when a claim must be made, viz.:

“The limit of liability stated in the declarations is the limit of the Company's liability for all damages arising out of negligent acts, errors or omissions occurring during the policy period.”

Plaintiffs also stress that such a requirement is absent from paragraph 3 of the “Conditions” which provides:

“If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.”

Furthermore, it is pointed out that under the “Exclusions” of the policy there is no requirement that a claim arising out of negligent acts, errors or omissions be reported or brought within the policy period. Plaintiffs argue that these provisions generate uncertainty as to when a claim must be brought and that paragraph IV of the “Insuring Agreements,” read fairly in context, requires only that there be an “occurrence” of the negligent acts, errors or omissions within the policy period, without regard to when a claim might be reported or brought.

It is a cardinal principle of judicial construction of insurance contracts that all doubts arising from ambiguous language or terms of uncertain meaning or import will be resolved in favor of the insured. Allen v. Metropolitan Life Ins. Co., 44 N. J. 294. (1965); Parnell v. Rohrer Chevrolet Co., 95 N. J. Super. 471 (App. Div. 1967); Capece v. Allstate Ins. Co., 88 N. J. Super. 535 (Law Div. 1965). It is equally well eslablished that courts will not engage in creating ambiguity where none exists in order to apply such a rule of construction. The courts are bound to enforce a policy as written when unambiguous terms are used. Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N. J. 511 (1963); Kook v. American Sur. Co. of N. Y., 88 N. J. Super. 43 (App. Div. 1965); Cox v. Santoro, 94 N. J. Super. 319 (Law Div. 1967).

“The language [of a policy] should be revealing to the ordinary man.” Merchants Ind. Corp. v. Eggleston, 37 N. J. 114; 122 (1962). It follows as a cognate rule of construction that a party’s “reasonable expectations” will not be defeated by “hidden pitfalls,” Linden Motor Freight Co., Inc. v. Travelers Ins. Co., supra; Gerhardt v. Continental Ins. Cos., 48 N. J. 291 (1966), or by “technical encumbrances” which nullify substantially the protection purchased by the insured. Kievit v. Loyal Protect. Life Ins. Co., 34 N. J. 475 (1961); Hoboken Camera Ctr., Inc. v. Hartford Acc. & Ind. Co., 93 N. J. Super. 484 (App. Div. 1967).

In construing the policy here in question and applying its language, paragraph IY of the “Insuring Agreements” defines the ambit of coverage in clear and-unmistakable language. As defined therein an insured could reasonably expect to be-protected only as to negligent acts, errors or omissions in the performance of architectural services, where an accident arises therefrom, and a claim or suit is reported and instituted; and each of these incidents of coverage must eventuate within the period of the policy.

This clear definition of the ■ extent of coverage -is not, as claimed by plaintiffs, rendered uncertain or ambiguous by other provisions of the policy. Paragraph 4 of the “Conditions” refers not to the scope or area of coverage but rather to the insured’s “limit of liability,” as disclosed by the caption of the paragraph; it means1 simply that the limit of its liability is stated in the declarations of the policy (i. e., in a particular dollar amount) and is restricted to /liability for all damages arising out of negligent acts, etc. occurring during the policy period.” (Emphasis added.) With respect to paragraph 3 of the “Conditions,” the language therein deals not with the perimeters of coverage but with the-time within which.“notice.” of a claim;or suit must be brought to the -attention -of the insurer. Similarly, the failure to repeat in some fashion under the “Exclusions” of the policy that a claim arising out of negligent acts, errors or omissions be reported or brought within the policy period does not imply that this requirement, dearly postulated by paragraph JV of the ‘‘Insuring Agreements,” has been eliminated.

There would be no essential contractual purpose served in achieving either needed clarity or precision by reiterating in these clauses of the policy dealing with liability limits, time of notice and exclusions, those conditions of coverage clearly set forth in paragraph IV of the “Insuring Agreements” — namely, that the negligent acts, the accident or damages resulting therefrom, and any claims arising on account thereof must occur within the policy period. The absence of a repetition of the requirement that all the incidents of coverage occur within the policy period neither generates an ambiguity, nor changes the otherwise plain meaning of the operative paragraph delineating the protected risks.

Plaintiffs’ reliance upon Gerhardt v. Continental Ins. Cos., supra, to support their contention that its reasonable expectations were framed from a reading of clauses appearing-after the “Insuring Agreements” is misplaced. The court there held that the “reasonable expectations” of an insured predicated upon a fair understanding of the scope of coverage as set forth in prominent and plain language would not be defeated by a “hidden pitfall,” i. e., restrictions of coverage buried in other parts of the contract. Gerhardt has been recently explained as standing for the proposition that “an insurance carrier must be clear in its expression of coverage and must not mislead by implying coverage and then later in another part of the policy excluding it with obscure and vague language.” Cox v. Santoro, supra, 94 N. J. Super., at p. 323. Here the situation is converse. Plaintiffs claim they reasonably expected more extensive coverage, beyond the clear terms of paragraph TV of -the “Insuring Agreements,” by virtue of other provisions of the contract. These provisions, however, are not germane to the scope of coverage. In effect, plaintiffs seek the benefit of a “hidden windfall." They are not entitled to this greater coverage since realistically it cannot be said that through a sensible and fair reading of the contract their expectations were reasonably shaped by these inapposite clauses.

Plaintiffs also contend that the provisions of paragraph IV are unenforceable on grounds of public policy. They argue that public policy condemns the provisions of paragraph IV because of their manifest unfairness and because - they are inconsistent with the public interest in the freedom of an insured to contract with the insurance company óf his choice.

Insurance contracts are necessarily subject to the limitation that they not violate public policy. Jorgenson v. Metropolitan Life Ins. Co., 136 N. J. L. 148 (Sup. Ct. 1947); Kampf v. Franklin Life Ins. Co., 56 N. J. Super. 185 (Ch. Div. 1959); Smith v. Motor Club of America Ins. Co., 54 N. J. Super. 37 (Ch. Div. 1959). Public policy is a test directed toward that which favors or is injurious to the public at large rather than the individual. As stated in Jorgenson v. Metropolitan Life Ins. Co., supra:

“Public policy * * * underlies all judicial action. Stemming from our State and Federal Constitutions, it is also public policy to uphold the freedom of contract, but this court is reluctant to enforce the exercise of that freedom where it tends to result in injury to persons beyond the immediate parties.” (136 N. J. L. at p. 153)

Public policy has been traditionally invoked in the insurance context where the terms • of the policy might encourage practices clearly against some recognized conception of the public good. Insurance contracts have been declared unenforceable where they are patently offensive or inimical to the public welfare and have a clear capacity to support or encourage conduct which is deleterious, anti-social or unlawful. See generally, 7 Appleman, Insurance Law and Practice, §§ 4242, 4252, 4254 (1942); 29 Am. Jur., Insurance, §§ 229-34 (1960); 44 C. J. S. Insurance §§ 239-243 (1945). It must be emphasized that public policy will usually not be applied to invalidate a contract unless there is some definite basis therefore in law, legal precedent or recognized governmental policy affecting the general welfare. Allen v. Commercial Casualty Ins. Co., 131 N. J. L. 475 (E. & A. 1944).

The argument has been advanced that the General Accident policy, by force of the restrictions of Paragraph IV, violates the public policy favoring freedom of contract. Plaintiffs assert that the type of policy they purchased tied them to General Accident after the expiration of the policy in order to assure adequate protection as to risks occurring during the term of insurance. It would appear, however, that to secure continuing protection against any negligence which may have occurred during the policy period, plaintiffs at the end of the policy term could have either purchased a similar policy with General Accident to extend the period of coverage, or purchased a policy with retroactive coverage with another insurer. They were not locked into a contractual relationship with General Accident. Nothing interfered with their freedom to pursue either alternative. There is nothing to indicate that these options were not available to plaintiffs or that such choices were unreasonable or unduly restrictive of their ability to obtain adequate insurance protection. Moreover, to the extent that plaintiffs’ future course of action was influenced by the type of policy they purchased from General Accident, there is no suggestion that their selection of this species of professional liability insurance or their decision to insure with General Accident was anything but freely and intelligently made. In short, there is no demonstration that the type of policy issued to plaintiffs by General Accident has any inherent tendency to limit an insured’s freedom to contract.

Plaintiffs further contend that provisions of paragraph IV are unenforceable on grounds of unconscionability. A contract may be considered unenforceable where its terms are manifestly unfair or oppressive and are dictated by a dominant party. Kuzmiak v. Brookchester, 33 N. J. Super. 575 (App. Div. 1955). In applying this principle and in judging the fairness of a contract, the court will in addition to inspecting the terms, scrutinize “the relations of the parties and all the surrounding circumstances.” Hemhauser v. Hemhauser, 110 N. J. Eq. 77, 79 (Ch. Div. 1932). See Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 404 (1960). Plaintiffs’ burden in establishing unconscionability properly requires that they show some over-reaching or imposition resulting from a bargaining disparity between the parties, or such patent unfairness in the terms of the contract that no reasonable man not acting under compulsion or out of necessity would accept them.

Plaintiffs have failed to meet their burden with respect to the issue of unconscionability. The record is barren of any evidence of over-reaching, unfair bargaining or duress on the part of General Accident in the negotiation and execution of the policy. On the contrary, the record suggests that plaintiffs purchased their insurance through their own agent, who presumably possessed the requisite skill to make a reasoned decision as to the proper type of professional liability coverage. And the record does not indicate that the decision to accept this particular General Accident policy was made out of necessity. Rather, the record implies that several types of professional liability coverage were available. This is not a case of an insurer in a dominant bargaining position foisting oppressive policy terms upon another whose status or circumstances compels acceptance.

