text:
    MARY SESSELMAN AND PATRICK SESSELMAN, HER HUSBAND, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. MUHLENBERG HOSPITAL, DEFENDANT, AND DR. CHARLES HELY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 22, 1973
    Decided June 22, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. Richard R. Brennan argued the cause for defendant-appellant (Messrs. Shanley & Fisher, attorneys; Mr. James T. Glare of counsel).

      Mr. Bertram Siegel argued the cause for plaintiffs-respondents (Messrs. Walsh & Siegel, attorneys).
   Per Curiam.

In this medical malpractice action plaintiffs had judgment entered in their favor on a jury verdict against defendants Dr. Hely and Muhlenberg Hospital.

The jury assessed damages in favor of plaintiff Mary in the sum of $55,000 for personal injury damages, and plaintiff Patrick per quod in the sum of $3,500. Defendant Ilely thereupon moved (1) to enter judgment in his favor notwithstanding the verdict, (2) for a new trial on all issues, (3) for a new trial on damages on the grounds that they were excessive and against the weight of the evidence, and (4) for a remiUitur of the damages. The motion for a remittitur was granted — Mary’s award being reduced from $55,000 to $40,000 and Patrick’s from $3,500 to $3,000.

Defendant Hely’s other motions were denied and he appeals, urging a variety of trial errors and further that the damages as remitted are excessive.

The record reflects this essential factual background —■

Plaintiff Mary engaged defendant Dr. Hely, a licensed physician and specialist in obstetrics and gynecology, for prenatal care on June 11, 1968. On December 22, 1968 Mary was admitted to Muhlenberg Hospital for the delivery of her baby. Prior to the actual delivery of the child, anesthesia was administered by a certified registered nurse anesthetist, one Mrs. Brownbaeh, an employee of Muhlenberg Hospital. Mrs. Brownbaeh was qualified as an anesthetist, having received special graduate instruction in that art and training. Nurse anesthetists were employed by the hospital rather than physician anesthesiologists since they were available 24 hours a day and since the time of delivery of babies cquld not be predicted or scheduled in advance.

The administration of the anesthesia involved the insertion of an airway into plaintiff’s mouth. In addition to the airway, a catheter was inserted into her mouth through the airway and into her throat. The record contains facts and disputed inferences as to the actual manner in which plaintiff suffered her injury. In any event, it is clear that during the course of delivery she suffered damage to her teeth and mouth as a result of the administration of the anesthesia.

Pair inferences for jury consideration as to the causative factors in the damage to plaintiff’s mouth were that she either had her mouth struck by a metal device during the course of the administration of anesthesia or that she bit down on an unprotected metal device while vomiting, the result of a foreseeable laryngospasm. Either version, which the jury might fairly infer was a proximate cause of the injury, could very properly be found to have been culpable negligence on the part of the anesthetist, Mrs. Brownbaeh. (It was also alleged to have been negligence- on the part of Dr. Hely in failing to advise Mrs. Brownbaeh that plaintiff Mary had eaten, therefore, rendering likely the possibility of vomiting, and thus misleading Mrs. Brownbaeh in her choice of anesthesia.)

Plaintiff’s medical expert, one Dr. Heller, testified in response to a question as to the manner in which defendant Dr. Hely deviated from standard medical practice:

In just about every area which is involved, since Dr. Sely is, first of all, in charge of the entire procedure in the delivery room, anything that goes wrong is his responsibility whether he had done it or whether one of his subordinates has done it. [Emphasis added]

In its instructions to the jury the court properly instructed them on the question of Muhlenberg’s liability as follows :

Defendant hospital admitted that Mary Brownbach, the certified registered nurse anesthetist, was employed by the hospital. Evidence indicates also that Nurse Brownbach was assigned by the hospital to administer anesthesia to Mrs. Sesselman in connection with the birth of her child. Under these circumstances the hospital was legally responsible for any negligence of nurse Brownbach. * * s-'

The court’s instructions also included an instruction on Dr. Ilely’s liability for negligence on the part of nurse Brownbach.

The extent of Dr. Hely’s personal duty to supervise the control of the assisting nurses, including the nurse anesthetist, and, therefore, the extent of his legal responsibility and any negligent conduct of the nurses is governed by the established practice in the profession. * * * [Emphasis added]

We are satisfied that the testimony of Dr. Heller and the court’s instructions on the vicarious liability of Dr. Hely for negligent conduct on the part of the anesthetist Brownbach was prejudiciously erroneous and had a clear capacity to mislead the jury on that issue. A court’s instruction may not impose upon a defendant a duty where none exists in law. Kulas v. Public Service Elec, and Gas Co., 41 N. J. 311, 320 (1964); Guzzi v. Jersey Central Power & Light Co., 12 N. J. 251, 260 (1953) ; Isherwood v. Douglas, 34 N. J. Super. 533, 541 (App. Div. 1955).

Dr. Holler’s testimony opining as to Dr. Hely’s responsibility was inappropriately received into evidence. A medical expert testifying in a malpractice case is limited to the recitation of his understanding as to what comprises the standards in the profession, rather than a statement as to his feelings as to what are legal bases for a physician’s responsibility. An expert witness should distinguish between what he knows as an expert and what he may believe as a layman. It is not his function to instruct as to the law or to be the ultimate trier of the facts which is a role of the judge and jury respectively. The fact trier may be misled if an expert goes beyond that which he can contribute as an expert. In re Hyett, 61 N. J. 518, 531 (1972); Biro v. Prudential Ins. Co. of America, 110 N. J. Super. 391 (App. Div. 1970), rev’d 57 N. J. 204 (1970).

We are satisfied, as was Chief Justice Weintraub in Hyett, that “It is not unlikely that the jury was thus misled in this case.” 61 N. J. at 531. The court here improperly instructed the jury that Dr. Hely might be found negligent for the conduct of Mrs. Brownbach in the administration of the anesthesia. She was the employee of the Muhlenberg Hospital. We have expressly rejected the “captain of the ship” doctrine as recognized in other jurisdictions. See McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243 (Sup. Ct. 1949); McKinney v. Tromly, 386 S. W. 2d 564, 12 A. L. R. 3d 1011 (Tex. Civ. App. 1964).

Mrs. Brownbach did not become the legal servant or agent of defendant Hely merely because she received instructions from him as to the work to be performed. Tramutola v. Bortone, 63 N. J. 9 (1973); Martin v. Perth Amboy General Hospital, 104 N. J. Super. 335, 348 (App. Div. 1969); Viggiano v. Reppenhagen, Inc., 55 N. J. Super 114, 119 (App. Div. 1959). During the administration of the anesthesia and the dynamics of the childbirth we find nothing in the record whereby we can fairly say that defendant Dr. Iiely undertook to exercise control over nurse Brownbach’s activities to warrant removing him from the. general rule.

