author: Yanoff, J. C. C. t/a P. J. D. C.

text:
    IN THE MATTER OF ZEPHYR HAYES, PLAINTIFF, v. BENEDETTO MONGIOVI, TRADING AS MOM BUTCHER SHOP AND/OR VICTORY MORTGAGE CORP., DEFENDANT.
    District Court Essex County
    Argued October 2, 1972
    Decided November 1, 1972.

      Mr. David Gelband, of Messrs. Freeman & Bass, argued the cause for Plaintiff.

      Miss Anne W. Elwell, of Messrs. Ball, Broege, Elwell, Fogel & Livingston, argued the cause for Defendant.
   Yanoff, J. C. C. t/a P. J. D. C.

The simple issue to be decided in this case is whether N. J. S. A 4:19-16 provides relief to a person who is injured, but not bitten, by a dog.

The statute reads in part:

Liability of owner regardless of vieiousness of dog:
The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former vieiousness of such dog or in the owner’s knowledge of such vieiousness.

The facts here are clear. Plaintiff was standing on a sidewalk. The dog was on a leash on the opposite side of the street, broke loose, came across the roadway and knocked plaintiff down, injuring her. The evidence convinces me that plaintiff has not sustained the burden of proving that the dog had exhibited vicious propensities prior to this incident.

Three recent decisions interpret the statute. In Foy v. Dayko, 82 N. J. Super. 8 (App. Div. 1964), the court held contributory negligence a defense to an action under the statute. Speaking for the court, Judge Conford said (at 12), “Statutes in derogation of the common law are ordinarily strictly construed.” He continued:

We deem it implicit in the statute, having regard to the limited motivation for its adoption, that the Legislature intended the salutary and just result of precluding recovery by one whose own negligence proximately resulted in his injury, [at 14]

It seems to me reasonable to infer that by this language Judge Conford meant that the statute, since it extends the liability of dog owners, should not be construed to extend it so far as to create liability to one contribufcorily negligent in the absence of express language to that effect.

In Gross v. Dunham, 91 N. J. Super. 519 (App. Div. 1966), the question was whether a dog owner was responsible under the statute to a person who had been bitten, for all injuries sustained during the occurrence, including injuries resulting from being knocked down. An Appellate Division part, which did not include Judge Conford, held that he was. The court said, per curiam:

We do not believe that N. J. S. A. 4:19-16 should receive the limited construction placed on it by the trial court and urged on appeal by defendant. The statute has been described as “distressingly ambiguous on its face.” Foy v. Dayko, 82 N. J. Super. 8, 13 (App. Div. 1964). We consider it to be remedial legislation entitled to a liberal interpretation.
Moreover, the “plain meaning” of the statute compels the conclusion that it is not limited to recovery for injuries resulting from the bite alone. It imposes liability for such damages as may be suffered by the person bitten. For example, if a person is bitten by a vicious dog and during the same incident receives an eye laceration caused by the dog’s paw, we consider the damage for the eye injury to be “damages *’ * * suffered by the person bitten,” as contemplated by the statute.

Most recently, in Tanga v. Tanga, 94 N. J. Super. 5 (App. Div. 1967), it was held, opinion by Judge Conford, that the liability created by the statute was that of an insurer.

It is now argued that plaintiff should recover even though not bitten and that the statute should be given a broad construction because of the language used in Gross v. Dunham, supra. The case of Hicks v. Sullivan, 122 Cal. App. 635, 10 P. 2d 516 (D. Ct. App. 1932), is cited in support. The pertinent California statute is similar to ours, providing that “The owner of any dog which bites any person * * * shall be liable for such damages as may be suffered by the person bitten * * Deering’s General Laws, Act 384a, Stats. 1931, p. 1095. But it was clear there that the dog was known to be vicious. He was muzzled on police order because it had bitten before. The court said:

Any substantial damage to person * * * which is the proximate result of the attack of a dog with known vicious habits, * * * may create liability on the part of the owner * * *." [122 Cal. App. at 638, 639, 10 P. 2d at 517]

The result rested on the common law, not the statute. Clearly, the enactment of the statute extended the liability of the dog owner, but did not eliminate the common law cause of action where scienter is proved.

Where legislatures have wanted to extend the liability of dog owners to nondog bite situations, they have found the language to do so. Massachusetts G. L. [Ter. ed.] c. 140 § 155, see Leone v. Falco, 292 Mass. 299, 198 N. E. 273 (Sup. Jud. Ct. 1935); Florida F. S. A. § 767.01, see Knapp v. Ball, 175 So. 2d 808 (Fla. D. Ct. 1965); Connecticut Genl. Stat. 1949, § 3404, see Verrilli v. Damilowski, 140 Conn. 358, 100 A. 2d 462 (Sup. Ct. Cr. 1953); Illinois Rev. Stat. 1959, c. 8, par. 12d, see Beckert v. Risberg, 33 Ill. 2d 44, 210 N. E. 2d 207 (Sup. Ct. 1965); Minnesota, Stat Ann. § 347.22, see Lavalle v. Kaupp, 240 Minn. 360, 61 N. W. 2d 228 (Sup. Ct. 1953); District of Columbia, Act. June 19, 1878, §§ 1, 2, 4, 5, 20 Stat. 173), see Karlow v. Fitzgerald, 110 U. S. App. D. C. 9, 288 F. 2d 411 (D. C. Cir. 1961).

I see nothing inconsistent in giving the statute a broad construction as to damages afforded a person who has been bitten and who thus comes within the explicit provisions of the stattute, as in Gross v. Dunham, and in restricting the protected class to those explicitly designated by the statute, namely, persons who have been bitten. It seems to me that Foy v. Dayko, supra, by excluding contributorily negligent persons tends that way. If the Legislature had wanted to eliminate the scienter rule in all cases where a dog injures a person, it could easily have said so. It is not for a court to extend liability by rewriting legislation.

There will be a judgment for defendant.


source: Caselaw Access Project

author: Barry, J. C. C.

license: Public Domain

text:
    HELEN HIGDON AND ROBERT HIGDON JOINTLY, AND ROBERT HIGDON, INDIVIDUALLY, PLAINTIFFS, v. ISABELLE BONING, DIRECTOR OF WELFARE, FRANKFORD TOWNSHIP, DEFENDANT.
    Sussex County Juvenile & Domestic Relations Court
    Decided November 6, 1972.

      Mr. Bruce LaCarrubba, for plaintiff (Mr. James B. Ventantonio, Director Somerset-Sussex Legal Services, Sussex Office, attorney).

      Mr. Richard Hughes, for defendant (Messrs. Silverman and Hughes, attorneys).
   Barry, J. C. C.

Plaintiff Robert Higdon, 42 years of age, is suffering from cerebral palsy. He has so suffered during his entire life. He is permanently disabled from the effects of this disease. He resides at home with his mother, Helen Higdon, 74 years of age, in Prankford Township and has so resided for the past 11 years.

On December 3, 1971 plaintiffs applied to the Sussex County Welfare Board for assistance for Robert. The results of this application, the hearing on the appeal from that determination and the subsequent reapplication of September 8, 1972 were all in the negative. The reason for the denials was that Robert’s income, derived from two sources, exceeded the standards set by the State of New Jersey Public Assistance System, which establishes guidelines for welfare boards. Subsequent to these denials plaintiffs applied to Isabelle M. Boning, Director of Welfare of Prankford Township, for assistanee as needy persons under N. J. 3. A. 44:8-107 to 145. This application was denied on the grounds that plaintiff Robert Higdon did not qualify under section 122 of the law (N. J. S. A. 44:8-122) and that he was entitled to the benefits sought from the Sussex County Welfare Board. Therefore, defendant was under no obligation to render any assistance to plaintiffs. The sole issues before this court are: (1) whether Robert Higdon qualifies under section 122 of the General Public Assistance Law, N. J. S. A. 44:8-107 to 145, and (2) whether Prankford Township is obligated to render assistance under this law.

In order to make a determination as to whether plaintiff Robert Higdon is needy under this act, inquiry must be made as to his income and expenses, and as to the cost of the treatment necessary to make him a functional asset to society. Robert Higdon receives $169.70 a month as Social Security benefits and $30 per month from the Veterans Administration. This latter sum represents a portion of a total payment of $98.06 paid directly to Helen Higdon by the Veterans Administration, but according to the latter, allocated for plaintiff Robert’s needs. Robert’s living expenses for medication, food, milk, clothing and miscellaneous total $130, leaving a weekly surplus of $16.20.

Uncontroverted testimony shows that Robert is in need of physical therapy. A denial of this therapy would result in both emotional and physical suffering, and such denial would destroy him physically and mentally. Both Dr'. Varroney and Dr. Spears stipulated the need for an audiological examination of Robert. Dr. Spears further testified that Robert needs neurological reevaluation as to adjustment of his anti-eonvulsant medication on a monthly basis at a hospital or by an area physican. The total cost of the proposed treatments is $70 a week. Applying Robert’s weekly income-expenses surplus of $16.20 to this figure reduces the necessary sum to $54.80 a week. Plaintiff contends that in order to alleviate his immediate suffering these treatments must be made available.

N. J. S. A. 44:8-122 provides that a director of welfare

* * * shall render such aid and material assistance as he may in his discretion, after reasonable inquiry, deem necessary to the end that such person may not suffer unnecessarily, from cold, hunger, sickness, or be deprived of shelter pending further consideration of the case.