Plaintiffs state that the General Accident policy is manifestly unfair because it is wholly inconsistent with the kind of protection required by a professional architect, and that literal application of the terms of paragraph IV would therefore be unconscionable. They rely heavily upon the affidavits of Donald Rotwein and Seymour H. Goldberg, a licensed architect, the import of which is that to be effective an architect’s insurance protection must span a substantial period of time since his liability exposure is almost indeterminate and it is not unusual that liability claims will arise long after the actual performance of architectural services.

Plaintiffs assert that the oppressive nature of the policy may be inferred from the failure of the General Accident policy to incorporate the benefits of either the “occurrence” or “discovery” type policies while at the same time imposing the restrictions of both, citing Zarpas, Inc. v. Morrow, 215 F. Supp. 887 (D. C. N. J. 1963). The court in Zarpas distinguished between “discovery” and “occurrence” policies. As explained therein, “discovery” policies permit recovery for any errors or omissions (regardless of whether occurring during the policy period) as long as the claim is made during the policy period. “Occurrence” policies, on the other hand, permit recovery for errors or omissions (provided they occur during the policy period) regardless of when the claim is made. It is apparent that both types of policies have as their distinctive features an expanded coverage which protects against liability which may follow long after actual performance of professional services.

While the court in Zarpas approved the “discovery” policy in that case, it did not infcrentially disapprove the type of policy issued by General Accident. The court neither expressed any opinion with respect to policies that may be more restrictive than either the “discovery” or “occurrence” policy, nor suggested that such insurance policies, as discussed in that case, wore the only policies available or appropriate with respect to protection against professional liability.

Zarpas is not determinative on the question of whether a professional liability policy must include at least as much protection as afforded by either a “discovery” or an “occurrence” policy. More pointedly, it appears that the General Accident policy affords protection substantially comparable to a “discovery” policy. Thus the second portion of paragraph IV of the “Insuring Agreements” provides:

“This policy also applies to any negligent acts, errors or omissions from services rendered during tlie policy period of any prior policy issued to the Insured, if the Insured has maintained Architect’s Professional Liability Insurance continuously in force, provided no claim arising from the same accident has been made during the effective period of the said prior policy and before the inception date of this policy, * * * and provided further that such a claim would have been covered under the said prior policy had it continued in force and also under this policy had it been in effect at the time of the negligent acts, errors or omissions.”

Under these provisions of paragraph IY plaintiffs, at the time they became the insureds of General Accident, in fact obtained retroactive protection with respect to any negligent acts, errors or omissions attributable to professional services which may have preceded the issuance of the General Accident policy (provided they had other extant insurance), as long as the claim arising from such negligence was reported during the policy period. It has not been shown that such insurance protection is so inadequate or utterly inappropriate to the reasonable needs of a professional architect that it may be considered oppressive or unfair.

In sum, the provisions of the General Accident insurance policy are plain and unambiguous; they clearly require as a condition of coverage that a claim on account of negligent acts, errors or omissions be brought within the policy period. Plaintiffs have failed to demonstrate that the General Accident insurance policy has any capacity to inhibit or discourage freedom of contract contrary to established notions of public policy, or that the particular provisions of the policy are manifestly unfair, or that these terms were in fact imposed upon plaintiffs, who were disadvantaged through a subservient bargaining position. General Accident is entitled to summary judgment.

II. CONTINENTAL CASUALTY COMPANY

With respect to the claim involving Continental Casualty Company (hereinafter referred to as “Continental”), the pleadings and supporting affidavits have dispelled certain factual disputes. It appears that plaintiffs, after the expiration of the insurance policy issued to them by General Accident, became the insureds of Continental and, from April 15, 1964 to the present time, were covered under successive one-year-h'rm insurance policies issued by Continental. They promptly notified Continental of the Federal District Court suit commenced against them in July 1966, alleging plaintiffs’ negligent acts in connection with architectural services rendered in 1966, and Continental disclaimed responsibility to either defend that action or to pay any resulting adverse judgment.

Plaintiffs contend that coverage exists by virtue of the first Continental policy purchased for the year beginning April 15, 1964, which policy period was extended by each successive one-year policy. Plaintiffs assert that this initial policy covered errors and omissions occurring during the period of any prior policy covering architects’ errors and omissions. The provisions of the policy upon which plaintiffs rely appear on the face of the policy under paragraph IY of the “Insuring Agreements,” viz.:

“Policy Period, Territory
This policy applies only to errors, omissions or acts which occur within the United States of America, its territories or possessions, or Canada during the policy period and then only if claim is first made against the insured during the policy period.
This policy is extended to cover, any loss or losses under any prior policy which shall be discovered after the exploration of the time limited in said prior policy for the discovery of loss thereunder and provided such loss or losses are discovered during the policy period of this policy and before the expiration of the time limited in this policy for the discovery of loss hereunder: Provided that such loss or losses would have been recoverable under said prior policy had it continued in force: and provided further that the errors, omissions or acts causing such loss or losses be such as are covered under this policy.
Nothing herein contained shall be construed to render the Company liable under this policy for a larger amount on account of any loss or losses under said prior policy than would have been recoverable thereunder had it continued in force, or to increase the time for discovering or making claim for, loss under said prior policy beyond what would have been the time, had it continued in force.
The aggregate liability of the Company on account of any loss or losses shall in no event exceed the limit of liability under this policy whether sustained under said prior policy or under this policy or partly under each.”

Defendant argues that by a separate document (entitled an “Amendment”) attached to that policy, “prior poliey” was defined as referring to a prior Continental policy. This amendment reads:

“AMENDMENT OF THE ARCHITECTS’ AND/OR ENGINEERS’ PROFESSIONAL LIABILITY POLICY FORM A
The first two paragraphs of Insuring Agreement IV, ‘Policy Period, Territory,’ in the policy are replaced in their entirety by the following:
(a) During the Poliey Period
The insurance afforded by this poliey applies to errors, omissions or acts which occur within the United States of America, its territories or possessions, or Canada during this policy period if claim therefor is first made against the insured during this policy period.
(b) Prior to the Policy Period
The insurance afforded by this policy also applies to errors, omissions or acts which occur within the United States of America, its territories or possessions, or Canada prior to the effective date of this policy if claim therefor is first made against the insured during this policy period and if all of the following requirements are also present:
(1) the error, omission or act was also insured by this Company under the prior policy except that the period for making a claim against the insured under the prior policy has expired and
(2) no insured, at the effective date of the prior policy, had any knowledge of a pending claim against any insured, had any knowledge of any claim which might be made against any insured or had any knowledge of any circumstance which may reasonably be expected to create a claim against any insured.
‘Prior policy’ means the combined total of all architects’ and engineers’ professional liability policies issued to the insured by this company beginning with the first architects’ and engineers’ professional policy followed continuously by successive architects’ and engineers’ professional policies, the last of which expired on the effective date of this poliey.”

Summary judgment may be granted when the movant’s proofs show that there is “no genuine issue” as to any material fact. R. R. 4:58-3. Merely because the factual allegations of the movant are not directly controverted does not mean that there is no triable issue of fact. Inferences to be drawn from these facts mnst bo such that fair-minded men ought not to differ about thorn. Brenner and Co. v. Perl, 72 N. J. Super. 160 (App. Div. 1962). The movant’s burden was aptly described in United Advertising Corp. v. Borough of Metuchen, 35 N. J. 193 (1961):

“It is the movant’s burden to exclude any reasonable doubt as to the existence of a genuine issue of material fact. All inferences of doubt are drawn in favor of the opponent of the motion.” (at p. 196)

The movant’s burden is essentially a twofold one. He mnst show by Ms proofs that there are no genuine issues of material fact, and that there is no issue of credibility related to the proofs. It has been stated:

“In discharging this burden he must show that taking his moving papers as true they establish the lack of such a triable issue of fact; and that they are true. In reference to both of these matters, and particularly the latter dealing with credibility, the opposing party’s general right of cross-examination is often important.” 6 Moore’s Federal Practice § 56.15, at p. 2361

Whether Continental’s motion for summary judgment should be granted turns on whether there is a “genuine issue” concerning the attachment of the separate writing, entitled “Amendment,” to the first Continental policy. Continental’s principal proof lies in the affidavits of J. S. Duvall, IV, assistant vice-president of Victor O. Schinnerer & Company, Inc., an agent for Continental. Duvall’s affidavit of April 22, 1968 states that from April 15, 1964 to April 15, 1965 Continental insured plaintiffs under an errors and omissions policy which had the amendment attached to it. Duvall’s affidavit of June 27, 1968 states that at the time of the issuance of the first policy Schinnerer and Continental dealt with plaintiffs’ then insurance agent, C. J. Simons & Co. In connection with the issuance of the first policy Duvall states that two letters were written to C. J. Simons informing Simons that“policy period” referred to policies issued by Continental. These letters stated that “this proposal is for modifled Policy Eorm A which covers claims arising from professional errors or omissions committed during the policy period, if claim is first made during the policy period. When we refer to policy period we are referring to the continued periods of the first policy issued to the insured by Continental and all continuing renewals thereof.” It may be noted in this context that the amendment, stated by Duvall to have been attached to plaintiffs’ first Continental policy, is captioned “Amendment of Architects’ And/Or Engineers’ Professional Liability Policy Eorm A.” It has not been made clear whether the reference to a “modified Policy Eorm A” in the letters to Simons was intended to designate this amendment, although the explanation of the “modified Policy Eorm A” as set forth in the letters strongly suggests this.