The error in the charge and in the admission of evidence which we have discussed mandate a reversal and a grant of a new trial at which the jury will be limited to a consideration of whether Dr. Hely himself was negligent, and it will not be permitted to find him vicariously liable for the conduct of the anesthetist.

It therefore becomes unnecessary to deal with the other issues argued by appellant, other than to note that (1) the damage award of $40,000 as remitted appears manifestly excessive, and (2) a review of the other points of appeal raised by defendant Ilely demonstrates them to be without sufficient merit to warrant discussion.

Accordingly, plaintiffs’ judgment against defendant Hely is reversed and the matter is remanded to the trial court for a new trial on all issues.

Reversed.

      Muhlenberg Hospital does not appeal, having settled plaintiff’s claims after the jury verdict for the sum of $9,750 on the assumption that it was satisfying its total exposure, by statute, of $10,000, presumably as a charitable institution. N. J. S. A. 2A:53A-8; Winters v. Jersey City, 63 N. J. 7 (3973). Plaintiffs’ cross-appeal from the remittitur has been abandoned.


source: Caselaw Access Project

author: Mintz, J. A. D.

license: Public Domain

text:
    JERSEY CITY REDEVELOPMENT AGENCY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. GEORGE A. WEISENFELD AND ANNE WEISENFELD, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1973
    Decided June 6, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Henry J. Wilewski argued the cause for appellant (Messrs. Krieger and Chodash, attorneys).

      Mr. Norman H. Roth argued the cause for respondents (Mesrs. Davis and Roth, attorneys).
   The opinion of the court was delivered by

Mintz, J. A. D.

In this condemnation non-jury proceeding the trial judge awarded defendants the sum of $150,334 as the fair market value of the subject property, taken by plaintiff condemning authority.

The subject property is in the Paulus Hook Hrban Eenewal Area which was declared blighted on April 1, 1969.

The trial judge found that the property, a vacant lot, comprised 34,559.7 square feet.

At the oral argument counsel for defendants represented that the property was acquired through a contract in 1965 by a corporation, solely owned by defendants, for $29,375, and subsequently conveyed by that corporation to defendants. Concededly, the acquisition was a “good buy.”

On April 23, 1969 defendant George A. Weisenfeld leased the lot to Parking Authority of the City of Jersey City at an annual rental of one dollar. The tenant was required to pay the real estate taxes and convert the demised premises into a parking lot. The landlord reserved the right to terminate the lease upon certain conditions.

Subsequent to the oral argument plaintiff filed an affidavit wherein it appears that the lot was paved by the Parking Authority at a cost of $10,586. It was opened for business in May 1970 as a metered parking lot.

The parties stipulated that on January 16, 1968 defendant George A. Weisenfeld entered into an arms-length contract for the sale of the property. Title did not pass because of a subsurface easement to PATH. Since this easement would affect the cost of construction of any building erected by the purchaser, the latter would not accept the title. The unconsummated contract was terminated on September 15, 1969.

At the rehearing of this cause before the trial judge the contract for the sale of the property for $80,000 was introduced into evidence.

William Eobertson, Jr., an expert witness for plaintiff, using comparable, sales, valued the property at $66,000 based upon an inaccurate estimate of land area of 28,400 square feet. Joseph Cooney, plaintiff’s second expert, using comparable sales, appraised the subject property at $74,500. Sol Gorlin, defendant’s expert, valued the property at $203,300 on a capitalization of income approach, based upon the use of the property as a parking lot; and at $202,000 on a comparable sales basis.

The rehearing was granted on the basis of plaintiff’s subsequently acquired knowledge of the. unconsummated contract for the sale of the property for $80,000. The trial judge reaffirmed his earlier finding that $150,334 represented the fair market value for the subject premises. He referred to the fact that all three experts agreed that the unconsummated contract was not indicative of fair market value. Gorlin stated that he knew of the contract and it did not influence his opinion since he considered the highest and best use of the property was for a parking lot.

Apparently the experts, as well as the trial judge, overlooked the fact that the contract was not consummated because of a title defect. In our judgment, in the absence of a completed sale evidence of the price agreed upon in a binding contract of sale for property between the owner and a purchaser, both acting in good faith, would be of significance in arriving at the fair market value of the property, East Orange v. Crawford, 78 N. J. Super. 239 (Law Div. 1963), with due allowance made for any change in value, if any, from the date of the contract until the declaration of taking.

The trial judge recognized that he was confronted with a great disparity in evaluations, leaving the arbiter in the unenviable position of trying to decide where the truth lies.” In this condition of the evidence the trial court in its discretion may take the initiative towards apprising itself of the findings and opinion of an independent expert in “a quest for the elusive truth of the matter.” State v. Lanza, 74 N. J. Super. 362, 374 (App. Div. 1962), aff’d 39 N. J. 595 (1963), app. dism. 375 U. S. 451, 84 S. Ct. 525, 11 L. Ed. 2d 477 (1964).

The trial judge afforded no significance to the unconsummated contract. As already noted, this contract was terminated after the declaration of blight, when its potential use as a parking lot might have been recognized by the contract purchaser. Additionally, we find that in the stated circumstances the trial judge should have exercised his discretion and appointed a neutral expert to evaluate the property and testify as to its fair market value.

We reverse and remand the proceeding for a retrial before a trial judge other than the judge before whom the matter was tried. The parties will be allowed 20 days from the date of this opinion to agree upon a neutral expert. Should the parties fail to agree upon a neutral expert, the assignment judge should be immediately notified, and the trial judge to whom this matter will be referred for retrial, without a jury, shall forthwith proceed to select a neutral expert. The expert’s charge for the appraisal and testimony will be fixed by the trial judge and paid by either or both of the parties in accordance with the trial judge’s determination at the conclusion of the proceeding.


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

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT, v. ISADORE D. ORENSTEIN, ET AL., DEFENDANTS-RESPONDENTS, AND RAMY REALTY, INC., A CORPORATION OF NEW JERSEY, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 6, 1973
    Reargued May 15, 1973
    Decided June 19, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. G. Frederick Blazure, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Alfred L. Nardelli, Deputy Attorney General, of counsel).

      Mr. Nicholas Martini argued the cause for respondents Orenstein and intervenor-respondent Ramy Realty, Inc. (Mr. Sam Weiss, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Plaintiff appeals from the judgment entered on a jury verdict after trial of an appeal from an award made by condemnation commissioners. As recited in the judgment, the jury found that defendants Orenstein were entitled to $71,000 “for the lands taken by” plaintiff and the “damages resulting from such taking to the remaining [Orenstein] property,” and that the intervening-defendant, Eamy Eealty, Inc., was entitled to $25,000 “for the decrease in the value of the Eamy Eealty, Inc. property as a result of the taking.”