During the trial, defendant did not rebut plaintiffs’ proofs as to Robert’s being needy and in need of immediate assistance. Defendant in her post-trial brief feels ihat this assistance, “which is in the nature of sophisticated treatment, violates the tenor and intendment of the act we have been discussing.” This court does not agree. The statute states specifically in section 122 (N. J. S. A. 44:8-122) that such needy person may not suffer unnecessarily from sickness. Section 124 (N. J. S. A. 44:8-124) would allow assistance in the form of medical care. Certainly defendant cannot expect the statute to list every sickness or disease for which the statute was intended to provide relief. This is not the case of a person needing a heart transplant or the use of an expensive kidney machine, either of which might be “sophisticated treatment,” as defendant suggests. (But the statute neither expressly nor impliedly excludes any sickness or disease for which a needy person might receive assistance.) Plaintiff seeks physical therapy which comprises almost half of the estimated $70 he asserts will relieve his suffering. The term “physical therapy,” as defined in Loman’s Lawyers’ Medical Cyclopedia, is used to indicate the use of a variety of physical means in treatment. These include water, light, heat, electricity, remedial exercises and manual applications such as massage. In light of the testimony elicited at trial this court is not inclined to accept defendant’s position that the physical therapy sought by plaintiff is not within the purview of the General Public Assistance Law, N. J. S. A. 44:8-107 to 145.

Furthermore, defendant in her brief admits that assistance should be rendered by municipalities in certain circumstances, but that such assistance must be of a nature designed only to preserve life and limb until other arrangements can be made. This reasoning, however, does not meet the standards of concern for which the Legislature enacted this law. Notwithstanding, uneontradicted testimony by Dr. Varroney at the trial of this matter was that a denial of the needed therapy would result in both emotional and physical suffering for Robert and would destory him physically and mentally. Eor this court to rule that Robert did not qualify for assistance under the act would be abhorrent in light of the clear intent of the Legislature in passing this statute.

Defendant’s second contention, that Erankford Township is not obligated to afford assistance to plaintiffs, is equally without merit. At no time throughout this entire proceeding has defendant attempted to rebut plaintiffs’ proof of the existence' of need. Indeed, the only argument put forward by defendant as to the applicability of N. J. S. A. 44:8-107 to 145 was her contention that the treatment and other assistance sought by plaintiffs was so sophisticated as not to be within the purview of the law. This contention has heretofore been considered by the court.

Defendant at the trial and in her post-trial brief relies primarily upon N. J. S. A. 44:8-108, in its definition of “public assistance,” for the contention that Erankford Township is not legally obligated to render assistance to plaintiffs. This assertion is based upon the contention that plaintiff is eligible for benefits from the Sussex County Welfare Board, which benefits would greatly exceed any assistance obtainable from the township. Defendant bases this contention upon the allegation that plaintiffs’ application for assistance to the Sussex County Welfare Board was improperly denied and that therefore there is assistance provided otherwise under the laws of the State. See N. J. S. A. 44:8-109. This matter, however, is not before the court. Plaintiffs applied to the Sussex County Welfare Board for assistance in December 1971. The application was denied as the board determined that Robert Higdon’s income exceeded the maximum income level established for assistance eligibility under this program. Plaintiff appealed this decision to the Department of Institutions and Agencies, which decided that the Sussex County Welfare Board made a determination “consistant with official standards and regulations,” thus affirming the Welfare Board’s finding. Plaintiff reapplied for this same assistance on September 8, 1972 which reapplication was also denied. If it is defendant’s contention that plaintiff must look behind the Sussex County Welfare Board’s ruling as well as the ruling of the Department of Institutions and Agencies to ascertain the reasoning behind their decisions, this court does not agree that plaintiffs should be so burdened. Perhaps an alternative would have been to appeal these rulings to the appropriate court, but this court will not decide that question as it is not properly before it. The Sussex County Welfare Board is not a party to these proceedings.

Plaintiffs contend that the burden to relieve the needy is primarily on the municipality; indeed their case rests on this point. This court agrees with their contention. N. J. S. A. 44:8-109 declares that the public policy of this State is that

every needy person shall, while in this State, be entitled to receive such public assistance as may be necessary, and that the furnishing of such public assistance is primarily the duty of the municipalities and of civic and charitable organizations but that all needy persons not otherwise provided for under the laws of this State shall hereafter receive public assistance pursuant to law and the provisions of this act. [Emphasis added]

“Public assistance,” as used in this law, is defined in N. J. S. A. 44:8-108 as

* * * assistance rendered to needy persons not otherwise provided for under the laws of this State, where such persons are willing to work but are unable to secure employment due either to physical disability or inability to find employment, and includes what is commonly called “relief” or “emergency relief”.

Though the rendering of such aid is left to the discretion of the Director of Welfare, the assistance obtainable under the act is mandatory, “to the end that such person may not suffer unnecessarily, from cold, hunger, sickness * * *." N. J. S. A. 44:8-122.

The public policy declared in N. J. S. A. 44:8-109 reflects the Legislature’s concern for the alleviation of human suffering and the recognition of a certain basic human dignity which it is the duty of society to foster and preserve. It is clear, from a reading of the General Public Assistance Law, N. J. S. A. 44:8-107 to 145, that this legislative intent was to make certain that the needy should not suffer unnecessarily from the burdens of sickness. Historically, this burden has been primarily on the municipality as a matter of public policy.

In light of the uncontroverted needs of plaintiff Robert Higdon, his undisputed inability to pay for these needs, and a finding by this court that he is a person “not otherwise provided for under the laws of the State,” this court finds that defendant improperly construed the provisions of the General Public Assistance Law in denying assistance to plaintiff. Defendant should have made the inquiries set forth in N. J. S. A. 44:8-121 and rendered immediate aid pursuant to the provisions of the act.

Judgment for plaintiff in the amount of $54.80 a week, to provide physical therapy, visiting homemaker services for daily living needs, and weekly treatment by Dr. Yarronney. Defendant will also assume the cost of the monthly seizure control treatment and an audiological evaluation and, pend? ing the outcome of the latter, will provide funds for occupational and speech therapy if needed. Homemaking services supplied by visiting Homemaker Services of Sussex County, Inc., from June 19, 1972 to October 16, 1972, at the rate of $3 an hour, totaling $312 were afforded and have not been paid. The court directs this sum to be paid by defendant forthwith.

This matter will be held open so that a further hearing may be had, if the parties desire it, on the need and cost of such occupational and speech therapy.


author: Per Curiam.

text:
    STATE OF NEW JERSEY (BOROUGH OF FREEHOLD), PLAINTIFF-RESPONDENT, v. TOMAR KOHNS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 31, 1972
    Decided November 15, 1972.
    Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Michael D. Schottland argued the cause for appellant Tomar Kohns (Messrs. Chamlin & Schottland, attorneys).

      Mr. Jerry Sokol argued the cause for respondent Borough of Freehold.
   Per Curiam.

Defendant was convicted in the Municipal Court of Borough of Freehold of violating a borough ordinance. On appeal to the Monmouth County Court, after a de novo trial on the record below, his conviction was reversed. He appeals from an order denying his motion to be permitted to recover from the borough, as costs, the fee for filing his appeal and the cost of the transcript of the municipal court hearing.

We affirm the order of the County Court. In the absence of a statute providing otherwise, the State is not liable for costs, incurred in criminal prosecutions. 20 Am. Jur. 2d, Costs, § 107 at 83 (1965). See also State v. Borg, 9 N. J. Misc. 261, 153 A. 374 (Sup. Ct. 1931). We find R. 3:23-8(e), cited by defendant, to be inapposite.

Affirmed.


text:
    MARY CAPOZZOLI, PLAINTIFF-RESPONDENT, v. VINCENT J. CAPOZZOLI, ALSO KNOWN AS JAMES CAPOZZOLI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 6, 1972
    Decided November 15, 1972.

      Before Judges Collester, Leonard and Halpern.

      Mr. Eugene A. Liotta, attorney for appellant.

      Messrs. Shapiro, Berson, Hochberg & Mandel, attorneys for respondent (Mr. George S. Hochberg and Mr. Howard M. Davis, on the brief).
   Per Curiam.

Plaintiff brought suit for a divorce based on a separation of more than 18 months from her husband.

N. J. S. A. 2A:34-2(d). Defendant did not contest the divorce but counterclaimed for an equitable distribution of real property owned by plaintiff. The court granted the divorce but denied relief sought by the counterclaim with the exception of $161.79 paid by defendant for taxes on plaintiffs property during 1947 and 1948. Defendant appeals.

The parties were married on September 12, 1926. They have been separated since Eebruary 1947 when plaintiff brought an unsuccessful suit for divorce on the ground of extreme cruelty. The only issue of substance raised on this appeal is whether the trial court erred in denying defendant’s claim for an equitable distribution of plaintiff’s property pursuant to the provisions of N. J. S. A. 2A:34-23. The property consists of a two-family house in which plaintiff resides and an adjoining tract of land located in Berkeley Heights.

The evidence presented in this case shows that plaintiff’s mother purchased the two-family house in 1941 for $2,400 and gave it to plaintiff as a gift. The court disbelieved defendant’s testimony that he gave plaintiff $2,000 to pay for the house. The property having been secured by plaintiff as a gift was not property acquired during marriage which would be subject to equitable distribution as a marital asset following a divorce within contemplation of the statute. Painter v. Painter, 118 N. J. Super. 332, 336 (Ch. Div. 1972).

The adjoining tract of land was purchased by plaintiff in 1945, over defendant’s objections, for $1,000 which she borrowed from her mother and subsequently repaid from her earnings. Plaintiff has lived alone in the house since about 1950. She has supported herself and paid all expenses for the upkeep and taxes on both properties.