The policy annexed to Duvall’s affidavit would appear to be a photostatic copy of an “Architects’ And/Or Engineers’ Professional Liability Policy” issued to Donald S. Rotwein and Edward Blake. The provisions of the restrictive amendment are not incorporated in the text or body of the contract, and this separate sheet of paper does not bear any signature or countersignature by the insurance company, the insureds or their agents. It merely states in typing “SEE COUNTERSIGNATURE ENDORSEMENT ATTACHED.” Plaintiffs apparently are unable to locate or produce their copy of this initial Continental policy. Rotwein states, however, that he did not see this amendment attached to the policy. He also denies that his insurance agent was C. J. Simons Agency. Additionally, Goldberg submitted an affidavit stating that his own Continental policy for the year 1964-1965 did not contain any restrictive amendment. Moreover, subsequent policies issued by Continental incorporated in the text of the policy the language appearing in the separate amendment.

These facts and the inferences which may be drawn from them create genuine doubts and problems of credibility with respect to whether or not the separate amendment was physically attached to the first insurance policy issued by Continental to plaintiffs. That all of the parties seek summary judgment by virtue of their respective motions and cross-motions does not obviate a plenary trial of disputed issues of fact, where such exist; nor do cross-motions constitute a waiver by the litigants to such a trial. Cross-motions for summary judgment, by the great weight of authority, do not justify the court in withdrawing the case from the jury. Asbury Park Press v. City of Asbury Park, 23 N. J. 50 (1956).

The posture of the evidence is such that there should be a full exploration of all material facts pertaining to the physical attachment of the amendment to the Continental policy issued to plaintiffs on April 15, 1964. Neither party is entitled to a summary judgment.


source: Caselaw Access Project

author: Leonard, J. A. D.

license: Public Domain

text:
    SINCLAIR REFINING COMPANY, PLAINTIFF-RESPONDENT, v. THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND RONALD ZWEIG, ETC., ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1968
    Decided November 7, 1968.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Lawrence Wolfberg argued the cause for appellant (Mr. Frank J. Cuccio, attorney).

      Mr. James A. Major argued the cause for respondent (Messrs. Major <& Major, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

In this breach of contract action defendant County of Bergen (county) appeals from a judgment entered against it by the court, without jury, in the sum of $9,339. The only issue here involved is that of liability, the parties having agreed upon the amount of damages.

The basic facts are not disputed. On January 10, 1967 the county, through its board of chosen freeholders (board), caused to be advertised a “Notice to Bidders” to submit sealed bids for, among other things, the furnishing and delivery of “High Octane 100 Plus Gasoline, Various County Department & Municipalities" (emphasis added). The notice advised that “Proposal Forms and Specifications” might be obtained from the county’s purchasing agent and that “no bid will be considered unless made upon the ‘Proposal Form’ supplied by the County.”

This “Proposal Form” required the bidder to submit a separate bid for the county’s gasoline requirements and eight other separate bids for the requirements of each of eight designated municipalities located in Bergen County. The bidder was requested to state a “Firm Price Per Gallon” and a “Lump Sum Price” for the county and for each of the eight municipalities. There was no indication on the form that the same “price per gallon” be submitted for the county and the municipalities.

Of importance are the following three provisions contained in the county’s “Proposal Form.”

“The County of Bergen is responsible only for its own requirements as outlined in the bid. In the case of the municipalil ies included in this bid, the successful bidder will enter into a separate contract. The County will not be responsible for any municipal obligations, either for payment or otherwise.”
“Deliveries cannot be made by the successful Bidder to any Municipality until said municipality enters into an agreement with the County by Ordinance permitting the said County to bid on its requirements.”
“If, in the opinion of any Municipality participating in this bid, the prices quoted are not acceptable, as to the entire bid or any portion thereof, said municipality has the right to reject same.”

On February 7, 1967 plaintiff and two other bidders submitted bids, all on the county’s “Proposal Form.” Plaintiff offered to supply the required gasoline for the county and for seven of the municipalities (it made no bid for the Borough of Northvale) for a total price of $92,153.85. Plaintiff offered to supply 466,950 gallons to the county for $0.1348 per gallon, a total lump sum bid of $62,944.86, and to supply the requirements of the respective municipalities at various, but higher, prices per gallon.

Each of the other two bidders offered to supply the needs of the county and each of the eight designated municipalities at a uniform price per gallon. One bid $0.1379 and the other $0.1597. The former’s lump sum bid to the county was $64,392.41 and the latter’s $74,571.92.

On March 3, 1967 the executive administrator of the board of the county wrote to plaintiff and advised it that

“[A]t a meeting of the Board * * * held March 1, 1967, contract was awarded to your firm [sic] for furnishing and delivering gasoline to the above locations (‘County of Bergen and Various Municipalities.’) for the year 1967” * * * “[Y]our contract will be prepared by our County Counsel from whom you will hear directly.”

However, it is to be noted that although this letter referred to both the county and the "various municipalities,” the resolution of the board awarded plaintiff a contract for only the county’s requirements ■ — ■ 466,950 gallons at $0.1348 per gallon, or a total of $62,944.86.

On March 28, 1967 the county counsel informed plaintiff by letter that he had advised the county’s executive administrator to rescind the March 1 resolution awarding plaintiff a contract for furnishing gasoline to the county. The basis for his action was the “conclusion that the specifications were so ambiguous as to have prevented the bidders from being on an equal basis and this ambiguity resulted in prejudice or probable prejudice not only to the bidders but also to the County and the municipalities on whose behalf the County acted as an agent on the receiving of bids.” It appears that this action resulted from complaints by the affected municipalities when they were deprived by the comity’s action of the benefit of unit prices on a par with those afforded the county.

Although the appropriate resolution is not set forth in the appendix, both sides agree that the county did subsequently rescind the March 1 resolution. In any event, the county readvertised for bids upon revised specifications and on April 19, 1967 a new resolution was adopted by the board “awarding the 1967 requirements contract to Mobil Oil Corporation.” The latter agreed to supply the needed gasoline to the county and the eight municipalities for the uniform price of $0.1357 per gallon, or alternatively to the county alone for $0.1346 per gallon. At this latter price the lump bid for the county alone was $62,851.15.

It should be noted that a similar invitation for bids for gasoline in 1966 resulted in bids on a uniform unit price basis for the county and the designated municipalities, by all bidders, including plaintiff, which was the successful bidder that year. The county contends that uniform unit prices for the county and the municipalities were intended by the invitations for both years, as the only purpose of cooperative bidding was to afford the municipalities the benefit of the lower unit prices available through the county’s larger requirements.

On April 24, 1967 plaintiff filed a complaint in lieu of prerogative writs which was thereafter amended to read merely as a complaint for damages for breach of contract. The matter was submitted to the trial court, without a jury, upon stipulated facts, affidavits and briefs. Following oral argument the court found that the county breached its contract with plaintiff and entered a judgment in the amount of $9,339. This sum was stipulated as plaintiff’s loss of profit of two cents per gallon on 466,950 gallons.

At oral argument before us counsel for both parties agreed that the county was authorized to advertise jointly for its own gasoline requirements and for those of the eight municipalities by reason of an existing statute. Although this statute was not cited in the brief of either party we were, upon our request, subsequently advised by both that it was N. J. S. A. 40:23-6.26. Immediately upon receipt of this citation we informed counsel that we questioned the applicability of the cited statute to the instant situation and we raised the question whether, if it were not applicable, the bidding procedures pursuant to which the contract was awarded to Sinclair were illegal and ultra, vires. We requested counsel to file supplemental briefs directed to these questions and upon the additional issue of the application of the doctrine of equitable estoppel against the county. These briefs have been received.

We first consider the applicability of N. J. S. A. 40:23-6.26. This statute permits the board of freeholders of any county having a population in excess of 500,000 to enter into a contract with any one or more municipalities located in such county to provide for the furnishing by the county to such municipality of any “service or facility” which the municipality may otherwise lawfully provide to its inhabitants or others. It is limited to the furnishing of facilities and services and is not applicable to the furnishing of materials and supplies such as gasoline. It is to be noted that N. J. S. A. 40:23-6.34, effective October 26, 1967 and therefore not here controlling, does authorize any county to enter into a contract with any one or more municipalities, located in that county, to provide for the purchasing “by the county” of “materials and supplies” for use by the municipality. It is unnecessary for us here to decide, however, whether the latter statute would permit the bidding procedure here utilized.

Moreover, N. J. S. A. 40:23-6.26 does not sanction the practice here employed by the county. It contemplates a contract between the county and the municipality and does not authorize any direct relationship between the municipality and the person or company from whom the county secures the “service or facility.” Thus, we conclude that N. J. S. A. 40:23-6.26 is not applicable to the instant situation and does not authorize either the bidding procedure here adopted by the county or its award of a contract resulting therefrom.

Counsel have been unable to cite, nor have we found, any other express statutory authority for the county’s action. Further, we hold that the power to so act does not arise by necessary or fair implication from, or as an incident to, the powers expressly conferred, or as essential to the declared objects and purposes of the county. Cf. Palisades Properties, Inc. v. Brunetti, 44 N. J. 117, 133 (1965).