The complaint, filed by plaintiff in the exercise of its power of eminent domain, sought to obtain title in fee simple to a specifically described part of a tract owned by defendant Tsadore D. Orenstein and other property rights in the remaining part of the Orenstein tract. It prayed the appointment of commissioners “to fix the compensation to be paid for the taking of the lands and premises hereinbefore described, including the damages, if any resulting from the taking, to any remaining property.”

Consistent with “substantive due process,” Housing Authority, Atlantic City v. Atlantic City Expo., 62 N. J. 322, 328 (1973), the description in the complaint of the lands and property rights to be taken was definite and certain. The description embraced an area of about 9,765 square feet as well as slope rights and the right to construct and maintain a subsurface drain and appurtenances in Orenstein’s remaining lands, all as delineated on an attached map. Further, the proposed taking included, with a stated exception, “the owner’s right of direct access to and from the Freeway.” The description embodied in the complaint was — and should have been treated by the trial court to be — of controlling significance since it is settled, as stated in State v. New Jersey Zinc Co., 40 N. J. 560 (1963), that:

[T]he only issue to be determined by the commissioners and by the fact finder in event of appeal is the lump sum compensation to be paid by the condemnor, ’h * * plus any damages to the remaining property of the owner if the taking is only a part thereof * *■ *. [at 573, emphasis added]

Fundamental fairness and the governing statute mandate that the factfinder be limited to that one issue since the condemnor will obtain, by virtue of the condemnation proceedings, title only to the land and property rights described in the complaint. N. J. S. A. 20:1-12 (now repealed), N. J. 8. A. 20:3-6 and N. J. 8. A. 20:3-19; Housing Authority, Atlantic City v. Atlantic City Expo., supra; Vail v. Morris & Essex R. R. Co., 21 N. J. L. 189, 196 (Sup. Ct. 1847); Winter v. Telephone Co., 51 N. J. L. 83, 84-85 (Sup. Ct. 1888); State v. Applegate, 107 N. J. Super. 159 (App. Div. 1969); cf. Northern R. R. Co. v. Demarest, 94 N. J. L. 68 (Sup. Ct. 1919).

If there are any issues to be decided other than that of value and damages —• be they a challenge to the plaintiff’s right to exercise the power of eminent domain or a claim that the condemnor is in fact taking more property and rights than those described in the complaint —• those issues must be presented to and decided by the court before it enters judgment appointing condemnation commissioners. State v. New Jersey Zinc Co., supra, 40 N. J. at 572; N. J. S. A. 20 :1-2 (now repealed); N. J. S. A. 20:3-5 and 11; see also, State v. Applegate, supra.

In view of these settled rules, it was error for the trial court, over the objection of-plaintiff:

(1) To permit defendant Orenstein and a surveyor called by him to testify that plaintiff’s taking included, in- addition to what was described in the complaint, a right of way easement appurtenant to the Orenstein property over lands to the south which had been owned by one Preiskel, the easement area embracing a parcel of land, adjacent to the Orenstein property, 24.24 feet wide and 100 feet deep, extending from the easterly side of River Drive to the Passaic River, as well as an adjacent area to the south fronting 40 feet on Passaic Biver and running approximately 34 feet deep.

(2) To charge the jurors that if they found “that Orenstein suffered damages by the result of the taking away of [the easement over the Preiskel property] or by anything that the State did that destroyed that easement, [they] should award damages as a result thereof and in accordance with the testimony before [them].”

It was not for the jury to determine whether or not the State’s taking also included the alleged Orenstein easement over the Preiskel property. (The easement was created in the deed dated March 11, 1958 by which Preiskel conveyed to Mr. Orenstein the property now owned by him.) Orenstein’s contention that the taking did include that easement should have been presented to the court before the entry of the judgment appointing commissioners. If the court, after a trial without a jury, O’Neill v. State Highway Dept., 40 N. J. 326, 329 (1963), found in Orenstein's favor, it would have been called upon to enter an order directing plaintiff to amend the complaint to include the easement in the description of the land and property rights being condemned. Only if that had been done would it have been proper for the court to tell the jury that they should consider the value of the easement over the Preiskel property in determining the compensation to which Orenstein was entitled.

The court should not have permitted the issue of the alleged taking of the easement over the Preiskel property to be interjected into the case at a jury trial which was concerned only with the admeasurement of damage.

(The prejudicial effect of the error is compounded here because it now appears — although the attorney who represented the State at the jury trial in December 1971 was unaware thereof — that in June 1-967, when Preiskel conveyed a portion of his property, including most of the aforementioned easement area, to the State, Mr. Orenstein had by deed dated June 9, 1967 also conveyed to the State “all right, title and interest that [he might] have by reason of a perpetual easement for a driveway etc. over a portion of [the tract conveyed by Preiskel to the State] granted” in the deed from Preiskel to Orenstein dated March 12, 1958.)

It is therefore apparent that the judgment, insofar as Orenstein is concerned, must be reversed and the cause remanded to the trial court. The court should determine before entry of a new judgment appointing condemnation commissioners whether any property rights of Orenstein other than those described in the complaint have been taken by the plaintiff, not by deed but by condemnation.

We turn now to a consideration of the award made to Ramy Realty, Inc. (Ramy), the owner of lands adjoining the Orenstein property on the north.

While the matter was pending before the condemnation commissioners theretofore appointed, Orenstein filed a motion seeking, alternatively, an order compelling plaintiff to file an amended complaint adding Ramy, a corporation controlled by Orenstein, as a party defendant, or an order permitting Ramy to intervene. In the moving papers it was contended that Ramy’s property had been deprived of an access easement over the Orenstein property by reason of plaintiff’s taking of part of that property, and that Ramy was entitled to compensation by reason of the destruction of its alleged easement.

The court, over plaintiff’s objection, entered an order granting Ramy leave to intervene as a party defendant and

to seek a determination in these proceedings before the condemnation commissioners as well as the Superior Court and jury in the event of an appeal as to whether there is a taking within the contemplation of law as to the buildings and lands owned by Ramy Realty, Inc. and if so, of the damages if any, sustained by the lands and premises of said Ramy Realty, Inc. and seeking an award for such damages as may be determined herein in addition to any damages or awards which may be awarded and made to the defendants, Isadore D. Orenstein and Ray Orenstein, his wife.

The court erred in entering the order. It was not the function of either the condemnation commissioners or the jury to decide what property had been taken. Their function was limited to a determination of the compensation to be made for the takings described in the complaint.