We are in full accord with the trial court’s decision that defendant is not equitably entitled to any interest in either of plaintiff’s properties.

Affirmed.


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

text:
    THE ALLAN-DEANE CORPORATION, A DELAWARE CORPORATION QUALIFIED TO DO BUSINESS IN THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OF BEDMINSTER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE TOWNSHIP OF BEDMINSTER PLANNING BOARD, DEFENDANTS-RESPONDENTS AND LYNN CIESWICK, APRIL DIGGS, W. MILTON KENT, GERALD ROBERTSON, JOSEPHINE ROBERTSON AND JAMES RONE, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED, PLAINTIFF-INTERVENORS-APPELLANTS, v. THE TOWNSHIP OF BEDMINSTER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ITS OFFICIALS, EMPLOYEES, AND AGENTS, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF BEDMINSTER, THE PLANNING BOARD OF THE TOWNSHIP OF BEDMINSTER, AND THE ALLAN-DEANE CORPORATION, A DELAWARE CORPORATION QUALIFIED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1972
    Decided November 14, 1972.

      Before Judges Lewis, Carton and Mintz.

      Mrs. Lois D. Thompson, of the New York bar, admitted pro hac vice, argued the cause for appellants (Mr. Peter A. Buchsbaum, American Civil Liberties Union of New Jersey, attorney).

      Mr. William W. Lanigan argued the cause for respondent The Allan-Deane Corporation (Mr. Lanigan and Mr. Daniel F. O’Connell, on the brief).

      Mr. Nicholas Conover English argued the cause for respondents Township of Bedminster, et al. (Mr. Bingham Kennedy on Statement in Lieu of Brief).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Plaintiffs Lynn Cieswiek et al., proposed intervenors (herein intervenors), appeal from an order of the Law Division dated June 13, 1972 denying their motion to intervene in the matter of the Allan-Deane Corporation v. Bedminster, Tp. et al., an in lieu of prerogative writ proceeding commenced August 23, 1971.

Plaintiffs on June 1, 1972 instituted a separate action against the Township of Bedminster ei al. A motion to consolidate that proceeding with the Allan-Deane suit was denied.

On the same day (June 29, 1972) that the intervenors filed with this court a notice of appeal on the theory that their intervention should be deemed a matter of right, they also filed a motion for leave to appeal from the trial court’s denials of intervention and consolidation to the extent that such orders might be considered interlocutory.

The application for leave to appeal was denied by a summer panel of the Appellate Division on August 11, 1972 and its determination has not been disturbed. The trial court thereupon scheduled the Allan-Deane v. Bedminster case for trial on November 6, 1972. At this juncture we note that trial was originally scheduled to commence June 21, 1972.

On October 25, 1972 there was submitted to this court a motion by intervenors for a stay of the November 6 trial pending disposition of their outstanding notice of appeal which was filed allegedly as of right. By order of October 27, 1972 we elected to consider the merits of the appeal and to decide it simultaneously with the motion for stay; the trial was stayed temporarily pending further order of this court. We accelerated the appeal and required the record and briefs to be filed by October 30, 1972 (which under the rules were due by that date) and scheduled oral argument for November 6, 1972. The trial court thereupon rescheduled the trial for November 27, 1972.

The record reveals that the trial judge, in the exercise of his judicial discretion, determined in essence that the interests of the intervenors would not be impeded or adversely affected by the outcome of the Allan-Deane v. Bedminster litigation; that permitting the intervention and consolidation sought by intervenors would unduly delay, interfere with and prejudice the rights of the parties in the original controversy, and that the issues in the two separate actions were not so parallel as to warrant intervention and consolidation. This court, as previously noted, denied leave to appeal from those determinations to the extent that they were interlocutory.

The single issue now before us is whether intervenors may as a matter of right intervene in the Allan-Deane v. Bedminster suit. It is conceded by intervenors that if such right exists, a further delay of the trial would be necessary in order to permit their anticipated pretrial discovery.

It appears that there are approximately 13,000 undeveloped acres in the Township of Bedminster and that the Allan-Deane Corporation is the owner of 467 acres, most of which are zoned for single-family homes on five-acre plots. The developer proposed to construct on its lands single-family homes on one-acre parcels of land, town houses, multifamily dwellings, an office-research complex, a motel and a golf course. By its complaint certain provisions of the township zoning ordinance are challenged as unreasonable and exclusionary, and the landowner sought to compel the municipal defendants to consider zoning changes that would permit the use of its property for the purposes proposed.

Over nine months after the commencement of that suit the intervenors’ complaint for injunctive relief was filed by several individuals, who are nonresidents of Bedminster Township, on behalf of themselves and all others similarly situated. The first paragraph of their complaint states:

The Township of Bedminster, New Jersey (hereinafter “Bedminster” or “the Township”) is an exclusive, virtually all-white community of predominantly middle and upper-income persons in Somerset County. Through its zoning laws and related Master Plan, housing policies and practices (hereinafter sometimes referred to as “exclusionary zoning”), Bedminster excludes black and Spanish-speaking people, blue-collar workers, young married couples, other young adults, the elderly and other persons of low and moderate income (hereinafter sometimes referred to as the “excluded class”) from living therein.

they further alleged that their suit was instituted as a class action, for

(a) a declaratory judgment that Bedminster’s exclusionary zoning is in violation of the Constitutions and certain statutes of the United States and the State of New Jersey; (b) an injunction prohibiting the Township from enforcing such exclusionary zoning, requiring it to enact inclusionary zoning laws and Master Plan, and requiring it to adopt and implement an affirmative-action program to rectify past discrimination and exclusion; and (c) an injunction requiring AllanDeane, as part of its intended housing development project, to construct a significant amount of low and moderate-income housing.

Intervention as of right must be made upon timely application by an applicant who claims “an interest relating to the property or transaction which is the subject of the action,” and the claimant must be so situated “that the disposition of the action may as a practical matter impair or impede” the ability of claimant to protect that interest. R. 4:33-1. See State v. Lanza, 39 N. J. 595, 600 (1963), app. dism. 375 U. S. 451, 84 S. Ct. 525, 11 L. Ed. 2d 477 (1964); Grober v. Kahn, 88 N. J. Super. 343, 361 (App. Div. 1965), mod. on other grounds 47 N. J. 135 (1966); Government Security Co. v. Waire, 94 N. J. Super. 586, 588-589 (App. Div.), certif. den. 50 N. J. 84 (1967).

Plaintiff Allan-Deane’s attack upon the local zoning ordinance is directed toward remedial relief to permit the use of its property for specific purposes. It is entitled to an expeditious disposition of the issues raised without the attendant delays and foreseeable complexities that would be superimposed upon its controversy by intervenors’ broad challenges against the zoning policies of the municipality with respect to all of the undeveloped lands within its boundary. Moreover, the outcome of the Allan-Deane litigation with respect to its relatively small acreage would not have a substantially adverse effect upon the broader issues and the objectives projected by intervenors’ belated action.

There is considerable doubt as to whether intervenors have an interest in “the property or transaction which is the subject of the action,” or that they acted with timeliness, as contemplated by R. 4:33-1. That aside, however, the findings and conclusions of the trial judge are supported by the record. We are satisfied that intervenors have not demonstrated that they are entitled to intervention as a matter of right.

Accordingly, the instant appeal is dismissed without prejudice, however, to intervenors making a timely application to the trial court to appear amicus curiae in the AllanDeane suit for the purpose of filing a brief.

By order of this court on November 8, 1972 we vacated our temporary stay of the trial to the end that the trial may proceed as presently scheduled on November 27, 1972.

Appeal dismissed.


text:
    MARY MASSIE EBERHARDT AND WILLIAM EBERHARDT, PLAINTIFFS-APPELLANTS, v. GEORGE VANERELLI AND NEW JERSEY COLLEGE OF MEDICINE & DENTISTRY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1972
    Decided November 20, 1972.

      Before Judges Lewis, Carton and Mintz.

      Mrs. Mabel L. Richardson argued the cause for appellants.

      Mr. Kenneth J. Fost argued the cause for respondents (Messrs. Stevens & Mathias, attorneys).
   Per Curiam.

In this automobile negligence case the jury returned verdicts on the issue of liability against plaintiffs and in favor of defendants New Jersey College of Medicine and Dentistry and Vanarelli. The pertinent facts are set forth in the reported opinion of the trial judge (115 N. J. Super. 555 (Law Div. 1971)), who denied plaintiffs’ motion for new trial. Plaintiffs appeal.

We perceive no reversible error in the trial judge’s action in recessing the jury’s deliberations overnight. - He took this action about 5 p.m. when the jury had returned for further instructions after three hours deliberation. We consider that he acted intelligently and practically in view of the circumstances confronting him after considering the applicable legal principles. We note that he carefully admonished the jury as to its responsibilities. His action was well within the discretion imposed upon him. We affirm essentially for the reasons expressed in Judge Kimmelman’s written opinion. We observe also that after the trial court’s decision was rendered the rules of court were amended to adopt the procedure followed in this case. R. 1:8-6 (b).

Plaintiffs’ additional argument that the verdict was against the weight of the evidence also lacks merit. Clearly a fact issue was presented which required resolution by a jury. The evidence in the record justified the jury’s determination and the trial court’s refusal to grant a new trial.

We have examined the other points urged for reversal and find them to be without substance.

Affirmed.


author: Toscano, J. C. C.

text:
    LOUIS KAYNE, PLAINTIFF, v. MAYOR AND TOWNSHIP COUNCILMEN OF THE BOROUGH OF EAST PATERSON, DEFENDANTS.
    Superior Court of New Jersey Law Division.
    November 15, 1972.