We turn to the effect of this lack of express or implied authority upon the contract awarded by the county to plaintiff. It is axiomatic that municipal bodies in this State have no powers other than those delegated by the Legislature, and must perform their prescribed activities within the statutory ambit. Scatuorchio v. Jersey City Incinerator Authority, 14 N. J. 72, 85 (1953). Although a public body may make contracts, it can only do so within its express or implied authority. Midtown Properties, Inc. v. Madison Tp., 68 N. J. Super. 197, 208 (Law Div. 1961) affirmed 78 N. J. Super. 471 (App. Div. 1963). An act wholly beyond the jurisdiction of a municipal corporation is ultra vires in the primary sense and utterly void. Summer Cottagers’ Ass’n of Cape May v. City of Cape May, 19 N. J. 493, 504 (1955); Thornton v. Village of Ridgewood, 17 N. J. 499, 508 (1955); Bauer v. City of Newark, 7 N. J. 426, 434 (1951); City Affairs Committee of Jersey City v. Board of Com’rs of Jersey City, 134 N. J. L. 180, 184 (E. & A. 1946).

Under the circumstances here present we conclude that the contract between the county and plaintiff was the product of an act which was ultra vires in the primary sense and therefore absolutely void. This being so, no recovery may be had by plaintiff for damages for its alleged breach. Hudson City, etc., Co., v. Jersey City Incinerator Authority, 17 N. J. 297, 309 (1955). Nor can the equitable doctrine of estoppel be invoked against the county. Slurzberg v. City of Bayonne, 29 N. J. 106, 115 (1959).

Even if estoppel were available to plaintiff, relief could be granted thereunder only “to the extent of the benefit conferred upon and knowingly accepted by the municipality.” 405 Monroe Co. v. City of Asbury Park, 40 N. J. 457, 463 (1963). In the instant case no benefits were conferred upon or accepted by the county. Moreover, plaintiff was not led bjr its reliance upon the validity of said contract “to change his position for the worse.” See Highway Trailer Co. v. Donna Motor Lines, Inc., 46 N. J. 442, 449 (1966). Here plaintiff seeks only to recover its prospective loss of profits. It has parted with nothing of value.

In its supplemental brief plaintiff contends that even conceding that the county had no statutory authority to advertise and receive bids on behalf of the eight municipalities, it did have authority to advertise, receive and award bids for the county’s needs. It argues that the contract here involved, which only pertained to the county’s requirements, was therefore valid or, at the worst, the product of irregularity in the exercise of a power possessed by the county. We deem this point to be without merit. It ignores the fact that the bid submitted to the county by plaintiff and the other bidders was only one part of a larger bid to supply the gasoline requirements of the municipalities as well as those of the county. To assume that the bid to the county was the lowest bid that would have been submitted to the county if it had sought bids solely for its own requirements is mere conjecture. Plaintiff’s position is contrary to that public policy established in the interest of efficient and economical local administration of government — the avoidance of waste, extravagance and ill-considered spending. See Slurzberg v. City of Bayonne, supra, 29 N. J., at pp. 114—115.

Additionally it appears that because of uniform practical construction by all bidders of the county’s invitations in prior years, all of the bidders in 1967 except plaintiff assumed that they were required to submit the same unit price for the municipalities as for the county, with the possible if not probable result that their county bid price was higher than if they had submitted bids on the same basis as plaintiff. There was thus absent the requisite “basis of equality” of bidders that produces the competitive conditions calculated to serve the object of the bidding statute in procuring the lowest price possible for the municipality (here, the county). Hillside Tp., Union County v. Sternin, 25 N. J. 317, 322-323 (1957).

Based upon all of the above, the judgment entered in favor of plaintiff is reversed and this matter is remanded to the trial court for the entry of judgment in favor of the county.


author: Per Curiam.

text:
    FRANK H. FOSGATE, JR., APPELLANT, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1967
    Decided January 10, 1968.

      Before Judges Kilkenny, Carton and Eulop.

      Mr. Charles J. Farley, Jr., argued the cause for appellant.

      Mr. Barry D. Goldman, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersejr, attorney).
   Per Curiam.

Eosgate was involved in a fatal accident on June 6, 1966 while driving a truck at Communipaw Avenue, in Jersey City, where Eoutes 1 and 9 meet Eoute 440. He was not charged with any violation of the motor vehicle or traffic acts. A technical charge of manslaughter was subsequently dismissed. However, the Division of Motor Vehicles conducted an administrative hearing and suspended his driving privileges for one year, upon its finding that Eosgate had failed to use “due caution and circumspection” under the circumstances, and was thereby guilty of “careless driving,” in violation of N. J. S. A. 39:4-97. Eosgate appeals from the order of suspension. R. R. 4:88-8. We granted a stay pending disposition of his appeal.

There was sufficient evidence to support the finding of careless driving. Eosgate’s attorney conceded that Eosgate was partly at fault lor this unfortunate happening. There were mitigating circumstances brought about by storm conditions.

The complicating factor stems from the fact that Eosgate is now a member of the police force of Itoseland, a relatively small municipality. He has been graduated from the police academy and intends to be a career policeman. Itoseland’s police force is entirely motorized. Tt has no foot patrolmen. Enforcement of the suspension may necessitate Eosgate’s discharge and Itosoland’s loss of a needed policeman at a time when it is difficult to obtain police recruits.

The purposes of the license suspension and revocation provisions are both punitive and rehabilitative. The latter is hardly necessary in the case of an officer of the law, who is constantly reminded in the performance of his daily duties of the need of safety on the highways.

It seems to us that the public interest ought not to suffer by punitive action against Eosgate. He would be adequately punished by enforcing the suspension against his driving for personal business or pleasure, but without a prohibiting of his driving police vehicles in the performance of his duties as a policeman.

The period of suspension is not excessive in view of the fact that a fatality was involved. Cf. Talocci v. Strelecki, 93 N. J. Super. 567, 573 (App. Div. 1967).

The order of suspension is modified to the extent only that Eosgate may drive police vehicles during the period of suspension in the performance of his duties as a policeman.


text:
    ESSEX COUNTY WELFARE BOARD, A CORPORATE ENTITY OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MICHAEL HELLAMS, AN INFANT THROUGH HIS GUARDIAN, LOUISE HELLAMS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 28, 1968
    Decided November 8, 1968.

      Before Judges Sullivay, Foley and Lewis.

      Mr. Feli.r A. Martino aigued the cause for appellant (Mr. John A. Matthews, Jr., attorney).

      Mr. Eldridge, Hawkins argued the cause for respondent (Annamay T. Sheppard, of counsel).
   Per Curiam.

The trial court, in an opinion reported at 98 N. J. Super. 181 (Cty. Ct. 1967), held that the Essex County Welfare Board was not entitled to repayment of welfare funds advanced for the support of the infant defendant herein out of a trust fund bank account representing the net proceeds of the settlement of a personal injury claim of said infant.

We affirm, but solely on the ground that the Welfare Board did not obtain a written promise to repay, from the funds anticipated, the amount of assistance to be granted. N. J. S. A. 44:10-4; see Francis v. Harris, 100 N. J. Super. 313 (Law Div. 1968), affirmed 103 N. J. Super. 440 (App. Div. 1968). The provisions of N. J. S. A. 44:7-19 authorizing the Welfare Board to bring appropriate action to recover moneys due for assistance given any person, insofar as assistance given a dependent child is concerned, must be read with the provisions of N. J. S. A. 44:10-4, supra.

“All other income and resources of the dependent child” shall be taken into consideration by the Welfare Board in determining the child’s need for financial assistance. N. J. S. A. 44:10-3(c). However, repayment of assistance granted to a needy dependent ehdd, from funds received by the child, shall be had in accordance with N. J. S. A. 44:10-4.

Affirmed.


text:
    VERNON FRANCIS, a/k/a VERNON FRANCIS WITT, BY HIS GRANDPARENT AND NATURAL GUARDIAN, MARIE ELSIE FRANCIS AND MARIE ELSIE FRANCIS, INDIVIDUALLY, ROBERT B. TURK, LIMITED GUARDIAN OF THE PROPERTY OF THE INFANT, VERNON WITT, PLAINTIFF-APPELLANT, v. WILLIAM HARRIS AND JOSEPH SAMUEL WILLIAMS, DEFENDANTS, AND ESSEX COUNTY WELFARE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 28, 1968
    Decided November 8, 1968.
    Before Judges Sullivan, Polex and Lewis.

      Mr. Robert B. Turh argued the cause pro se for appellant (Messrs. Cohn & Turh, attorneys).

      Mr. Felix A. Martino argued the cause for respondent (Mr. John A. Matthews, Jr., attorney).
   Per Curiam.

We are in full agreement with Judge Ackerman’s opinion in this matter reported at 100 N. J. Super. 313 (Law Div. 1968), and affirm for the reasons stated therein.

Affirmed.


author: Sullivan, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MATTHEW LANISH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1968
    Decided November 19, 1968.

      Before Judges Sullivan, Eoley and Lewis.

      Mr. Victor Friedman argued the cause for appellant (Mr. Edward A. Penberthy, on the brief).

      Mr. Marlin J. Queenan, Burlington County Prosecutor, argued the cause for respondent (Mr. Myron U. Gottlieb, on the brief).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

Defendant appeals from a judgment of the County Court finding him guilty of a violation of N. J. S. A. 39:4-50 (a) (operating a motor vehicle while under the influence of intoxicating liquor).