The question whether there had been a “taking” was one for resolution by the court, after a trial before it without a jury, O’Neill v. State Highway Dept., supra, in proceedings in lieu of the prerogative writ of mandamus to be instituted by Ramy. In such a proceeding the court would make a factual finding as to whether or not the Ramy property included, as an appurtenance thereto, an access easement over the Orenstein property.

If the court found that the asserted access easement did exist, then — since it is uncontradicted that the construction of a road over the servient estate, the Orenstein property, destroyed the alleged easement — the court would be obligated to rule that there had been a taking of an interest in, or a property right attached to, the Ramy tract for which Ramy is entitled to be compensated. Mueller v. N. J. Highway Authority, 59 N. J. Super. 583, 589-590 (App. Div. 1960); Tubular Service Corp. v. Comm’r, State Highway Dept., 77 N. J. Super. 556, 562 (App. Div. 1963), aff’d o.b. 40 N. J. 331 (1963). In such event, the court would enter a judgment ordering the State to institute proceedings to condemn and pay compensation for the property rights so taken. Cf. Haven Homes v. Raritan Tp., 19 N. J. 239, 241 (1955); O’Neill v. State Highway Dept., supra.

If such a judgment were entered, the State would be required either to file a separate complaint against Ramy for condemnation of its access easement or, alternatively, to amend the complaint in the Orenstein action by adding a second count against Ramy embodying a description of the access easement taken. The joinder would be permissible, cf. N. J. S. A. 20 :3-7, but there still would have to be a separate award as to each count. N. J. Turnpike Auth. v. Jersey City, 36 N. J. 332, 336 (1962).

We therefore conclude that the judgment in favor of Ramy must be reversed and the cause remanded to the trial court for further proceedings consistent with this, opinion.

For the guidance of the trial court, we add that we do not agree with plaintiff’s contention that even if Ramy establishes the existence and later destruction of its alleged access easement, still it would not be entitled to a separate award therefor and would be limited to seeking its compensation out of the lump sum awarded with respect to the Orenstein property. State v. New Jersey Zinc Co., 40 N. J. 560, 574 (1963), and Herr v. Board of Education, 82 N. J. L. 610, 613 (E. & A. 1911), on which plaintiff relies, are clearly distinguishable. Those cases would be pertinent if the taking of the access easement were a taking of part of the Orenstein property. In fact it was not, for when — and if — the easement was created, it was “carved out” of the Orenstein property and became part of the dominant estate, the Ramy property, so that a taking thereof constituted a. taking of property rights in the Ramy property for which compensation must separately be made. Jahr, Eminent Domain, Valuation and Procedure, § 160 at 251 (1953); United States v. Welch, 217 U. S. 333, 30 S. Ct. 527, 54 L. Ed. 787 (1910); see also, Metropolitan Life Ins. Co. v. McGurk, 119 N. J. L. 517, 518 (E. & A. 1937); Ehren Realty Co. v. Magna Charta B. & L. Ass’n, 120 N. J. Eq. 136 (Ch. 1936).

The rule is thus expressed in Jahr, supra:

If land burdened with an easement is taken by eminent domain, the owner’s measure of damage is the market value of the land as affected by the easement. The easement itself attaches to the land of the owner of the dominant fee and is appurtenant to his land, and must be valued with reference to it and not as though the easement constituted a separate entity. The owner of the dominant estate must be compensated for the value of the easement taken from him and the measure of damage is the difference in the market value of the dominant estate with the easement and its value without the easement.

Reversed and remanded.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT LAND, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided June 20, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Ms. Paula G. Roberts argued the cause for the appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

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

After indictment defendant was found guilty by a jury of murder in the first degree. He was sentenced to life imprisonment in accordance with N. J. 8. A. 2A:113-3 which, as now construed, under State v. Funicello, 60 N. J. 60 (1972), mandates such a penalty for first degree murder.

Defendant’s plight stems from his participation in a murder-stabbing incident with robbery overtones.

The main thrust of defendant’s argument on this appeal is directed toward the constitutional validity of his sentence. He contends that the penalty provisions of present New Jersey statutes governing murder impose an impermissible burden on an accused’s exercise of his right not to incriminate himself under the Fifth Amendment and his Sixth Amendment right to a jury trial. Accordingly, he seeks a remand for reconsideration of sentence. In fine, he says that under a first degree murder charge, a defendant has two plea choices with correspondingly different sentence exposures. If he pleads not guilty and takes his, chance with a jury, a conviction mandates life imprisonment. N. J. S. A. 2A:113-4. If he pleads non vult, thus relinquishing his right against self-incrimination and to be tried by a jury, he may, in the sentencing judge’s discretion, be sentenced to a term for years or life. N. J. 8. A. 2A :113-3. Thus, he says, the same burden or attraction, albeit to a lesser degree, as that which existed prior to United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) and one, of its progeny, State v. Funicello, supra, continues to plague one accused of murder in the first degree. The question, stated another way, is — Does N. J. S. A. 2A:113-4 (mandatory life sentence upon conviction for first degree murder) and N. J. 8. A. 2A:113-3 (a sentence range for a term for years, with the possiblity of immediate probation, to life upon a non vult plea) still embrace the evil of a needless encouragement of guilty pleas? United States v. Jackson, supra, 390 U. S. at 583, 88 S. Ct. 1209. We believe not.

Before we detail our reasons, however, we deal with the threshold question of whether defendant has the requisite standing to raise his main question in light of his actually pleading not guilty and being tried by a jury. Until the New Jersey Supreme Court, on remand, modified the defendant’s sentence to life imprisonment in State v. Funicello, supra, it would appear that appellant would not have had the requisite standing to raise the question here posed, State v. Sullivan, 43 N. J. 209, 247 (1964), cert. den. 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966); State v. Reynolds, 43 N. J. 597, 603 (1965); State v. Forcella, 52 N. J. 263, 284 (1968), rev’d and rem. sub nom. Funicello v. State, 403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971), reh. den. 404 U. S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971), appeal after remand 60 N. J. 60 (1972), cert. den. sub nom. New Jersey v. Presha, 408 U. S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). By virtue of the Funicello remand and resentencing we must conclude, however, that the United States Supreme Court accorded standing to the defendant there involved to raise his challenge on constitutional grounds and within a framework identical to those here present. Accordingly, we can do no less and therefore hold that defendant has standing to raise the question of his Fifth and Sixth Amendment rights despite not having incriminated himself or waiving a jury trial.

As regards the validity of the sentence imposed in light of the interdiction of the Fifth and Sixth Amendment, we conclude that Jackson is distinguishable. State v. Hubbard, 123 N. J. Super. 345 (App. Div. 1973). We do not perceive in the present case the type of “needless encouragement of guilty pleas’ to the degree referred to in Jaclcson. Had defendant waived his right to a jury trial and pleaded non vult, he would still have been exposed to a life sentence, albeit within the discretion of the judge. N. J. S. A. 2A:113-3. We, therefore, determine that a remand and resentencing is not justified.