      Mr. Philip C. Geibel, attorney for plaintiff.

      Messrs. Ferrara, Glock & Spector, attorneys for defendants.
   Toscano, J. C. C.

Temporarily Assigned. This is a class action instituted by plaintiff Louis Kayne for himself and for all other members of the East Paterson Police Department to compel defendant Borough of East Paterson to pay compensation to such members for appearances in municipal court in accordance with Ordinance No. 71-4, which specifically provides for such compensation in addition to compensation for appearances in the County and Superior Courts and in the Supreme Court. The borough’s contention is that the ordinance in question is ultra vires insofar as it would authorize the payment of compensation for municipal court appearances.

Plaintiff has moved for summary judgment and the borough has urged that the court declare the provision in question ultra vires. Clearly the matter is ripe for summary determination, the only issue being the legal question as to the validity of the provision.

The borough relies on N. J. S. A. 40A:14-135, which empowers a municipality to compensate members of the police department for time spent in appearances “before any grand jury or at any County, Superior or Supreme Court proceeding, except in a civil action.” The ordinance in question was enacted pursuant to this statutory enabling provision. The borough contends that the absence of mention, in the statute, of municipal court proceedings compels the conclusion that the Legislature intended that the municipalities not have the power to compensate policemen for their attendance at such proceedings. The plaintiff contends that adequate support for the provision in question is found in N. J. S. A. 40:48-1, which empowers a municipality to provide for the employment and compensation of municipal officials and employees, and N. J. S. A. 40:48-2, which generally empowers a municipality to enact any ordinance that the municipality deems necessary and proper for the good government and welfare of the community.

The provision in question that relates to compensation for municipal court appearances is outside the scope of the enabling legislation and is therefore invalid. Plaintiff correctly points out that statutory provisions are to be read as part of a consistent whole and interpreted so as to achieve harmonious results. Jacobs v. N. J. State Highway Authority, 54 N. J. 393 (1969); Brewer v. Porch, 53 N. J. 167 (1969); Loboda v. Clark Tp., 40 N. J. 424 (1963). The application of this principle of construction, however, supports the position taken by the borough, namely, that the enactment of 40A:14-135 indicates that the Legislature believed that no prior legislation (such as 40:48-1 and 40:48-2) had empowered municipalities to provide for compensation of policemen for court appearances; otherwise the enactment of 40A:14-135 would be a meaningless gesture, the grant of a power already possessed by municipalities. A reading of the statutory provisions as a whole, therefore, compels the conclusion that 40A:14-135 was intended as a grant of additional power to municipalities, which power did not include the authority to provide compensation for appearances in municipal court.

Motion for summary judgment by the plaintiff is denied based on the finding that the provision in the ordinance dealing with compensation for municipal court appearances by police officers is ultra vires and beyond the delegation of power granted in N. J. S. A. 40A:14-135.


author: Steinbrugge, J. D. C.

text:
    SARAH BRODY, EXECUTRIX OF THE ESTATE OF EUGENE BRODY, DECEASED AND SARAH BRODY, INDIVIDUALLY, PLAINTIFF, v. OVERLOOK HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY, ESSEX COUNTY BLOOD BANK, A CORPORATION OF THE STATE OF NEW JERSEY, EASTERN BLOOD BANK, A CORPORATION OF THE STATE OF NEW JERSEY, WILLIAM U. CAVALLARO, BERNARD ERDMAN, AND HELEN BENJAMIN, DEFENDANTS, AND ESSEX COUNTY BLOOD BANK, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-THIRD PARTY PLAINTIFF, v. EASTERN BLOOD BANK, A CORPORATION OF THE STATE OF NEW JERSEY, THIRD PARTY DEFENDANT.
    Superior Court of New Jersey Law Division.
    Decided November 13, 1972.

      Mr. Ira J. Zarin for plaintiff (Messrs. Zarin, Maran, Lieb & Schneider, attorneys).

      Mr. Eugene M. Purcell for defendant Eastern Blood Bank.

      Mr. William P. Ries for defendants Benjamin, Erdman and Overlook Hospital.

      Mr. Henry Spielvogel for defendant Cavallaro (Messrs. Morgan, Melhuish, Monaghan, McCoid & Spielvogel, attorneys).

      Mr. John B. Stone, Jr. for defendant Essex County Blood Bank (Messrs. Ryan, Saros, Davis & Stone, attorneys).
   Steinbrugge, J. D. C.

Temporarily Assigned. This is an action by Sarah Brody, individually and as executrix of the estate of Eugene Brody, against a hospital, two blood banks, two doctors and a medical technician, to recover damages for the death, by serum hepatitis infection of the blood, of plaintiff’s late husband, Eugene Brody. The essential facts are not in dispute. Eugene Brody was duly admitted as a paying patient to Overlook Hospital and there received, upon the advice of his physician Oavallaro, a number of blood transfusions. It is alleged that Brody subsequently developed hepatitis; it is uncontroverted that he shortly thereafter expired.

There are several counts to the amended complaint. The first sets forth a cause of action grounded in negligence by each named defendant individually under the Wrongful Death Act, N. J. S. A. 2A:31-1 et seq. The second sets forth a cause of action accruing to plaintiff by reason of pain and suffering endured by decedent. The third count sets out plaintiff’s loss of consortium and of services, and the fourth count alleges that defendant hospital (hereafter “Overlook” or “the hospital”) breached implied warranties of merchantability and of fitness for particular purpose, by providing decedent with hepatitis-infected blood which ultimately, it is alleged, caused his death. The fifth and sixth counts are against the blood banks and sound in negligence; the seventh and eighth counts, also against the blood banks, sound in breach of warranty.

The court holds the following:

(1) Suit against defendant Oavallaro (alleged to be decedent’s attending physician), against defendant Erdman (alleged to be medical director of Overlook’s blood bank), and against defendant Benjamin (alleged to be the Overlook medical technologist in charge of blood for transfusion) will come on to the jury on the theory of negligence. The court intimates no opinion as to whether either of the hospital’s two employees, or both of them, would be liable to plaintiff under a theory of strict tort liability or under a theory of breach of implied warranties under the Uniform Commercial Code, because no allegations to this effect have been made by plaintiff.

(2) (A) If the jury finds that serum hepatitis virus was in the blood transfused into decedent under the supervision of Overlook Hospital, and that decedent died as a re-suit of hepatitis, then strict tort liability must be applied to Overlook Hospital.

(B) N. J. S. A. 2A:53A-8 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability. Therefore the amount of damages recoverable is not restricted to the statutory limit.

(3) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Eastern Blood Bank, the theory of strict tort liability shall apply.

(4) (A) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Essex County Blood Bank, the theory of strict tort liability shall apply.

(B) N. J. S. A. 2A:53A-7 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability.

I. Overlook Hospital

The case at bar presents in starkest relief the issue of what measurement of liability should attach to a hospital when hepatitis-infected blood is transfused to a patient under the hospital’s care and supervision. The question usually is seen to turn on whether the blood is perceived to be a “product” or “goods” sold to the patient, or whether the blood is merely part and parcel of the “services” supplied by the hospital to the patient. If blood is considered a “product” then, under the Uniform Commercial Code, theories of breach of the warranties of merchantability, N. J. S. A. 12A:2-314, and of fitness for particular use, N. J. S. A. 12A:2-315, are applicable. Equally as applicable is the theory of strict tort liability, i. e. liability on the part of the supplier whether or not the supplier was at fault, as expressed in Restatement 2d, Torts, § 402A:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to Ms property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to reach the user or consumer in the condition in which it is sold. (2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

On the other hand, if the hospital’s provision of infected blood is considered a “service,” then a negligence action alone against the hospital will be maintainable.

The leading authority for the proposition that a pajdng patient at a hospital who receives impure or infected blood is the recipient of a service and not of a sale of goods, and therefore cannot recover on theories either of breach of warranty or of strict tort liability, is Perlmutter v. Beth David Hospital, 308 N. Y. 100, 123 N. E. 2d 792 (1954). This decision by the New York Court of Appeals has had an extremely wide-ranging impact, and until recently was considered the definitive treatment of the subject.

But much has changed since 1954 in the operation of hospitals and the legal principles pertaining thereto. Two recent decisions hold that recovery is possible, on a non-negligence basis, by a patient who receives hepatitis-infected blood during his course of treatment at a hospital. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A. 2d 867 (1970), a decision of the Pennsylvania Supreme Court, held that, regardless of whether it was ultimately held that the transfer of blood from defendant-hospital for transfusion into the plaintiff-patient was a “service” or the supplying of a “product,” recovery may be permissible on a claim that the hospital breached warranties of merchantability and/ or fitness of particular purpose under the Uniform Commercial Code. Cunningham v. MacNeal Memorial Hospital, 266 N. E. 2d 897 (Ill. Sup. Ct. 1970) held that blood is a “product” to which the doctrine of strict tort liability is applicable when supplied by a hospital for treatment of a patient’s condition. Cunningham rejected the analysis of Perlmutter and held the hospital to strict liability for injuries suffered by a patient who received hepatitis-infected blood. In doing so, the Illinois Supreme Court adopted the views that (1) blood is a “product” within the meaning of Restatement 2d, Torts, § 402A; (2) the product was “sold,” and (3) the blood was “in a defective condition unreasonably dangerous to the user.” The court rejected the notion that the imposition of strict liability would hamper a hospital’s performance of its primary function:

We do not believe in this present day and age, when the operation of eleemosynary hospitals constitutes one of the biggest businesses in this country, that hospital immunity can be justified on the protection-of-the-funds theory, [266 N. E. 2d at 904].