On January 21, 1967, at about 10:45 p.m., while operating his motor vehicle in the City of Burlington, defendant ran into the rear of an automobile which was stopped at an intersection for a red light. A police officer who arrived at the scene observed that defendant appeared to be intoxicated. He took him to a nearby State Police barracks where defendant submitted to the taking of a Harger drunkometer test which showed that he had .15% by weight of alcohol in his blood. Defendant was thereupon issued a summons charging him with a violation of N. J. S. A. 39:4-50 (a) (operating a motor vehicle while under the influence of intoxicating liquor). Defendant was also issued a summons for careless driving which is not involved in this appeal.

Defendant was tried in the Burlington Municipal Court on the aforesaid charge. After hearing the proofs the municipal court judge found him guilty of a violation of N. J. S. A. 39:4-50(5) (operating a motor vehicle while his ability to operate was impaired). Defendant was fined $50 and costs, and his license revoked for a period of six months.

Defendant took an appeal to the County Court. Since no stenographic record had been made of the trial in the municipal court, a plenary trial de novo was had in the County Court, as provided by R. R. 3:10-10(a). At that trial defense counsel took the position that the municipal court, by finding defendant guilty of the lesser offense of operating his motor vehicle while his ability to do so was impaired, had necessarily acquitted him of the more serious charge of operating a motor vehicle while under the influence of intoxicating liquor. He, therefore argued that the only charge on which defendant could be tried at the plenary trial de novo was the one on which he had been found guilty by the municipal court. However, the County Court judge held that the determination by the municipal court in no way restricted the County Court from proceeding on the original charge.

After considering the proofs submitted on the plenary trial de novo, the county court judge, as heretofore noted, found defendant guilty of a violation of N. J. S. A. 39:4-50(a) (operating a motor vehicle while under the influence of intoxicating liquor). Defendant was fined $200 and costs, and his driving privileges were suspended for a period of two years.

We turn to the merits of the appeal.

A prosecution for drunken driving is in the nature of a gwasi-criminal proceeding and must be so conducted as to respect and safeguard the basic rights normally accorded one accused of a criminal offense. State v. Guerrido, 60 N. J. Super. 505, 510 (App. Div. 1960). So viewed, we conclude that defendant’s conviction by the County Court of a violation of N. J. S. A. 39:4-50 (a) cannot stand and must be modified. An appeal to the County Court from a judgment of conviction in the municipal court is taken under R. R. 3:10. While the rule designates the proceedings in the County Court as a trial de novo, “[I]t is plain under the eases and rules that the flavor of the de novo review in the County Court is appellate.” City of Passaic v. Passaic County, 54 N. J. Super. 254, 259 (App. Div. 1959). Indeed, R. R. 3:10-1 provides that the only method of “reviewing a judgment of conviction” (emphasis added) entered in an inferior court of limited criminal jurisdiction shall be by appeal under the rule.

The municipal court, by finding defendant guilty of operating his motor vehicle while his ability to do so was impaired, manifestly found him not guilty of the charge of violating N. J. S. A. 39:4-50 (a) (operating his motor vehicle while under the influence of intoxicating liquor). Having been acquitted of such charge, it was constitutionally impermissible for the County Court to try defendant again for the same offense. N. J. Const., Art. I, par. 11. Defendant cannot be put to the dilemma of accepting what he believes to be an erroneous conviction or, by appealing therefrom, risk retrial on a charge of which he has been acquitted. Cf. State v. Wolf, 46 N. J. 301 (1966).

Defendant also contends that the State did not establish a proper foundation for the admission into evidence of the results of the drunkometer test, and that his motion to dismiss, made at the end of the State’s case, should have been granted. This argument lacks merit. A proper foundation was established for the admission of the drunkometer reading. That evidence, together with the other proofs presented by the State, was sufficient to establish a prima facie case and adequately supports the County Court’s findings.

However, as heretofore noted, since defendant on the plenary trial de novo could not legally be convicted of a violation of N. J. S. A. 39:4-50(a), the matter must be remanded to the County Court to modify its judgment of conviction to a violation of N. J. S. A. 39:4-50(6), and to impose an appropriate sentence. So ordered.


text:
    SELMA RAPPAPORT, GENERAL ADMINISTRATRIX OF THE ESTATE OF ARTHUR RAPPAPORT, DECEASED, AND SELMA RAPPAPORT, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ARTHUR RAPPAPORT, DECEASED, PLAINTIFF-RESPONDENT, v. ROBERT NICHOLS, MARY NICHOLS, HUB BAR, INC., A NEW JERSEY CORPORATION, MURPHY’S TAVERN, INC., A NEW JERSEY CORPORATION, NATHAN SWEET AND SOLOMON LUSTIG, INDIVIDUALLY AND AS CO-PARTNERS TRADING AS NATE’S TAVERN, EL MOROCCO COCKTAIL BAR, INC., A NEW JERSEY CORPORATION, AND LEONARD BRITTON, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1968
    Decided November 21, 1968.

      Before Judges Coneord, Kilkenny and Leonard.
    ilir. Ronald B. Atlas argued the cause for appellant Robert Nichols.

      Mrs. .Janet W. Freeman argued the cause for respondent (Mr. Fred Freeman, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

Judge Barrett, on August .17, 1961, found that defendant’s conduct, in driving while he was intoxicated, was under the totality of the circumstances, “wilful and malicious as the terms are used in the Bankruptcy Act.” Consequently, the judge denied defendant’s motion to stay, pending his bankruptcy proceeding, the execution against his wages issued to satisfy a judgment in a negligence action. This finding was incorporated in an order dated August 24, 1961.

We agree with Judge Hayden’s determination made on March 8, 1968 upon a renewed application for a wage execution, and here appealed, that Judge Barrett’s decision was res adjudícala on the issue of dischargeability of the judgment in bankruptcy.

Defendant first contends that prior to a bankruptcy discharge a state court does not have jurisdiction to decide the issue of whether a debt allegedly arising from a willful and malicious act is dischargeable. He asserts that any such prior finding is therefore not res adjudicata in a state court until such issue is properly raised after discharge. Defendant’s position is that the nature of the relief sought before Judge Barrett was discretionary and the sole determination that be could properly have made was that “it appears” that the judgment was not dischargeable. It is asserted that lie lacked jurisdiction to make “a finding of fact bearing on the nature of the debtor’s dischargeability.”

However, defendant himself in 1961, in opposing plaintiff’s wage execution and in requesting a stay, asserted the dischargeability of the judgment entered against him as an absolute bar against the issuance of the wage execution. Defendant did not then take the position he now urges. Thus, dischargeability was the issue that was contested by the parties and submitted to the court for determination. And the court flatly decided it on the merits. The decision of the question was material to the court’s action of denial of the motion for a stay, being the only ground therefor. AYc therefore find an identity of issues in the 1961 and 1968 proceedings.

None of the cases cited by defendants holds that a state court with jurisdiction over a claim cannot, prior to discharge, adjudicate on the merits the dischargeability of that claim in the course of a hearing on a request for a stay. To the contrary, it would seem that such jurisdiction has been taken for granted. See Pettit v. Port Newark Nat’l Bank, 110 N. J. Eq. 324, 329 (Ch. 1932); Mass v. Kuhn, 130 App. Div. 68, 114 N. Y. S. 444 , 445 (App. Div. 1909); St. Louis, B. & M. Ry. Co. v. Brack, 102 S. W. 2d 261 (Tex. Ct. App. 1937); Hartsfield Co. v. Newlin, 49 Ga. App. 546, 176 S. E. 516 (Ga. Ct. App. 1934). We conclude that this contention is without merit.

Defendant further argues that the determination and order of Judge Barrett was not res adjudícala because it was not a “final” judgment reviewable on appeal. This point is frivolous. The determination terminated the litigation on the matter decided, being an adjudication of a litigated matter in the proceedings subsequent to judgment. The order on that decision was therefore a final appealable adjudication. Romano v. Maglio, 41 N. J. Super. 561, 568-570 (App. Div. 1956).

Judgment affirmed.


author: Lane, J. S. C.

text:
    HENRY O. LOPEZ, JOSEPH ZARCARO AND ANGELA ZARCARO, PLAINTIFFS, v. NEW JERSEY BELL TELEPHONE COMPANY, BODY CORPORATE OF THE STATE OF NEW JERSEY, AND ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 8, 1968.

      Mr. Robert I. Ansell for plaintiffs (Messrs. Anschelewitz, Barr, Ansell and Bonello, attorneys).

      Mr. Norman D. Weisburd for defendant Arthur J. Sills, Attorney General of the State of New Jersey (Mr. Arthur J. Bills, attorney).
   Lane, J. S. C.

The complaint in this action seeks an injunction to restrain the Attorney General from requesting the New Jersey Bell Telephone Company to discontinue telephone service to plaintiffs. The company has agreed to comply with any order of the Attorney General issued pursuant to the order of this court, and therefore the complaint has been dismissed as to it.

This matter initially came before the court on order to .show cause for a preliminary injunction. A preliminary injunction was granted which, upon appeal, was reversed by the Supreme Court. Lopez v. New Jersey Bell Telephone Co., 51 N. J. 362 (1968).