Lastly, defendant contends that there was error in the court’s charge on “flight.” We have carefully examined the record, and in particular the charge, and find this contention to be without merit.

Affirmed.

        Jackson held that the Federal Kidnapping Act, 18 U. S. C. A. § 1201, making kidnapping punishable by death if the jury so recommended, while eliminating the death penalty if the defendant pleaded guilty or waived his right to a jury, placed an impermissible burden on the exercise of both Fifth and Sixth Amendment rights. As a consequence, State v. Funicello, supra, was remanded to the New Jersey Supreme Court which, in turn, eliminated the death penalty from our murder statutes but ruled that all pleas to an indictment for murder should continue to be governed by N. J. S. A. 2A:113-3.


text:
    WILLIAM ENGEL, PLAINTIFF-RESPONDENT, v. TOWNSHIP OF WOODBRIDGE AND JOSEPH F. McLAUGHLIN, CHIEF OF POLICE OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided June 21, 1978.
    Before Judges Carton, Mintz and Seidman.

      Mr. Robert F. Dato argued the cause for defendants-appellants.

      Mr. Thomas J. Savage argued the cause for plaintiff-respondent (Messrs. Dugan, Tucker and Savage, attorneys).

      Mr. Robert McCracken, Assistant Prosecutor, argued on behalf of amicus curiae Mr. John S. Kuhlthau, Middlesex County Prosecutor.
   Per Curiam.

The issue in this appeal is whether a police officer can be compelled by his superiors to submit to a polygraph test in connection with an investigation of a theft.

Plaintiff, a member of the Woodbridge Township police department, avers that in May 1972, based upon an anonymous letter, he was interrogated at police headquarters concerning his alleged involvement in the receiving of stolen ¡refrigerators. On June 7, 1972 he received the following «order from the chief of police:

'This communication is to officially advise you that as the result •of an internal Police Department investigation, you and others have ¡been implicated in an alleged theft of several refrigerators from the D. H. Overmyer Co. warehouse in Woodbridge Township. In light of information supplied to me by reliable sources and further considering other corroborating evidence, you are herein ordered to be present at 10:00 A.M. on June 15, 1972, for the purpose of your taking a polygraph examination.
This examination will exclusively concern itself with your alleged involvement or knowledge of involvement by others in the theft of ,lhe refrigerators.

Plaintiff then filed a complaint against the Township of Woodbridge and the chief of police, for injunctive relief and •obtained a temporary restraining order and an order directing defendants to show cause why the restraint “should not •be made permanent.” On the return day the trial judge ■granted “a preliminary injunction” on the ground that a ¡polygraph test was not deemed accurate or reliable, and on the further ground that “to compel Mr. Engel as a police officer to submit to a polygraph test is a violation of his rights under the United States and State Constitution against self-incrimination.” Apparently there was no plenary hearing.

Defendants appeal from the “Einal Judgment of the Court orally rendered on June 26, 1972.” However, presumably to formalize the decision, a signed order was filed on March 22, 1973. The parties do not question the procedure that was followed and they have elected to treat the order as a final judgment.

It was conceded at oral argument that plaintiff’s refusal to submit to the test would have led to his dismissal from the force.

The thrust of defendants’ argument is that a policeman must submit to a lie detector test when ordered to do so by his superiors if the questions to be asked relate directly to his police activities. Plaintiff counters by urging that (1) there is statutory authority against requiring an employee to take or submit to a lie detector test, (2) to- require an employee to submit to such test is a violation of his constitutional rights, and (3) the result of a polygraph examination is inadmissible as evidence and unreliable as an investigative aid.

We consider the last point argued irrelevant. See, however, State v. McDavitt, 62 N. J. 36 (1972). The constitutional question is more substantial; but we need not reach the issue of whether compelling a police officer to submit to a polygraph test on the facts here present would infringe upon his constitutional privilege against self-incrimination, or whether it would be a proper investigative procedure relevant to the police officer’s discharge of his official duties. See Gardner v. Broderick, 392 U. S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968).

We believe that N. J. S. A. 2A:170-90.1 supports plaintiff’s refusal to take the test. It provides:

Any person who as an employer shall influence, request or require an employee to take or submit to a lie detector test as a condition of employment or continued employment, is a disorderly person.

The statute sets forth the present public policy of this State on the subject. Although we have found no reported ease in which it has been subjected to appellate review, we are convinced the statute is applicable here and bars defendants from compelling plaintiff to submit to a polygraph test, particularly in view of the concession that his refusal to do so would have led to his dismissal. It is unlawful for defendants, as plaintiff’s employer, to require him to take or submit to the test as a condition of continued employment. See State v. Community Distributors, Inc., 123 N. J. Super. 589 (Cty. Ct. 1973).

The fact that a police officer is involved here is immaterial. The statute contains no exclusions and the court has no power to create any. If the Legislature had intended to exempt employers of police officers it would have clearly so stated. Male v. Pompton Lakes Mun. Util. Auth., 105 N. J. 348, 358 (Ch. Div. 1969). See also Parking Auth. of Trenton v. Trenton, 40 N. J. 251, 257 (1963); State v. Community Distributors, Inc., supra.

The judgment is affirmed.


text:
    IN THE MATTER OF INVESTIGATION REGARDING RINGWOOD FACT FINDING COMMITTEE RE VIOLATION OF N. J. S. A. 19:34-38.1.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1973
    Decided June 22, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Joseph D. J. Gourley, Passaic County Prosecutor, argued the cause for appellant (Mr. Gary H. Schlyen, Assistant Prosecutor, of counsel).

      Mr. Steven E. Pollan, Deputy Attorney General, argued the cause for the State of New Jersey, Amicus Curiae (Mr. George P. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Martin F. Murphy argued the cause for respondent (Messrs. Johnson, Johnson and Murphy, attorneys).
   Per Curiam.

N. J. 8. A. 19:34r-62 and N. J. 8. A. 19: 34^63 delineate the duties of the prosecutor and the court with respect to complaints of violations of the election laws, said legislation establishing procedures distinct and at varianee with those customarily attendant upon the processing of criminal complaints generally.

Although a reading of N. J. 8. A. 19 :34r-Q3 reveals no express authorization for the court to order a prosecutor to submit to the grand jury the results of his investigation of a complaint involving an alleged violation of the election laws, the Legislature, however, did specifically give the court the power to grant or deny a motion to dismiss an election complaint. By necessary implication from such grant of-authority, the Legislature obviously intended to, and did in fact, vest the court with the correlative power to require the presentation of the matter to the grand jury.