However, neither Perlmutter, Hoffman, nor Cunningham addressed themselves to any sound policy reasons for extending the doctrine of strict liability to hepatitis cases. Perl-mutter dealt only with the semantic question of whether the transaction (the blood transfusion) was a “sale” or a “service;” Hoffman recognized the problem; Cunningham, dealt only with the verbal formula of § 402A.

But policy considerations are of the utmost importance. Justice Traynor of the California Supreme Court put the idea well when he said,

Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot [Escola v. Coca Cola Bottling Company, 24 Cal. 2d 453, 150 P. 2d 436 (1944), at 440-441.]

This theory has the effect of forcing the entity that markets the product to consider the “accident cost's” of the product when deciding whether and from where to procure it. In the ease of blood, the “safety rationale” emphatically applies to hospitals because, as a general rule, each hospital has a choice of several blood banks as potential suppliers. The blood banks stand in tlie same position to the hospital as the manufacturer of a product does to a distributer—as supplier to marketer. It can be anticipated that adoption of the strict liability standard for the State of New Jersey will have the beneficial effect of forcing hospitals to deal only with those blood banks which have good safety records, thus decreasing the risk of a patient’s becoming infected with hepatitis as a result of a transfusion.

Even in the comparatively low number of cases in which the hospital has recourse to only a single blood bank, imposition of strict tort liability may well spur the hospital to take-a more active role in influencing the bank’s collection processes, i. e.j more careful screening of donors. Most importantly, the imposition of strict liability cannot help but force the hospitals both to supervise more carefully their own use of blood, and to encourage medical research to develop either a more satisfactory test for hepatitis or an immunization vaccine to be given against the disease to a patient about to undergo a transfusion.

The court is not impressed with the argument that a hospital faced with strict liability will only pass along its increased costs to its patients, thus negating the. safety incentive. Insurers will not write liability policies unless satisfied with the level of care exercised by the hospital. And, even if the cost to each patient is marginally increased, public policy dictates the imposition of strict tort liability.

Another important policy justification for strict liability is that of “loss spreading.” If the hospital bears the loss resulting from hepatitis-infected blood, it will tend to spread the loss among all parties, i. e. donors, blood-banks, perhaps its patients. This “allocative effect” will be felt if hospitals allocate their hepatitis costs as a charge on each unit of blood actually used: physicians will automatically more carefully weigh the risks of surgery and transfusions.

This court is mindful of the fact that only nine states still regulate liability for transfusion-associated hepatitis under the common law, while the other 41 have enacted statutes to limit such liability to negligence. Ho such statute has been enacted in New Jersey.

The court holds that N. J. S. A. 2A:53A-8 applies only to negligence actions. That statute reads in pertinent part as follows:

. . . any nonprofit corporation, society or association organized exclusively for hospital purposes shall be liable to respond in damages to such beneficiary [of its works] who shall suffer damage from the negligence of such corporation, society or association or of its agents or servants to an amount not exceeding $10,000.00, together with interest and costs of suit, as the result of any 1 accident and to the extent to which such damage, together with interest and costs of suit, shall exceed the sum of $10,000.00 such nonprofit corporation, society or association organized exclusively for hospital purposes shall not be liable therefor.

Overlook Hospital would fall within the ambit of the statute’s coverage only if it is a nonprofit institution. If Overlook Hospital is a nonprofit institution, then its liability would be limited to $10,000 only in negligence actions. The statute speaks specifically and only of “negligence,” i. e., the immunity is unmistakably limited to acts of negligence. But the concept of negligence is not relevant to the doctrine of strict liability. One is the antithesis of the other. Wherever the ordinary concept of negligence obtains, a showing of “due care” by the defendant rebuts the plaintiff’s contentions. But where strict liability prevails, “due care” is not relevant. Defendant’s liability is predicated upon the fact of the injury’s occurrence, and not upon any lack of care. Thus the situation at bar is one to which N. J. S. A. 2A:53A-8 has no application.

II. Essex County Blood Bank and Eastern Blood Bank

Defendant Essex County Blood Bank, a charitable corporation, attempts to invoke N. J. S. A. 2A :53A-7 to shield it from liability. That statute reads in pertinent part as follows:

No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall * * * be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the work of such nonprofit corporation, society or association * * *

Reliance on the statute is misplaced. Just as N. J. S. A. 2A:53A-8 is limited to negligence actions, so is N. J. S. A. 2A:53A-7. The concept of “negligence” is foreign to that of “strict liability,” and therefore the statute has no application to the situation at bar.

Blood banks fit semantically under the requirements’ of Restatement 2d, Torts, § 402A. All blood banks sell their product (blood) for a price. If the sold blood is infected with hepatitis virus, that blood is in a “defective condition unreasonably dangerous to the user or consumer” (the ultimate patient). A blood bank’s actual business is to sell the product, blood. And it is mandatory that the blood reach the user (the patient) “in the condition in which it is sold”: no opening of the container carrying the blood is permitted at any step along the line of distribution.

This court is not the first to apply strict liability to a blood bank furnishing blood that is infected with serum hepatitis virus. Russell v. Community Blood Bank, 185 So. 2d 749 (Fla. App. 1966), affirmed by the Florida Supreme Court, Community Blood Bank, Inc. v. Russell, 196 So. 2d 115 (1967), reached the identical conclusion on breach of warranty grounds.

Public policy dictates the imposition of strict, tort liability on blood banks, if for no other reason than to discourage carelessness in the selection of donors. If the analogy to traditional products-liability law be followed, a blood bank would appear to stand, not in the shoes of a “manufacturer,” but in that of a “supplier”: it' must' decide ridiich donors among many (the real “manufacturers”) it will buy from. Goldberg v. Kolsman Instrument Corp., 12 N.Y. 2d 432, 240 N. Y. S. 2d 592, 191 N. E. 2d 81 (1963), presented a case where the New York Court of Appeals imposed strict liability on a “final assembler” which received its products fro.m many suppliers. The products arrived in sealed containers that could not be opened for inspection without destroying their utility — just as a blood bank receives phials of donated blood, unopenable for inspection. Cunningham observed that a blood bank’s placing the blood in the stream of commerce suffices to impose strict liability: “If the article left the defendant’s control in a dangerously unsafe condition * * * the defendant is liable whether or not he was at fault in creating that condition or in failing, to discover and eliminate it,” 266 N. E. 2d at 903.

A blood bank may hold a monopoly in a given area, or it may “compete” with other banks. If the monopoly bank is a volunteer blood bank, it will not be able to pass along too much of the increased cost inevitably associated with strict liability, because too great a price hike will lead to the emergence of commercial blood banks, or to hospitals themselves operating a blood bank. On the other hand, where the monopolistic blood bank is a commercial one, it will even more acutely risk competition if it raises its rates. In those instances where blood banks “compete,” the imposition of strict liability will force them to intensify (or in some cases commence) their efforts to find “safe” donors: blood banks with poor safety records will have to charge higher prices, and thus will lose customers.

Where a volunteer blood bank holds a monopoly, strict liability will not end its operations. The blood bank will simply increase its charges, the way all monopolists do when faced with increased costs. Where the volunteer bank is faced with competition, the court believes that the bank would still pass on any cost increases resulting from the imposition of strict liability, because volunteer blood banks have kept their fees lower than what the open market would bring. Should a volunteer blood bank cease operations, this will further insure that less of hepatitis-infected blood will he delivered to hospitals and ultimately to patients.

The "allocative effect” rationale applies to blood banks as well as to hospitals. Where a community has more than one blood bank, strict liability will cause the blood bank with the poorer safety record to charge higher fees. Since hospitals patronize the bank charging the lowest fee, there will be greater demand for blood from the bank with the better safety record. The incidence of hepatitis infection must thus be reduced.

The imposition of strict liability is predicated, not upon fault, but upon physcial control over the defective product at a time when the product is in fact defective. (This does not, however, mean a degree of control to such an extent that the defect could theoretically be eliminated by the controller, see, e. g., Goldberg, supra.) Por a blood bank to be held strictly liable, the serum hepatitis virus must be in the blood while it is under the blood bank’s control.

The usual route that transfused blood follows is from donor to blood bank, and from blood bank to hospital. In the hospital the blood is stored in refrigeration until needed. One unit at a time arrives at the transfusion point. The unit arrives at that point (e. g., operating room, bedside) in its original package. This package identifies the blood type, the blood bank and the identity of the individual donor (this last in code). Since serum hepatitis disease is transmitted through the donor’s blood, it follows that the infection must commence its incubation while the blood is still within the donor’s body or, at the latest, by needle while the blood is being taken from the donor by the blood bank. Thus, the blood in its infected state (a "defective product”) passes through physical control of the blood bank or blood banks and through physical control of the hospital, before being transfused into the patient. There is therefore no problem presented as to whether a blood bank or a hospital might be unfairly burdened with strict liability; at the very least, the defective product, in its defective form, passes through their hands.

It is therefore held that, because transfused blood is a “product,” its transferal constitutes a “sale” or “sales.” Where the blood (“product”) contains serum hepatitis virus, it is in a “defective condition unreasonably dangerous to the user or consumer” (the patient), and the doctrine of strict tort liability applies.