The basis of the reversal of the order for a preliminary injunction was that this court abused its discretion. The Supreme Court concluded its opinion:

“It is evident to us that, on the entire record before the trial court, the plaintiffs’ application should have been denied and that the grant of preliminary injunctive relief was beyond discretionary bounds. Cf. General Electric Co. v. Gem Vacuum Stores, 36 N. J. Super. 234, 236 (App. Div. 1955).” (at p. 374)

The reference to General Electric Co. v. Gem Vacuum Stores, 36 N. J. Super. 234 (App. Div. 1955), clearly shows that the Supreme Court was dealing with the exact issue that was before it, namely, the propriety of the issuance of a preliminary injunction.

The Supreme Court equated the discontinuance of telephone service to the seizure of property used in connection with bookmaking. It reasoned that since there was a valid search warrant, the authorities could either have seized the telephones or could have requested the discontinuance of the telephone service. It recognized that if there had been a physical seizure of the telephones, plaintiffs would have bee» entitled to a judicial review under R. R. 3:2A-6. Althougfc. the Supreme Court suggested that plaintiffs could have applied to the Law Division under R. R. 3:2A-6 fox the return of service, it did not disapprove of the procedure followed by them.

The opinion stated:

“In the ease at hand the enforcement authorities satisfied the suggested safeguards in Sokol. [Sokol v. Public Utilities Commission, 65 Cal. 2d 247, 53 Cal. Rptr. 673, 418 P. 2d 265 (1966).] They songhft and obtained search warrants on presentations of probable «rase, The warrants authorized them to seize all property at. the plaintiffs’ premises used in connection with bookmaking and lottery. If property was seized illegally, the plaintiffs had a simple and effective mode of obtaining its return pursuant, to our rules relating t® search warrants. R. R. 3:2A—1 et seq. Fnder the statutes, the authorities could have physically seized the telephones along with other property seized by them. See N. J. S. 2A:152-6, N. J. S. A. They chose the alternative of having the service discontinued, apparently in order to avoid doing unnecessary harm to the Telephone Company’s equipment.
If the telephones had been physically seized, the plaintiffs presumably would have sought review of that action by motion in the Law Division pursuant to the cited rules. R. R. 3:2A-6. We incline to the belief that, when the service was discontinued following the seizures at their premises, they could have sought similar review in the Law Division. Instead they sought and. obtained review and relief in the Chancery Division. Be that as it may, they suffered no legal prejudice by virtue of the fact that the authorities followed the course of discontinuance rather than physical seizure, or the fact that review was sought in the Chancery Division rather than the Law Division.” (at pp. 371-372)

Although the opinion says that plaintiffs received a judicial review by the hearing on the return day of the order to show cause, plaintiffs in fact did -not receive a judicial review similar to that under R. R. 3:2A-6. On the return of the order to show cause the matter was heard on affidavits without any opportunity for cross-examination. See State v. Sherry, 46 N. J. 172, 175 (1965). R. R. 3:2A-6 provides in part:

“If material facts are disputed, testimony thereon shall be taken in open court.”

Here the pleadings raise issues of fact. Plaintiffs had no opportunity to have a judicial review of the action of the Attorney General until the final hearing. The opinion of the Supreme Court did not adjudicate the matter in issue but only dealt with the propriety of granting preliminary relief upon the affidavits that were before the court.

After the remand the matter came on for pretrial conference, at which time the issues were set forth in paragraph 7 of the pretrial order as follows:

‘‘(1) Did the Supreme Court adjudicate the matter at issue ?

(2) Does the complaint set forth a cause of action by which relief can be granted?

(3) Were the plaintiffs making illegal use of telephone service prior to discontinuance of service?

(4) Was there probable cause to believe that plaintiffs -were making such illegal use of service ?

(5) Power of Attorney General to accomplish severance of telephone service.

(6) Whether plaintiffs were accorded due process of law by ilie procedure employed by the Attorney General.”

The pretrial order, dated July 31, 1968, directed that the parties submit lo the court copies of their appellate briefs. Although this provision was called to the attention of the Attorney General by letter dated October 10, 1968, no copies of any of the briefs of the Attorney General were submitted io the court.

At the final hearing on October 24, 1968 plaintiffs introduced into evidence the following stipulation contained in paragraph 2 of the pretrial order:

“Parties stipulate subscription by plaintiffs for telephone service of New Jersey Bell Telephone Company; severance of said service by New Jersey Bell Telephone Company on October 21, 1966 pursuant to order of the Attorney General of the State of New Jersey by letter of October 4, 1966.”

The .Attorney General rested without introducing any evidence. The affidavits that were before the court on the return of the order to show cause for a preliminary injunction cannot be considered. They were not offered into evidence. If they had been, an objection to their admission would probably have been sustained. McArdle Real Estate Co., Inc. v. McGowan, 12 N. J. Misc. 500, 172 A. 786 (Sup. Ct. 1934). See also 1 Wigmore, Evidence (3d Ed. 1940), § 4. There is, therefore, nothing before the court except the discontinuance of the telephone service to plaintiffs as a result of a letter from the Attorney General.

It is the general obligation of the telephone company to serve the public without arbitrary discrimination. Paterson Publishing Co. v. New Jersey Bell Telephone Co., 21 N. J. 460, 467 (1956). Tbe only basis for the discontinuance of service now before the court was a request by the Attorney General. The burden upon him in these proceedings is to justify such request. Telephone News System, Inc. v. Illinois Bell Telephone Co., 220 F. Supp. 621, 628 (N. D. Ill. 1963), affirmed 376 U. S. 782, 84 S. Ct. 1134, 12 L. Ed. 2d 83 (1964); Kelly v. Illinois Bell Telephone Co., 210 F. Supp. 456, 464 (N. D. Ill. 1962), affirmed 325 F. 2d 148 (7 Cir. 1963); Giordullo v. Cincinnati & Suburban Bell Telephone Co., 71 N. E. 2d 858, 34 Ohio O. 251 (C. P. 1946); Nadel v. New York Telephone Co., 9 Misc. 2d 514, 170 N. Y. S. 2d 95 (Sup. Ct. 1957); Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 S. 2d 254 (Sup. Ct. 1955). See also Ben Ali v. Towe, 30 N. J. Super. 19, 22 (App. Div. 1954). Although the Attorney GeneraPs burden could have been met by a mere preponderance of the evidence, he has introduced nothing justifying the request to the Telephone Company. It was, therefore, upon the evidence before the court an arbitrary act which this court will order be withdrawn. O’Brien v. Scoll, 20 N. J. Super. 132 (Ch. Div. 1952); Higgins v. Krogman, 140 N. J. Eq. 518 (Ch. 1947), affirmed 142 N. J. Eq. 691 (E. & A. 1948).

Accordingty, there will be a judgment directing the Attorney General to withdraw his request to the New Jersey Bell Telephone Company for discontinuance of telephone service to plaintiffs and enjoining him from requesting the company to discontinue such telephone service based upon any action that may have occurred prior to the restitution of the telephone service.


text:
    FREDERICK APPLEGATE, PLAINTIFF-APPELLANT, v. JANET WOJACZYK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1968
    Decided November 13, 1968.
    Before Judges Goldmans, Kolovsky and Cabton.

      Mr. Frederick Applegate, appellant, argued the cause pro se.

      Mr. Robert O. Rafano argued the cause for respondent.
   Per Curiam.

Plaintiff sued for the balance of rent due under a one-year lease. The defense was constructive eviction. Judgment went in defendant’s favor; the trial judge held that the case was a close one, plaintiff had the burden of proof, and he had not sustained it.

Plaintiff’s motion for a new trial was denied. His further motion to amend the statement in lieu of record settled by the trial judge (R. R. 1:6-3) was also denied.

The trial judge misplaced the burden of proof. Where constructive eviction is raised as a defense to an action for rent, the burden is upon defendant to prove such eviction. Alexandria Realty Co. v. Whitman, 8 N. J. Misc. 21, 148 A. 12 (Sup. Ct. 1929); cf. Gunther v. Oliver, 97 N. J. L. 376 (Sup. Ct. 1922). The matter must therefore be remanded for a reevaluation of the proofs in the light of that rule.

Reversed and remanded for new findings, to be filed within three weeks. We retain jurisdiction.


text:
    SALVATORE PIRO, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1968
    Decided February 2, 1968.

      Before Judges Kilkenny, Caeton and Rosen.

      Mr. James P. Beggans argued the cause for appellant (Messrs. Beggans & Keale, attorneys; Mr. Geoffrey Gaulkin, of counsel).

      Mr. Arthur N. D’Italia argued the cause for respondent (Messrs. Warren, Chasan, Leyner & Holland, attorneys).
   Per Curiam.

Defendant Public Service Electric and Gas Company appeals from a judgment after a jury verdict in favor of plaintiff Piro for the recovery of damages for personal injuries. Plaintiff was injured when he was struck by a piece of wood thrown due to a sawing operation conducted by plaintiff’s employer, United Engineers and Constructors, Inc., at premises owned by Public Service.

Plaintiff alleged that this defendant was negligent in failing to provide a saw equipped with proper mechanical safety devices and failing to provide a safe place in which to work. Charges of breach of warranty against Public Service and DeWalt, Inc., the manufacturer of the electric saw, and an additional charge of negligence against DeWalt were dismissed at the conclusion of plaintiff’s cases and the trial proceeded against Public Service on the single issue of negligence.

There is no dispute as to the fact of the accident, nor any essential dispute as to the manner in which it occurred. The sole issue relates to the legal responsibility of Public Service for the injuries sustained by plaintiff.