Accordingly, the judgment of the Law Division directing the prosecutor to present the election complaint to the Passaic County grand jury is affirmed.

However, it has not been demonstrated that it is necessary that the citizens' retained attorney be in attendance at the presentation of this matter to the grand jury. Absent such request by the prosecutor or the grand jury, it is our view that said attorney is not entitled to and should not be permitted to be in attendance during the presentation of the case to the grand jury. Under no circumstances may said retained attorney be present during its deliberations. B. 3 :6-6.

Affirmed as modified.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY PERWIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 4, 1973
    Decided June 19, 1973.
    Before Judges Collester, Leonard and Halpern.

      Mesrs. Silverman, Bergstein & Walsh, attorneys for appellant (Mr. Richard Aloysius Walsh, on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. R. Benjamin Cohen, Assistant Prosecutor, of counsel; Mr. Peter N. Gilbreth, Legal Assistant, on the brief).
   Per Curiam.

Following a four-month jury trial defendant (Perwin) and three others were convicted of conspiracy to obtain money under false pretenses and defendant and one other were convicted of obtaining money under false pretenses. We affirmed. State v. Yormark, 117 N. J. Super. 315 (App. Div. 1971). Certification was denied, 60 N. J. 138 (1972), as was certiorari, 407 U. S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 812 (1972).

About 14 months subsequent to their convictions, defendant and Mulvaney moved for a new trial, based upon newly discovered evidence. Testimony was taken and the motion denied. Perwin appeals.

We affirm essentially for the reasons stated by the trial judge in his written opinion reported at 120 N. J. Super. 177 (Law Div. 1972).

Affirmed.


author: Kimmelman, J. S. C.

text:
    GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF, v. MARKET DEVELOPMENT CORPORATION, A FOREIGN CORPORATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Tried February 1, 1973
    Decided April 26, 1973.

      Mr. Richard W. Grieves, Deputy Attorney General for Plaintiff (Mr. George F. Kugler, Jr., Attorney General of New Jersey, Attorney).

      Mr. John A. Ridley (Crummy, O’Neill, DelDeo & Dolan, Esqs.) and Mr. Arnold Morelli of the Ohio bar admitted pro hac vice (Bauer, Morelli & Meyd, Esqs.) for defendant.
   Kimmelman, J. S. C.

The Attorney General of New Jersey has instituted this summary action in accordance with R. 4:67 and pursuant to the jurisdictional authority contained in N. J. 8. A. 56 :8-8 to enjoin the defendant Market Development Corporation (MDC) from alleged violations of the Consumer Fraud Act, N. J. 8. A. 56:8-l, et seq.

MDC, a foreign corporation, conducts a direct interstate mail solicitation of New Jersey residents consisting of a form of congratulatory letter which purports to advise the recipient that he is a “Sweepstakes prize winner” and that his winnings consist of “A GLAMOEOHS VACATION EOE TWO ADULTS” and a “TEEASURE CHEST CEAMMED PULL OP NATIONALLY ADVERTISED HOUSEHOLD AND COSMETICS PRODUCTS”. The- recipient is also advised that he must, within ten (10) days, notify MDC of his intention to accept his prizes for which he is obliged to pay a $15 “service charge”. Included with the notification letter is a bonus certificate- with an official numbered sweepstakes ticket and receipt attached, a descriptive flyer regarding the “prizes”, a registered gift certificate, and a return envelope addressed to defendant at Hollywood Building, Farmingdale, N. Y. 11735 or Cincinnati, Ohio 45224.

The aforementioned materials which collectively constitute the solicitation mailed to New Jersey residents by defendant contain various representations, expressed or by implication, including the following:

a) “. . . your lucky number has been computer selected as a Sweepstakes prize winner.”
b) “YOU ARE TO RECEIVE THE FOLLOWING PRIZES: A GLAMOROUS VACATION FOR TWO ADULTS . . .”
c) One of the “vacations” available is at Walt Disney world where lodging and access to numerous attractions will be provided. •
d) “. . . you will be our guest at the Hacienda located in the entertainment capítol (sic) of the world Las Vegas, Nevada.”
e) “. . . the total intrinsic value of your winnings amounts to approximately 8300.00.”
f) “You will definitely enjoy the vacation of a lifetime . . .”
g) “Unless I hear from you within the next 10 days ... I will be compelled to pass your winnings on to the next eligible contest winner.”
h) “This (Vacation) Certificate is given to you as an additional bonus . .
i) “. . . the Vacation Certificate is naturally the most valuable part of your Sweepstakes winnings.”
j) “FREE VACATION FOR TWO” (Bonus Certificate).
k) “OFFICIAL SWEEPSTAKES TICKET NO. 05988”; “YOUR OFFICIAL RECEIPT NO. 05988.”

The Attorney General contends that defendant’s advertising plan or scheme is on its face violative of N. J. 8. A. 56:8-2.3 and that the- implementation of such advertising plan or scheme in the State of New Jersey involves the use or employment of deception, fraud, misrepresentation and other practices declared unlawful by the Consumer Fraud Act, specifically N. J. S. A. 56:8 — 3.

A number of defenses are raised by MDC. Both the in personam and summary jurisdiction of ,the court are challenged as is the constitutionality of N. J. 8. A. 56:8-2.3.

Initially, the jurisdiction of the NTew Jersey courts over the defendant is beyond doubt. Direct mail solicitation of New Jersey residents is a sufficient warrant to sanction in personam jurisdiction without offending traditional notions of fair play and substantial justice. Schaffer v. Granit Hotel, Inc., 110 N. J. Super. 1 (App. Div. 1970).

Likewise the summary jurisdiction of this court is certain. N. J. S. A. 56 :8-8 authorizes the Attorney General to “seek and obtain in a summary action in the Superior Court an injunction” prohibiting violations of the Consumer Fraud Act. The very nature of the practices declared to be unlawful by the Legislature requires that an expeditious avenue of relief be afforded for the protection of the often unsuspecting and gullible consuming public. If otherwise, the delay attendant upon a plenary hearing would deprive the Attorney General of an essential tool in the arsenal of remedies made available to him by the Legislature. The collection of a statutory penalty is neither the sole nor main relief sought and therefore defendant’s argument that B. 4:67-1 (a) bars disposition of this action in a summary manner is rejected.

Additionally, there is no merit in defendant’s argument that the Seventh Amendment (IT. S. Constitution) guarantee of trial by jury in suits at common law where the value in controversy exceeds $20 mandates a plenary trial for this action. The present cause of action and right to seek redress are foreign to the common law, being modern day creations of the Legislature for the relief and cure of a current mischief. Kugler v. Banner Pontiac-Buick, Opel, Inc., 120 N. J. Super. 572, 582 (Ch. Div. 1972).