      Farnsworth, “Implied Warranties of Quality in Non-Sale Cases,” 57 Col. L. Rev. 653 (1957);
      Franklin, “Tort Liability for Hepatitis: An Analysis and a Proposal,” 24 Stan L. Rev. 439 (1972);
      Garibaldi, “A New Look at Hospitals’ Liability for Hepatitis-Contaminated Blood on Principles of Strict Tort Liability,” 48 Chicago Bar Rev. 204 (1967);
      Haut & Alter, “Blood Transfusions—Strict Liability,” 43 St. John’s L. Rev. 557 (1969);

        Pollock, “Liability of a Blood Bank or Hospital for a Hepatitis Associated Blood Transfusion in New Jersey,” 2 Seton Hall L. Rev. 47 (1970);
      Comment, “Blood Transfusions and Human Transplants: A Problem of Proof and Causation,” 4 Ind. Legal Forum 518 (1971);
      Comment, “Strict Liability for Disease Contracted from Blood Transfusions,” 66 Nw. U. L. Rev. 80 (1971);
      Comment, “Homologous Serum Hepatitis—Products Liability in a Quandary,” 10 Washhurn L. J. 77 (1970);
      Comment, “Liability for Blood Transfusions Resulting in Serum Hepatitis,” 12 Wm. & Mary L. Rev. 86 (1970);
      Note, 69 Harv. L. Rev. 391 (1955);
      Note, 37 Notre Dame Lawyer 565 (1962);
      Note, 18 OH. L. Rev. 104 (1965);
      Note, 29 St. John’s L. Rev. 305 (1955);
      Note, 103 U. Pa. L. Rev. 833 (1955);
      Note, 24 Vand. L. Rev. 645 (1971);
      Note, 16 Vill. L. Rev. 983 (1970).

        Perlmutter was adopted and used for the basis for decision in the following cases:

        Sloneker v. St. Joseph’s Hospital, 233 F. Supp. 105 (D. Colo. 1964);

        White v. Sarasota County Public Hospital Board, 206 So. 2d 19 (Fla. App. 1968), cert. den. 211 So. 2d 215 (Fla. 1968);

        Hoder v. Sayet, 196 So. 2d 205 (Fla. App. 1967);

        Lovett v. Emory University, Inc., 116 Ga. App. 277, 156 S. E. 2d 923 (1967);

        Carter v. Inter-Faith Hospital of Queens, 60 Misc. 2d 733, 304 N. Y. S. 2d 97 (Sup. Ct. 1969);

        Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P. 2d 1085 (1961);

        Gile v. Kennewick Public Hospital District, 48 Wash. 2d 774, 296 P. 2d 662 (1956);

        Koenig v. Milwaukee Blood Center, Inc., 23 Wis. 2d 324, 127 N. W. 2d 50 (1964).

      See Comment, 66 Nw. U. L. Rev. 80 (1971), at 87, for criticism of Cunningham as “shallow.”

        Jackson v. Muhlenberg Hospital, 53 N. J. 138 (1969).

      Blum & Kalven, “The Empty Cabinet of Dr. Calabresi,” 34 U. Chi. L. Rev. 239 (1967).

      American Medical Association, Committee on Blood, Directory of Blood Banking and Transfusion Facilities and Services (1969) ; American Medical Association, Directory of Blood Banking and Transfusion Facilities and Services (1965).

      An effort by a group of hospitals and a volunteer blood bank to-agree to an exclusive dealing arrangement led to a complaint before the Federal Trade Commission filed by a commercial bank that was being excluded. The Commission found an unfair trade practice in an opinion that did not mention the dangers of commercial blood. See Community Blood Bank of the Kansas City Area, Inc. [1967-1970 Transfer Binder] Trade Reg. Rep. par. 17, 728, at 23,010 (F. T. C. 1966). The Court of Appeals set the Commission decision aside on the ground that tlie blood bank, as a nonprofit corporation, was outside the jurisdiction of the F. T. C. See Community Blood Bank of Kansas City Area, Inc., v. Federal Trade Commission, 405 F. 2d 1011 (8 Cir. 1969).

      Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale L. J. 499 (1961).

      For a list of states see 24 Vand. L. Rev. 649-50 (1971), and 24 Stan. L. Rev. 474, n. 203 (1972).

      National Academy of Sciences, National Research Council, An Evaluation of the Utilization of Human Blood Resources in the United States (1970);

        Hemphill, Survey on Blood Bank Fees and Replacement Policies of Institutional Members of the American Association of Blood Banks (1944).

      See regulations issued by the National Institute of Health, Public Health Service, United States Department of Health, Education and Welfare. 42 C. F. R., §§ 73.3002(e), 73.3005, 73.600(a)(2). 42 U. S. C., § 262(a).


text:
    JOSEPH S. INDYK, INDIVIDUALLY AND AS MAYOR OF THE TOWNSHIP OF MONROE, PATRICK GIBBONS, INDIVIDUALLY AND AS COUNCILMAN OF THE TOWNSHIP OF MONROE, AND THE CITIZENS OF THE TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF NEW JERSEY, PLAINTIFFS-APPELLANTS, v. JOHN KLINK, WINSTON NOBLE, GEORGE O’CARROLL AND JAMES McCORMACK, INDIVIDUALLY AND AS COUNCILMEN OF THE TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 10, 1972
    Decided November 17, 1972.

      Before Judges Lora, Allcorn and Mehler.

      Mr. Jacques S. Lederman argued the cause for the appellants.

      Mr. William C. Moran, Jr. argued the cause for the respondents.
   Per Curiam.

By referendum pursuant to the Optional Municipal Charter Law (N. J. S. A. 40:69A-1 et seq.), the citizens of Monroe Township, Middlesex County, on April 6, 1971 adopted the mayor-council plan F (N. J. S. A. 40:6-9A-74 to 80, inclusive) as the form of their municipal government. The new form of government became effective January 1, 1972, following election of a mayor and members of the council at the general election held November 2, 1971, N. J. S. A. 40:69A—205.

Thereafter, the council adopted an administrative code— “An ordinance to provide for the organization and administration of the government of the Township of Monroe * * *" Section 5.1 of said ordinance provided as follows:

ARTICLE FIVE
ORGANIZATION AND ADMINISTRATION GENERALLY
Section 5.1—Organization Generally.
Except for the offices or terms of office listed in N. J. S. A. 40:69A-207 all offices or terms of office of any Township employee or agency member are hereby abolished as of 12 o’cloek noon on January 1, 1972. Thereafter the Township government shall be comprised, in addition to the Council and Municipal Court, of the following departments, division, bureaus and offices:
(a) Office of the Mayor
(b) Office of the Township Clerk
(c) Department of Administration
(d) Department of Finance
(e) Department of Police
(f) Department of Public Works
(g) Department of Health and Welfare
(h) The respective divisions, bureaus and offices into which such departments are divided pursuant to this code.
(i) The various allied or independent agencies of local government provided pursuant to the charter or general law
(j) Office of the Township Attorney
(k) Office of the Township Engineer.

The ordinance further provided as to the appointment of the township attorney and township engineer:

Section 13.1 7’ownship Attorney.
A Townsihp Attorney shall be appointed by the Council for a term of one year or until his successor has been appointed and qualified.
* * *
Section 14.1 A Township Engineer shall be appointed by the Council for a term of three years or until his successor has been appointed and qualified. He shall be a licensed Professional Engineer.

The present action was commenced by the mayor and one member of the council against the four remaining members of the council, seeking a declaratory judgment that sections 5.1, 13.1 and 14.1 of the administrative code of the township are invalid. In substance, plaintiffs charged that the cited sections violate the Optional Municipal Charter Law by failing to assign the functions, powers and duties of each of the offices of township attorney and township engineer to a specific department of the municipal government, and by empowering the municipal council to appoint each of said officials.

On motion of defendants the trial court granted summary judgment in their favor, finding valid the questioned sections of the ordinance and dismissing the complaint. Plaintiffs appeal from said judgment.

The provisions of the Optional Municipal Charter Law governing the administration of the various powers, functions and duties of the municipal government, their distribution among various departments, and the appointment and removal of the personnel who are charged with their administration in the several mayor-council plans under that law, are found in N. J. S. A. 40:69A-43. In pertinent part, that section sets forth (N. J. S. A. 40:69A-43):

(a) The municipality shall have a department of administration and such other departments, not exceeding 9 in number, as council may establish by ordinance. All of the administrative functions, powers and duties of the municipality, other than those vested in the office of the municipal clerk, shall be allocated and assigned among and within such departments.
(b) Each department shall he headed by a director, who shall be appointed by the mayor with the advice and consent of the council. Each department head shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of his successor.”
* * *
(d) Department heads shall appoint subordinate officers and employees within their respective departments and may, with approval of the mayor, remove such officers and employees subject to the'provisions of the Revised Statutes, Title 11, Civil Service, where that Title is effective in the municipality, or other general law; provided, however, that council may provide by ordinance for the appointment and removal of specific boards or commissions by the mayor.

The language of the foregoing subsections is clear and unambiguous, and its meaning plain. It requires all of the administrative functions, powers and duties of the municipality to be assigned and distributed among and within such administrative departments as shall be created and established by the governing body by ordinance. Specific provision likewise is made for the appointment of the officers and employees to whom are delegated the performance of such functions. Expressly excepted therefrom are the functions of only the municipal clerk, whose appointment and duties are dealt with separately, N. J. S. A. 40:69A-38.

Both the municipal attorney and the municipal engineer are engaged in the performance of administrative functions of the municipality. Each is charged with the administration of such of the powers, functions and duties in the management and operation of the business and affairs of the municipality as have ben entrusted to him by law.