On March SI, 1963, plaintiff, while an employee of United, was struck on the left arm by a piece of wood thrown or ejected by an electric saw operated by plaintiff’s co-employee. Public Service had engaged plaintiff’s employer, United, under a written contract, “to act as (defendant’s) construction department in the construction of an electric generating plant.” Public Service conceded that it had supplied both the saw and the premises for the use of United in performing the construction contract.

The structure in which the accident occurred was a converted ferryboat which had been brought to the job site for the use of United in constructing the generating plant. The interior of this structure was divided into a number of different shops, one of which was a carpentry shop, equipped with a bench and an electric saw known as a “DeWalt 7-horse-power saw.” The saw, which had a 16-inch blade, was described by Erbe, the man who operated it, as a “big saw, out of the ordinary for a mill.” He said it had a metal table covered with wood. The whole table with the saw included was 40 to 50 feet in length.

On -the day in question, Erbe, working for United, was ripping a 3-inch strip from a plywood board some 8 feet long and 2 feet wide and y inches thick. Working with him wás an apprentice whose function was to catch the 3-inch strips as they came through the saw. The apprentice was supposed to jab the.strips with a block of wood. .’While doing so, the apprentice' said' the teeth. on the blade .grabbed the wood and threw it back toward plaintiff.

At the' time the accident happened, it was not disputed that the saw did not have on it an anti-kickback device. This device was described as resembling a “ñfth hand,” which drops down on the wood being cut and, by the application of pressure, prevents it from being thrown back by the action of the saw blade. Such a device is required to be provided according to the regulations of the New Jersey Bureau of Engineering and Safety on all hand-set circular saws and on radial saws (such as the saw in question) when • used for ripping. Public Service had purchased this device along with the saw in 1956 but the anti-kickback device was not on the saw on the day of the accident. Plaintiff’s proof established that it had not been removed by the operator of the saw since the time he began his employment in December of 1962.

Defendant did hot. dispute that there'was no “spreader” on the saw as required by the regulation of the Department of Labor and Industry. The.spreader is a device “used to prevent the wood from-coming back on the saw.” .

Nor was there any dispute that the hurling of the wood which ■ injured plaintiff ' resulted from a “kickback.” Testimony presented by experts on behalf of plaintiff was to the effect that the presence of the anti-kickback device would have prevented, the accident from occurring.

The converted ferryboat, owned and supplied bjr the defendant Public Service, had been in its possession for some years and had been used in other projects, including the construction of a generating station at Sewaren. Public Service had moved the ferryboat from the Sewaren project to its premises at Jersey City where the new generating station was to be erected and had filled in earth around the ferryboat structure, burying it in the ground.

Plaintiff aiso charges that these premises where the accident occurred were unsafe in that there was no barricade around the DeWalt saw" to protect persons in the vicinity from Hying pieces of wood. Plaintiff’s proofs established that ripping saws were required by the Bureau of Engineering and Safety to be located so that no employee worked in line with the saw where he may be hit by material in case of a kickback. The regulation also provided that “if it is necessary to locate a machine in such a position, a heavy metal or plank barricade should be erected to protect the workmen.” Public Service conceded that no such barrier existed at the time of the accident and there was testimony from plaintiff’s experts that safe and proper use of the saw in question would require that such a protective barrier be constructed.

On this appeal defendant’s principal contention is that plaintiff’s proof failed to establish any basis for imposing upon it liability for plaintiff’s injuries.

As to the condition of the saw itself, there was proof that the anti-kiekback device was not on the saw on the date of the accident and had not been removed by the operator of the saw since he began his employment at the premises in December of 1962. There was proof also that the device known as a “spreader” was not purchased as a component of the saw it supplied to plaintiff’s employer in 1956 and that it was not attached to the saw on the date of the accident. Defendant points to the fact that the spreader and the anti-kickback device were removable, although intended to be in place at all times, and that in the operation of the saw it was necessary to make frequent adjustments. Since these devices are not used for cross-cutting and must be adjusted to the thickness of the material being ripped, defendant argues that the evidence is susceptible of the inference that the operator may have removed the devices altogether. However, the existence of such a possibility does not serve to relieve this defendant of responsibility.

Whether or not defendant was responsible for the absence of these safety attachments at the time of the accident, the evidence certainly justified the jury in concluding that the place where plaintiff was employed was not equipped with adequate safeguards to protect him from injury. It was conceded that the metal or plank barricade around the saw was not provided as required by the Bureau of Engineering and Safety. The presence of a barricade would not prevent the kickback, but would prevent injury to the workmen if a kickback occurred. The requirement of a barricade was designed to protect the workmen from the occurrence of kickback whether they resulted from the operator’s practice of removing the devices or from some other cause. There was affirmative testimony in the record that the injury would not have occurred had such barricade existed at the end of the saw bench.

Accordingly, there was ample evidence from which the jury could find that defendant’s premises were unsafe. Defendant argues nevertheless that it cannot be held responsible. Defendant’s brief states its contention as follows:

“This defendant’s position in this court is simply this: that even if the conditions complained of were, in fact, unsafe and evidenced negligence, nevertheless, the proofs here do not justify under applicable law, the allocation of responsibility to Public Service for those conditions or for the resultant injuries which plaintiff sustained. * * *"

We view this contention as untenable.

Defendant does not appear to question the sufficiency of the facts presented to the jury to warrant its conclusion that either the saw itself or the workshop, or both,. were inadequately safeguarded. In view of the testimony presented, such an attack could hardly be successfully made. Rather, defendant maintains that despite the unsafe conditions in its premises and the unsafe instrument it supplied, plaintiff’s failure to prove that defendant exercised control over the operations of United precludes recovery.

Defendant’s concept that a. showing of control over United’s operations is prerequisite to recovery is erroneous. This is not a case in which plaintiff seeks to hold defendant responsible for injuries caused by the negligence of an independent contractor in the performance of its operations, but for defendant’s own failure to fulfill the duty cast on it as a landowner to provide a safe place of employment for the contractor’s employees.

That defendant had a legal duty to provide a reasonably safe place for plaintiff to perform his work as a business invitee cannot now be questioned. A landowner, "who by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation.” Murphy v. Core Joint Concrete Pipe Co., 110 N. J. L. 83, 86 (E. & A. 1932). See also Gudnestad v. Seaboard Coal Dock Co., 15 N. J. 210, 219 (1954). As the employee of an independent contractor, plaintiff was an invitee to whom defendant owed such a duty. See Zentz v. Toop, 92 N. J. Super. 105, 111 (App. Div. 1966); Bergquist v. Penterman, 46 N. J. Super. 74, 83 (App. Div. 1957).

The duty of a landowner to such an invitee is nondelegable. Defendant cannot escape its responsibility to provide a safe place to work by attempting to transfer it to another. See Hussey v. Long Dock R. Co., 100 N. J. L. 380, 384 (E. & A. 1924). The possibility that another may also have been negligent does not relieve it of its legal duty.

Contrary to defendant’s contention, control over or supervisory authority of the actions of the independent contractor is obviously not relevant in such cases because it is the negligence of the landowner himself that is the basis for imposing liability.'

.Defendant misconceives the gravamen of plaintiff's• canse of action. The complaint alleges, inter alia, that defendant was negligent in failing to provide plaintiff with a safe place to work. The pretrial order repeats this charge. The case was tried on this basis.

The trial judge’s instructions to the jury and counsel’s argument on motions made at the conclusion of defendant’s case make it clear that plaintiff was not asserting liability on the basis of the doctrine of respondeat superior. On the contrary, as stated by the trial judge and agreed by plaintiff’s attorney, the theory of plaintiff’s case was defendant’s “failure to provide a reasonably safe place for the plaintiff to perform his work as a business invitee of Public Service.”

Because of defendant’s misconception, many of the authorities it relies upon are inapposite. In Marion v. Public Sevice Elec. & Gas Co., 72 N. J. Super. 146 (App. Div. 1962), plaintiff brought suit against Public Service as the employer of several independent contractors for injuries sustained as the result of the contractor’s negligence. Since the theory of Public Service’s liability in that case was predicated upon the doctrine of respondeat superior, the court embarked upon an analysis of the relationship between Public Service and its independent contractors. It was found that absent Public Service’s control over the work of its independent contractors, there could be no liability for the negligence of the contractor. See 72 N. J. Super., at pp. 153-55.

Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N. J. 425 (1959), Meny v. Carlson, 6 N. J. 82 (1950), and Wolczak v. National Electric Products Corp., 66 N. J. Super. 64 (App. Div. 1961), also relied upon by defendant to establish the necessity for showing defendant’s control of its independent contractor’s work, are equally inapposite. All involved attempts to impose vicarious liability for the negligence of an independent contractor.

Nor was there error committed by the trial court in refusing to instruct the jury that it was necessary for the plaintiff to prove that Public Service exercised control of the premises where the accident happened. Since control was not properly in issue in the setting of this case, except insofar as it related to defendant’s admitted ownership of the premises, it follows that the trial judge’s refusal to charge that element as requested by defendant was proper.

There is likewise no merit to defendant’s contention that the trial judge failed to give sufficient instructions to enable the jury to reach an intelligent verdict. The case was properly submitted to the jury on the issue of defendant’s negligence. The trial judge’s charge contained all the essential instructions, including notice, foreseeability, proximate cause, reasonable care and the duty of providing a safe place to work. Here again, defendant’s claim that the instructions were inadequate seems to be predicated upon its misconception that the charge of negligence was based upon its control of the premises rather than its failure to provide a safe place for plaintiff to work.