MDC’s main argument relates to the alleged unconstitutionality of N. J. S. A. 56:8-2.3. The contention is made that that section is vague and overbroad, there being no definition of “advertising plan or scheme”, no definition of “prize”, no definition of “sales promotion effort” and no delineation of what “act” a consumer is required to do in order to produce a violation of the law. N. J. S. A. 56:8-2.3 provides as follows:

“The notification to any person by any means, as part of an advertising plan or scheme, that he has won a prize and requiring him to do an act, parchase any other item or submit to a sales promotion effort is an unlawful practice and a violation of the act to which this act is a supplement.”

No doubt the language employed by the Legislature is sweeping, broad and all-encompassing. However the breadth and scope of an enactment furnish no reason for striking it down as long as the prohibited conduct can be fairly ascertained. There is a presumption of the constitutionality of a legislative enactment; a court must adopt that construction which will save rather than destroy and if necessary will strain to achieve that result. N. J. Sports and Exposition Authority v. McCrane, 119 N. J. Super. 457, 476 (L. Div. 1971) aff'd 61 N. J. 1 (1972). No such gymnastics are necessary here. Courts can always ascribe a plain common-sense meaning to the legislative language employed. The above-quoted objectional phrases are neither unique nor the work of an esoteric draftsman. That which constitutes an advertising plan or scheme and a sales promotion effort it easily understood. There is no doubt that the congratulatory letter sent to New Jersey residents advising the recipient that he is a “Sweepstakes prize winner” enclosing a flyer describing the prizes, requiring the recipient to signify his acceptance by remitting a $15 service charge in return for his “prizes” and exposing him to an offer to sell merchandise run afoul of the sweep of N. J. S. A. 56:8-2.3. It is no defense that the recipient receives value for his $15 remittance since neither fraud nor deception are essential ingredients proscribed by this section.

What is interdicted is the subjection of New Jersey residents to notification (usually by unsolicited mass mailings) that they have won a prize, which notification is part of an advertising plan or scheme and which requires the recipient to do an act or purchase an item or submit to a sales promotion effort. To bei sure, the definition of an “act” can be as broad as the human mind can imagine but within the context and scope of the Consumer Fraud Act the legislative intent was not that uncertain. Rather it was to ascribe to the word “act” the notion that the recipient is being called upon to do something however slight in relation to setting in motion the machinery which will deliver to him his “prize”. In order for a prize to be legitimate the Legislature intended that it be a pure gift and come to the recipient without strings attached. That which the recipient must do to unattach the “strings” is the. “act” contemplated by the statute.

Based upon the foregoing analysis the terms of the statute are not so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Connolly v. General Const. Co., 269 U. S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). Certainly in this case, the remittance of $15 required to be made by the recipient is as concrete and definite an act as one can imagine.

A detailed analysis of N. J. 8. A. 56:8-2 which the defendant likewise alleges to be unconstitutional is not required. Upon the same reasoning consonant with the rationale supporting the Consumer Fraud Act, I find that section to be constitutional. Finally, I find no merit in defendant’s contention that its First Amendment rights are abridged by the statute. United Advertising Corp. v. Borough of Raritan, 11 N. J. 144 (1952); Lynch v. Blount, 330 F. Supp. 689 (S. D. N. Y. 1971) aff’d 404 U. 8. 1007, 92 S. Ct. 673, 30 L. Ed. 2d 656 (1972).

The uncontroverted facts which I have recited at the beginning of this opinion warrant a finding of liability under Counts One and Two of the Complaint. It is unnecessary to make any finding relative to Count Three although my reaction to a “prize” of a free vacation more than a thousand miles distant in either Miami Beach or Las Vegas subject however to a small print reverse-side notation “Transportation not included” would be to regard such prize as a “deception” which is an unlawful practice prohibited by N. J. S. A. 56 :8-2.

Counsel for the plaintiff is directed to list this matter on formal notice before the court for the imposition of sanctions, damages and/or penalties.

NOTE: On June 15, 1973, by way of final judgment, the court imposed upon the defendant a penalty of $1,000 and ordered that defendant deposit the sum of $25,000 with the Attorney General in order that restitution be made by the Office of Consumer Protection to those prizewinners who make such request following statewide publication of notification of their right to do so.


text:
    COLUMBIA BROADCASTING SYSTEM, INC., ETC., PLAINTIFF, v. MELODY RECORDINGS, INC., ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided May 28, 1973.

      Mr. William H. Hyatt, Jr. for plaintiff (Messrs. Pitney, Hardin & Kipp, attorneys).

      Mr. Sheldon A. Weiss for Defendants U. S. Tape Inc. and George Tucker (Messrs. Glauberman & Weiss, attorneys).

      Mr. Joel D. Siegal for Defendants Melody Eecordings, Inc, et al. (Messrs. Hellring, Lindeman & Landau, attorneys).
   Kimmelman, J. S. C.

Columbia Broadcasting System, Inc. (C.B.S.) brings this class action for itself and on behalf of all other recording companies that produce, manufacture and sell musical performances on records and tapes. It is alleged that C.B.S. contracts with well-known artists for the exclusive right to record their performances, and that by the use of costly and sophisticated equipment records their performances upon master recordings and at great expense manufacturers records and tapes from such masters. C.B.S. pays royalties, to the recording artists and to the proprietors of the copyrights of the musical compositions involved, based upon the sales of records and tapes under C.B.S.’s exclusive label. It is charged that defendants unlawfully copy and reproduce the recorded performances embodied on the records and tapes manufactured and sold by C. B. S. and other recording companies by mechanically duplicating the recordings and transferring the exact duplicated sound onto their own records and tapes. In the trade this process is known as “pirating.” The products thereby offered for sale are known as “pirated records” and “pirated tapes.” C.B.S. contends that defendants have unjustly enriched themselves at its expense. More specifically, it alleges that the acts of defendants constitute a violation and infringement of its common law copyrights, are an unlawful and unauthorized appropriation of its rights, constitute unfair competition and are an unlawful interference with its contractual rights. An injunction against the pirating is sought, as well as an accounting and damages both compensatory and punitive.

Both sides have filed cross-motions for summary judgment, supported by extensive and detailed affidavits. Additionally, defendants seek a stay of this action pending a decision by the United States Supreme Court in Goldstein v. California, No. 71-1192. The specific question presented in Goldstein is whether the copyright clause of the U. S. Constitution and the federal copyright act preempt, under the supremacy doctrine, state anti-tape and record pirating laws or preclude the application of unfair competition principles to prevent such pirating. This court heretofore denied C.B.S.’s application for a stay, reserving for decision at this time the motions for summary judgment.