Contrary to defendants’ contention, neither the circumstance that the services rendered by each are professional in nature, nor the fact that in the performance of their respective duties each may be called upon to counsel or to assist the governing body or other municipal agencies and officials in the exercise by the latter of their respective legislative, judicial or executive functions and duties, renders the attorney or the engineer any more or any less an administrative official of the municipality. They are not thereby converted, somehow, to officials who themselves exercise the legislative, judicial or executive functions and duties of the bodies or officials they counsel and advise. Thus, when the municipal attorney drafts an ordinance or resolution for action by the governing body, he is not exercising “a legislative function” as defendants suggest — any more than does the engineer perform a legislative function when he prepares technical specifications for inclusion in an improvement ordinance or in a resolution advertising for bids.

In any event, the mere fact that a municipal official or agency may be charged with the performance of certain functions that may be characterized as legislative or judicial (or gwasi-legislative or quasi-judicial) does not necessarily render them nonadministrative. The officer or agency still is performing his or its functions and duties and, in so doing, is acting administratively. See generally, Handlon v. Belleville, 4 N. J. 99, 104-105 (1950).

In short, the powers, duties and functions exercised by a municipal attorney and a municipal engineer, specifically as delegated by sections 13.3 and 14.2 of the ordinance here challenged, as well as generally, are plainly administrative within the meaning and intent of N. J. S. A. 40:69A-43(a). As such, they are required by said subsection to “be allocated and assigned among and within” one of the departments created for the administration and operation of the municipal government. Id. It necessarily follows that the power to appoint either of said officials does not reside in the council, N. J. S. A. 40:69A-43 (b) and (d). Compare, Hutt v. Robbins, 98 N. J. Super. 99 (App. Div. 1967), certif. den. 51 N. J. 185 (1968).

Additional evidence of the intent of the Legislature in this regard is found in the provisions of the Optional Municipal Charter Law relating to the mayor-council plans for small municipalities (having populations of less than 12,000 persons). Because of the size of these municipalities, the creation of separate departments to administer the various municipal functions was left to the discretion of , the governing body, and the designation of the various administrative officials is specifically delegated to the mayor by the terms of the controlling statute. Thus, N. J. S. A. 40:69A-122 expressfy provides that “An assessor, a tax collector, an attorney, a clerk, a treasurer and such other officers as may be provided by ordinance shall be appointed by the mayor with the advice and consent of the council.”

We conclude, therefore, that the questioned sections of the ordinance are ultra vires the council insofar as they failed to assign the powers, functions and duties of the town attorney and town engineer to the appropriate departments, and insofar as they empowered the council to appoint each of said officials.

This interpretation is dispositive of the remaining contention of defendants. To the extent that sections 139 and 140 of N. J. S. A. 40A:9 authorize the municipal governing body to provide by ordinance for the appointment of a municipal attorney and a municipal engineer in a maimer and for terms other than as directed and permitted by N. J. S. A. 40:69A-43, they conflict and are inconsistent with the latter. In such circumstances, the provisions of the Optional Municipal Charter Law are controlling, despite the fact that N. J. S. A. 40A:9-139 and 140 were enacted in 1971, long after the adoption of the Optional Municipal Charter Law. N. J. S. A. 40:69A-28, 28 and 29; Broadway Nat'l Bank, Bayonne v. Parking Authority, Bayonne, 40 N. J. 227 (1963).

Accordingly, the judgment of the Chancery Division is reversed and the cause is remanded for the entry of judgment in favor of plaintiffs.

      This section is not applicable to a municipality adopting any of the small-municipality mayor-council plans, N. J. S. A. 40:69A-115 through 149.


author: Kolovsky, J. A. D.

text:
    NEW JERSEY STATE POLICE BENEVOLENT ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, IRVINGTON POLICE BENEVOLENT ASSOCIATION, LOCAL 29, A CORPORATION OF THE STATE OF NEW JERSEY, BARRY BARKIN, HOWARD ENGLAND AND DANIEL DeLUCIA, PLAINTIFFS-APPELLANTS, v. MAYOR AND COUNCIL OF IRVINGTON, NEW JERSEY, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, A. R. MANGIONE, JR., DIRECTOR OF CLASSIFICATION OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1972
    Decided November 20, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Peter A. Forgosh argued the cause for appellants (Messrs. Eichler and Forgosh, attorneys).

      Mr. Samuel J. Zucker argued the cause for respondent Town of Irvington.

      Mr. Morton I. Greenberg argued the cause for the other respondents (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

The Irvington Police Benevolent Association, Local 39 (Irvington P. B. A.) sought to induce the town’s governing body to pay its policemen for overtime work at a rate iy2 times their regular wages. In 1970 the town attorney ruled that such payments would be illegal and that the then controlling statute, N. J. S. A. 40:4-7-13.13, authorized payment for overtime only at the regular wage rate. A similar ruling was thereafter made by the Attorney General early in 1971.

This declaratory judgment action was instituted on January 31, 1973 seeking an adjudication that municipalities may pay “overtime to police officers at the rate in excess of straight time when such payments are agreeable to the municipality.” The trial court ruled to the contrary, concluding, as set forth in its final judgment, that “N. J. S. A. 40:47-13.13 precludes the payment of time and one-half for overtime for policemen.” Plaintiffs appeal.

We note at the outset that at the trial level the parties and the court overlooked that N. J. S. A. 40:7-12.13 had been repealed, effective July 1, 1971, by the enactment of L. 1971, c. 197, a revision of the laws relating to fire and police departments, which now appears at N. J. S. A. 40A:14-1 et seq. However, in the aspects with which we are concerned, no substantive change was made by the revision. Provisions identical with that contained in N. J. S. A. 40:47-12.13, which dealt with both policemen and firemen, are embodied in Title 40A — those relating to policemen in N. J. S. A. 40A:14-134 and those relating to firemen in N. J. S. A. 40A:14-50.

The pertinent portion of N. J. S. A. 40A:14-134 (prior to its amendment as of August 9, 1972 by L. 1972, c. 121, which we shall discuss later), read as follows:

In any municipality in -which the officer, board or official having charge or control of the police department or force has authority, in times of any such emergency to summon and keep on duty any paid members of the police department or force for a period of time or times in excess of the hours of ordinary duty, the governing body may provide compensation for some or all of such emergency duty by any such policeman at his prevailing wage, which compensation shall be in lieu of any compensatory time off otherwise due for the emergency duty so compensated.

We agree with the trial judge that the statutory language limited the authority of municipalities to pay a police officer for overtime to payment at the officer’s regular straight time wage rate. Plaintiffs’ argument to the contrary not only ignores the clear language of the statute but also the basic law applicable to compensation of public officers. See Hoboken Local No. 2, etc. v. Hoboken, 23 N. J. Misc. 334, 44 A. 2d 329 (Sup. Ct. 1945), aff’d o.b. 134 N. J. L. 616 (E. & A. 1946)

Prior to the adoption in 1966 of what became N. J. S. A. 40:47-12.13, the only right granted to a policeman called upon to perform overtime services was that granted by N. J. S. A. 40:47-17, now N. J. S. A. 40A:14-133, the right to “a day off for each extra day so served by him.” A police officer could not recover compensation in lieu of compensatory time off, Hoboken Local No. 2, etc. v. Hoboken, supra, until the Legislature, by the enactment of N. J. S. A. 40:47-12.13, authorized payment of compensation “in lieu of any compensatory time off otherwise due for the emergency duty” at the policeman’s “prevailing wage.”

Here the trial court had noted that

* * * the remedy of the plaintiffs here is to appeal to the Legislature to change the mandate which they have written into the statutes and which now limits the municipalities from paying anything more than straight time rates * * *.

That “appeal” was apparently made by someone, for by L. 1972, c. 121, N. J. S. A. 40A:14-134 was amended, effective August 9, 1972, so that it now authorizes municipalities to pay compensation to a policeman for overtime work, either “at Ms prevailing wage or at a rate not in excess of iy¿ times his prevailing hourly wage rate.” The amendment accomplishes the very result which plaintiff Irvington P. B. A. sought in its negotiations with the Town of Irvington, but plaintiffs, at oral argument, nevertheless contended that it does not render the instant litigation moot.

In their brief plaintiffs argued that N. J. S. A. 40:47-12.13 and N. J. S. A. 40A:14-134 (as originally enacted) were unconstitutional. (At oral argument they urged that N. J. S. A. 40:14A-134, as just amended, is also unconstitutional.) They contend that legislation which limits the amount which a municipality may agree to pay its police officers for overtime work denies police officers due process and the equal protection of the laws. Plaintiffs’ contentions lack any substance. Cf. Passaic v. Consolidated Police, etc., Pension Comm’n, 18 N. J. 137, 146-147 (1955); Robson v. Rodriquez, 26 N. J. 517, 522-526 (1958); Mason v. Civil Service Commission, 51 N. J. 115, 127-128 (1968). It was and is the Legislature’s prerogative to decide what amount municipalities may agree to pay to policemen for overtime work.

The judgment is affirmed.


text:
    JOSEPH J. POLCARO, PETITIONER-APPELLANT, v. CITY OF EAST ORANGE, RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Submitted November 6, 1972
    Decided November 27, 1972.

      Before Judges Collester, Leonard and Halpern.

      Mr. Charles J. Farley, Jr., attorney for appellant.

      Mr. John W. Taylor, attorney for respondent.
   Per Curiam.

In this workmen’s compensation case petitioner appeals from an order of the Division dismissing his application for review or modification of a formal award which had been entered by judgment dated July 27, 1965, as amended on August 13, 1965.