Affirmed.


text:
    JOSEPH SAIA, PLAINTIFF-APPELLANT, v. GEORGE BELLIZIO, d/b/a BELLIZIO MACHINE COMPANY, AND CAESAR BELLIZIO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1968
    Decided February 27, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. John V. Burns argued the cause for appellant.

      Mr. George J. Benson argued the cause for respondents (Messrs. Schenck, Price, Smith & King, attorneys).
   Per Curiam.

Plaintiff appeals from a judgment for defendants entered upon a jury verdict of no cause for action.

The action was instituted to recover damages for injuries allegedly sustained by plaintiff as the result of the negligent operation of defendants’ bulldozer. The bulldozer was engaged in clearing trees from a building plot. One of the trees struck plaintiff, a laborer employed by a contractor, Schibilia, while plaintiff and his employer were marking the building area with stakes.

Contributory negligence was pleaded as a defense. Although “the purpose of the pretrial is to reveal to each party wliat he must prepare to meet at the trial itself,” Maladowitz v. Coley, 47 N. J. 55, 57 (1966), here defendants were permitted to allege that defense in the pretrial order, together with the statement that they “can assert no facts in support of the defense” and that they intend “to rely upon such evidence as may be adduced at the time of the trial during the examination and cross-examination of witnesses.”

Defendants’ opening statement to the jury did not mention the defense of contributory negligence and limited itself to a denial of any causal relationship between the blow on the head which plaintiff received in the accident and a cataract which' plaintiff claimed he had sustained as a result thereof.

Plaintiffs attorney then moved

“t.o strike the issue of contributors' negligence from the case, because I hare not, by interrogatories nor in any manner, been appraised [sic] of any contributory negligence that I have to iiieet, including the opening that has just been made.”

The trial court denied the motion and, at the close of the case, over plaintiff’s objection that there was no evidence of contributory negligence, again refused to strike the defense. The court ruled that evidence to support the defense was to be found in the testimony of defendant George Bellizio, the last witness called by plaintiff.

Plaintiff argues that the trial court committed prejudicial error in denying the motion to strike the defense of contributory negligence. We agree.

As this court said in Caparella v. Bennett, 85 N. J. Super. 567, 571 (App. Div. 1964),

“Our pz-esent procedures for discovery and preti-ial are designed to eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action or defense is based. The seai’ch for truth in aid of justice is paz-amount, and concealment and surprise will not he tolerated. In Lang v. Morgan’s Home Equipment Corp., 6 N. J. 333, 338 (1951), the late Chief Justice Vanderbilt emphasized the importance of full diselosui’e of all relevant facts in advance of trial by saying:
<* * * Our rules for discovery * * * are designed to insure that the outcome of litigation in this State shall depend on its merits in the light of all of the available facts, rather than on the craftiness of the parties or the guile of their counsel.’ ”

Here the issue of contributory negligence was permitted to go to the jury on the basis of a belated testimonial assertion by defendant George Bellizio of alleged facts which he had never disclosed before, testimony which defendants’ counsel interprets as a contention

“that plaintiff Saia had removed himself from the area being cleared by Bellizio (after having been instructed to move out of the area about to be cleared by the bulldozer) and that plaintiff, unbeknown to defendant liad .subsequently returned to the area being cleared, placing himself in a position near to the bulldozer and hidden from defendant’s view by underbrush.”

That contention came as a surprise not only to plaintiff but also to defendants’ counsel who tells us

“that he had been unaware of such factual contention until BeUizio actually so testified, despite two conferences in his office with BeUizio preparatory to trial.”

We express no opinion as to whether Bellizio’s testimony warrants the interpretation placed upon it by his counsel and whether in fact it would support a jury finding that plaintiff was eontributorily negligent. If it does, then permitting such last minute assertion by the defendant of critical facts to constitute a basis for a finding of contributory negligence was prejudicially unfair to plaintiff and underscores the error in denying the prior motion to strike the defense. It matters not that defendant was called as a witness by plaintiff rather than by his own attorney. Nor is it material that defendants’ counsel had theretofore been unaware of the facts testified to by defendant. Such concealment and surprise, whether by an attorney or by a party himself, are prohibited.

The judgment must therefore be reversed and a new trial granted. Plaintiff should be afforded an opportunity, prior to the new pretrial conference, to undertake further discovery with respect to the contributory negligence defense.

.Finally, we note, since the following issues argued by plaintiff will undoubtedly arise again at the new trial, that we are satisfied that the trial court properly ruled (1) that the doctrine of res ipsa loquitur is inapplicable to this case, and (2) that the testimony given by the now deceased witness Schibilia in the prior workmen’s compensation proceeding was admissible into evidence in this case.

The judgment is reversed and the cause remanded for a new trial.


author: Lewis, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM F. LAYTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1968
    Decided November 21, 1968.
    Before Judges Sullivan, Eoley and Lewis.

      Mr. Ernest 8. Glickman argued the cause for appellant.

      Mr. Gerald Patrick Higham, Assistant County Prosecutor, argued the cause for respondent (Mr. Vincent Panaro, Mercer County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendant was indicted and tried for possession of a motor vehicle on which the serial numbers had been altered, in violation of N. J. S. 2A:127-3, and for receiving a stolen automobile, in violation of N. J. S. 2A:139—3.

At the close of the State’s case defendant moved for judgmen of acquittal as to both indictments on the grounds that the State had presented no evidence that he had knowledge that the serial numbers had been altered or that the vehicle had been stolen. The motion was granted as to the serial numbers offense but it was denied with respect to the indictment for receiving stolen property. The jury returned a verdict of guilty on the latter charge, and the trial judge sentenced defendant to a term of 18 months in the Mercer County Workhouse. He appeals.

The primary contention before this court, raised here for the first time, is that defendant should not have been indicted and tried under N. J. S. 2A: 139—1, a general statute dealing with receiving stolen property, since the alleged crime was receiving a stolen automobile. He maintains that an indictment and trial for that offense should be under the provisions of N. J. S. 2A :139-3, a statutory proscription which relates specifically to purchasing or receiving stolen motor vehicles. It is urged that had the Legislature intended N. J. S. 2A :139-1 to apply to receiving stolen motor vehicles there would be no need for N. J. S. 2A :139-3. We disagree.

The respective statutes deal with separate and distinct crimes and the defendant could have been indicted under either. The nature and character of the proofs to sustain conviction are not the same, and the penalty under N. J. S. 2A :139—1 is substantially less than that imposed under N. J. S. 2A :139—3. It is fair and reasonable to assume that the Legislature intended to provide for a contingency that the State’s proofs might not be sufficient to convict under N. J. S. 2A :139-3 but would be adequate to support a conviction under N. J. S. 2A :139—1.

This court has heretofore affirmed a conviction where the receiver or possessor of a stolen vehicle was prosecuted under N. J. S. 2A :139—1. See State v. Bozeyowski, 77 N. J. Super. 49 (App. Div. 1962), certification denied January 15, 1963 (unreported), certiorari denied 374 U. S. 851, 83 S. Ct. 1916, 10 L. Ed. 2d 1071 (1963); in that case, however, the precise issue argued here was apparently not raised. Note also, State v. Laster, 69 N. J. Super. 504 (App. Div. 1961).

The supervening arguments, that the cumulative effect of alleged prejudicial remarks by witnesses for the State and by the prosecutor in his summation and alleged improper evidence submitted to the jury unduly prejudiced defendant’s case, have been considered in light of the totality of the record. We are satisfied that the challenged irregularities, separately or collectively, do not constitute reversible error and that the defendant had a fair trial.

Judgment affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. GEORGE RAYMOND PHILLIPS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division.
    Argued November 18, 1968
    Decided November 18, 1968.

      Before Judges Goldmann, Kolovsicy and Carton.

      Mr. William L. Boyan, Assistant Prosecutor, argued the cause for appellant {Mr. Vincent B. Panaro, Mercer County Prosecutor, attorney).

      Mr. Harry B. Hill, Jr. argued the cause for respondent.
   Per Curiam.

The State moved for leave to appeal from the trial judge’s determination that the State could not offer in evidence, in a murder trial now pending, three written statements of defendant relating to a stolen car belonging to the victim. The stated grounds for the ruling were that (1) since the statements were made after complaints had been filed charging defendant with theft of the car and illegal possession of another stolen car, and when he was without the assistance of counsel, they were inadmissible even though voluntary, citing Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and State v. Green, 46 N. J. 192 (1965); and (2) in any event, the statements were not relevant to the murder charge. We granted leave to appeal and, by agreement of counsel, proceeded to oral argument and a determination in order that the trial might continue without delay.

Massiah and Green dealt with situations where the defendant’s written statement was made after indictment and When he was without the assistance of counsel. In neither case did the court say, or as much as imply, that the rule laid down would extend to a situation where, as here, no indictment had yet been returned but only a complaint filed.

As for the trial judge’s second reason, we find defendant’s statements relevant to the issue of homicide. The several statements defendant gave P. B. I. Special Agent Wells and Detectives Bowler and Tucker set out his version of how he obtained possession of the car and at what place and what time, the route he followed to reach Yakima, his gasoline purchases, etc. When considered in the light of other proofs adduced by the State, these statements have the potential of inculpating defendant in the alleged homicide.

We find no merit in defendant’s argument that the statements were not admissible under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It appears that he was several times fully informed as to his Miranda rights and that he voluntarily, knowingly and intelligently waived them when he gave the statements in question.

Reversed with the direction that the three statements be admitted in evidence.