Petitioner’s original award was grounded upon a head injury. Following that award petitioner suffered mental problems and was placed in various mental institutions and hospitals. Finally, in 1968 a brain operation (prefrontal lobotomy) was performed.

The application for review or modification was filed in August 1968. The last payment of compensation to petitioner under the original award was made (according to petitioner’s application) in March 1966. Thus, petitioner’s application for review or modification was not filed within the two-year time limit mandated by N. J. S. A. 34:15-27.

In this appeal petitioner contends solely that mental incapacity should toll the two-year time limitation set forth in N. J. S. A. 34:15-27. He argues that petitioner’s condition prevented him from understanding and pursuing his administrative rights and remedies. In spite of the sympathy that arises in favor of petitioner, we conclude that his contention is without merit. Under the facts here existing the Division had no jurisdiction to entertain a claim petition filed after the expiration of the time designated in the above statute. DeAsio v. Bayonne, 62 N. J. Super. 232, 235-236 (App. Div. 1960), certif. den. 33 N. J. 386 (1960) Thus, the special and limited statutory jurisdiction of the Division cannot here be inflated. DeAsio, supra, 62 N. J. Super. at 236. Beese v. First National Stores, 52 N. J. 196 (1968) is inapposite.

The Workmen’s Compensation Act contains no provision similar to N. J. S. A. 2A:14-21, which tolls the statutes of limitations applicable to certain specific actions at law during the period of plaintiff’s insanity. The desirability of including a similar provision in our Compensation Act is for the Legislature to decide.

Petitioner’s claim of fraud is without support in the record and in any event is without merit.

Affirmed.


author: Consodine, J. S. C.

text:
    WILLIE HUNTLEY, PLAINTIFF, v. PATRICIA HUNTLEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 21, 1972.

      Mr. Louis M. Minotti for plaintiff.

      Mr. Herman Blank for defendant.
   Consodine, J. S. C.

Plaintiff charges his wife with adultery in a case filed a fortnight after the amendments to our Divorce Law became effective. Defendant denies. The facts disclose that the parties were married in 1964; that four years later plaintiff married another, who thereafter bore him three children; that a year later plaintiff secured a fraudulent North Carolina ex parte divorce from defendant without her knowledge until trial in this case; that in this case plaintiff sought by perjury to defraud our courts into granting him a divorce.

Defendant raises the defense of recrimination and calls on the court to invoke the doctrine of unclean hands. N. J. S. A. 2A:34-7 abolishes both as defenses to a divorce action.

Defendant argues that she had the defense of recrimination for several years prior to the filing of this suit; that this defense had become vested as such, and that she cannot be divested of it by legislation abridging the equity jurisdiction of this court. In Davis v. Wechsler, 263 U. S. 22, 25, 44 S. Ct. 13, 68 L. Ed. 143 (1923), Justice Holmes wrote for a unanimous court that a defense which was good when it vested cannot be invalidated by subsequent legislation. See also Young v. Young, 94 N. J. Eq. 155 (E. & A. 1922); Pennsylvania Greyhound Lines, Inc., v. Rosenthal, 14 N. J. 372 (1954).

Our amendatory legislation, supra, cannot deprive defendant of her vested right to the defense of recrimination.

While the pertinent amendment prevents the parties from raising the defenses of recrimination, condonation and unclean hands, the legislation cannot impair the inherent and inherited jurisdiction of the Chancery Court.

Unclean hands as a defense here is applied by the court to plaintiff on the facts before it so as to prevent a party guilty of bigamy, adulter, perjury and frauds on the courts of the States of North Carolina and New Jersey from using a court of conscience to secure absolution for his misdeeds.

A court of equity acts only when and as conscience commands, and if plaintiff’s conduct is offensive to the dictates of natural justice, then whatever the rights possessed, plaintiff will be held remediless in a court of equity. Deweese v. Reinhard, 165 U. S. 386, 390, 17 S. Ct. 340, 41 L. Ed. 757 (1897). See also Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 814-815, 65 S. Ct. 993, 89 L. Ed. 1381 (1945); Woodward v. Woodward, 41 N. J. Eq. 224 (Ch. 1914).

And generally, see N. J. Constitution (1947), Art. VI, § III, par. 2, and Art. XI, § I, par. 3 and § IV, par. 3, N. J. Constitution (1844), Art. 10, § 1; Penn. R. R. Co. v. National Docks Ry. Co., 54 N. J. Eq. 647, 652 (E. & A. 1896); Flanigan v. Guggenheim Smelting Co., 63 N. J. L. 647, 651 (E. & A. 1899); In re Hague, 104 N. J. Eq. 31, 36 (Ch. 1929), aff’d 104 N. J. Eq. 369 (E. & A. 1929); In re Appointment of Vice Chancellors, 105 N. J. Eq. 759 (Ch. 1930); Phelps Dodge, etc., Corp. v. United, etc., of America, 138 N. J. Eq. 3, 8, 9 (Ch. 1946); Westinghouse Electric Corp. v. United Electrical, etc., 139 N. J. Eq. 97, 107 (E. & A. 1946); In re Caruba, 140 N. J. Eq. 563, 564 (E. & A. 1947), aff’g 139 N. J. Eq. 404, 426 (Ch. 1947); N. J. S. A. 2A:34-1(f).

Motion to dismiss the complaint granted.


author: Bilder, J. S. C.

text:
    CATHERINE BELLINO, FRANK BELLINO AND LOUISE FREEMAN, PLAINTIFFS, v. JUNE D. STRELECKI, DIRECTOR OF MOTOR VEHICLES OF NEW JERSEY, AND ANTHONY ANZALONE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 23, 1972.

      Mr. Francis Sorin, attorney for plaintiffs.

      Mr. Irwin L. Facher for defendants (Messrs. Zucker, Lowenstein, Gurny and Zucker, attorneys).
   Bilder, J. S. C.

The issue raised here is whether R. 4:42-11(b), providing for interest on tort judgments, applies to the Unsatisfied Claim and Judgment Fund.

The subject rule is mandatory in nature and provides in tort actions that the court shall include in the judgment interest at 6% a year from the date of the institution of the suit or six months after the accident, whichever is later. The rule is mandatory in its terms and is part of a continuing effort by our Supreme Court to ameliorate the court congestion.

The instant case grows out of an automobile accident which occurred on January 18, 1969. While stopped in traffic for a red light, plaintiffs’ automobile was struck from behind. Neither of the plaintiffs, the driver and her passenger, had any warning of the accident before the impact, and by the time they recovered from the initial shock the motor vehicle which had struck them had left. Neither could identify or describe in any way the vehicle which struck them.

The police report made by the investigating officer listed a second vehicle involved as a tan-colored Oldsmobile, bearing New Jersey License No. IVH-117. Out of an abundance of caution, plaintiffs’ attorney joined the owner of the vehicle registered under New Jersey License No. IVH-117, together with the Director of Motor Vehicles with respect to each claim. This, as it turned out, was prudent because defendant Anzalone was uninsured. Under the circumstances, therefore, the real party in interest was the same, i. e., the Fund. For reasons of its own, the Fund did not cause any appearance to be made on behalf of Anzalone and a default was entered.

When ihe case came on for trial it was bifurcated and tried without a jury as to liability only. In that non jury ease it was found that there was an unknown and unidentified car and that the driver of the unknown and unidentified car negligently and proximately caused the accident. Thereby the liability of the defendant Director of Motor Vehicles was established and an order of dismissal was entered with respect to Anzalone.

Thereafter, the matter of damages was tried before a jury, which returned judgments for the driver and for the passenger in ihe sum of $1,500 each. Thereupon, the court entered judgments for each in the sum of $1,500, together with interest at 6% from July 30, 1969. That date was chosen because the complaint was filed on July 30, 1969, some short time after six months following the accident.

This matter comes before the court on a motion by the Director of Motor Vehicles to delete so much of the judgment as awards interest pursuant to R. 4:42-11(b). More specifically, it is the defendant’s contention that the subject rule does not apply to the Fund. Basic to Ms position is his contention that the statutory provisions with respect to the Unsatisfied Claim and Judgment Fund, N. J. S. A. 39:6—61 et seq., make no provision for the allowance of such interest. As authority for that position he relies upon Lynch v. Heymann, 119 N. J. Super. 151 (Law Div. 1972).

The court in Lynch followed an opinion by Judge Kolovsky in which he held that interest on a judgment against the Fund would run from the date of the order requiring the Fund to pay rather than from the date of the judgment against the uninsured driver. Lindsay v. Boles, 61 N. J. Super. 516 (Law Div. 1960). Judge Kolovsky’s opinion in that case was a very well reasoned and persuasive one with respect to the issue there presented. He was not dealing with the evil with which we are herein concerned; i. e., the calendar congestion which could be ameliorated by the prompt settlement of cases.

The very question which is before this court has been decided by our Supreme Court. In Crudup v. Marrero, 57 N. J. 353 (1971), it was held that R. 4:58-1 et seq., the “Offer of Judgment” rule, applies to the Unsatisfied Claim and Judgment Fund and that it was error for the Law Division to deny plaintiff's request that the Fund be required to pay reasonable counsel fees and interest on the judgment. All the arguments made by the Fund with respect to R. 4:42-11(b) are more than adequately covered by the Supreme Court in that opinion and it would be pedantic for this court to repeat what has already been so ably set forth there. The arguments made by the Fund are essentially those set forth in the dissent and rejected by the majority. It might indeed be noted that the precedent relied on in Lynch was similarly cited in the dissent in Crudup, supra at 366.