An abbreviated view of federal law relating to. copyrights in the music recording area is necessary for the comprehension and adjudication of this matter. The U. S. Constitution grants to Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [U. S. Const., Art. I, § 8, cl. 8]

Pursuant to this grant Congress first legislated upon the subject in 1790, the latest general revision of the law being the Copyright Act of 1909, 17 U. S. C. A. § 1 et seq. At that time, ami in light of what was then a new technological advance in the wake of Edison’s invention, copyright protection was given to authors of musical compositions against the recording or mechanical reproduction of their copyrighted musical work. Prior to the 1909 revision it had been held that the manufacture of phonograph records embodying a copyrighted musical composition was not an infringement of that copyright. White-Smith Pub. Co. v. Apollo Co., 209 U. S. 1, 28 S. Ct. 319, 52 L. Ed. 655 (1908). By virtue of § 1(e) of the 1909 act, which for the first time extended copyright control over the recording industry, it was provided in pertinent part as follows:

And as a condition of extending the copyright control to such mechanical rejn-oduetions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to he paid by the manufacturer thereof. * *

In basic terms, Congress granted to a composer the right to prohibit mechanical reproduction of his work but provided at the same time, in order to foster the widest dissemination of musical works for the benefit of the public, that once a composer approved and permitted the use of his copyrighted work for mechanical reproduction then, upon payment of the congressionally prescribed royalty, “any other person” or (in effect) all who desired, might at will reproduce the music. Such is the so-called “compulsory license” provision relied upon by all defendants in this ease. 17 U. S. C. A. '§ 1(e). They allege compliance with 17 U. S. G. A. § 101(e) by serving notices of intention to use the musical composition upon the copyright owners and by paying royalties for each so-called “pirated record” or “pirated tape.” Under this procedure nothing is paid to the original record or tape manufacturer, such as O.B.S., who has the underlying contractual arrangement with the proprietor of the musical copyright. Although the fruits of the manufacturer’s efforts are utilized in the pirating process, the manufacturer is completely by-passed with respect to royalty payments. Until a recent congressional enactment added subsection (f) to § 1 of the Copyright Act of 1909, see Pub. L. 92-140, effective February 15, 1972, the manufacturers of sound recordings produced prior to that date were without copyright protection for such recordings. Shaab v. Kleindienst, 345 F. Supp. 589 (D. C. 1972); Int’l. Tape Mfrs. Ass’n v. Gerstein, 344 F. Supp. 38 (S. D. Fla. 1972).

As to pre-February 15, 1972 recordings (and only that category of recordings is involved before this court) the issue for decision depends upon whether Congress intended to permit, upon compliance with the compulsory licensing provisions, unlimited mechanical reproduction of musical recordings by means of pirating, and whether such pirating can be prohibited by resort to state laws dealing in general with the subject of unfair competition. Included within such issue is whether congressional enactments in this area have preempted state unfair competition laws insofar as pirated recordings are concerned.

The subject is complex, and divergent decisions have emanated from various judicial districts. Duchess Music Corp. v. Stern, 458 F. 2d 1305 (9 Cir. 1972), cert. den. 409 U. S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88; Tape Industries Ass’n of America v. Younger, 316 F. Supp. 340 (C. D. Cal. 1970), app. dism. 401 U. S. 902, 91 S. Ct. 880, 27 L. Ed. 2d 801 (1971); Tape Head Co. v. R. C. A. Corp., 452 F. 2d 816 (10 Cir. 1971); Int’l. Tape Mfrs. Ass’n v. Gerstein, supra; Capital Records, Inc. v. Greatest Records, Inc., 43 Misc. 2d 878, 252 N. Y. S. 2d 553 (Sup. Ct. 1964). See, specifically, the comprehensive opinion by U. S. District Judge Lacey in Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F. Supp. 572 (D. N. J. 1912). The preceding list of citations is by no means exhaustive of the subject.

The difficulty arises from the lack of any uniform interpretation concerning the Supreme Court’s holdings in Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964), and Compco Corp. v. Day-Brite Lighting Inc., 376 U. S. 234, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964), and from uncertainty as to whether Sears and Compco undercut the ruling in International News Service v. Associated Press, 248 U. S. 215, 39 S. Ct. 68, 63 L. Ed. 211 (1918). It is hoped that the area will be clarified by the Court in Goldstein now pending for decision.' As a consequence, this court’s opinion on the subject may well become a gratuitous exercise. However, in view of the uncertainty both as to the ultimate decision in Goldstein and as to when the same will be rendered, there is no reason to delay disposition of the instant matter now pending on the calendar of this court.

Based upon my review, I conclude that the Supreme Court’s decisions in Sears and Gompco are controlling and dispositive of the issues here involved. In Sears it appeared that Sears, at relatively small expense, manufactured and marketed a substantially identical copy of a pole lamp originally designed, manufactured and marketed by Stiffel. The issue as posed by the Supreme Court was whether a state’s unfair competition laws can, consistently with the federal patent laws, impose liability for or prohibit the copying of an article which is protected by neither a federal patent nor a copyright. The court stated that

[patent and copyright laws] enacted pursuant to constitutional authority are the supreme law of the land. * * * When state law touches upon the area of these federal statutes it is “familiar doctrine” that the federal policy “may not be set at naught or its benefits denied” by the state law.” * * * This is true, of course, even if the state law is enacted in the exercise of otherwise undoubted state power. [376 ü. S. at 229, 84 S. Ct. at 787]
gt $ }¡4 $
Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws. [Id. at 231, 84 S. Ct. 789]

Sears specifically held that “because of the federal patent laws, a State may not, when the article is unpatented and uncopyrighted prohibit the copying of the article itself or award damages for such copying.” 376 U. S. at 232, 84 S. Ct. at 789 . If otherwise, the court reasoned, perpetual state protection by use of its unfair competition laws would be granted to an article which federal law has said belongs to the public by simple virtue of its lack of entitlement to patent or copyright protection.

In Compco, which involved the identical copying of a distinctive but unpatentable fluorescent lighting fixture, the court again rejected the application of state unfair competition laws, reiterating its holding in Sears as follows:

* * * when an article is unprotected by a patent or copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” [376 U. S. at 237, 84 S. Ct. at 782]

International News Service v. Associated Press, supra., which preceded Sears and Compco by some 46 years, under pre-Erie R. R. Co. v. Tompkins doctrine invoked a general federal common law of “unfair competition” to prevent I.N.S. from copying news bulletins from early editions of newspapers serviced by Associated Press. In effect, I.N.S. was held to have wrongfully pirated and published as its own, uncopyrighted news which A.P. had gathered. As above-noted, a question exists as to the continuing vitality of the ruling by the United States Supreme Court in that case.

Eor illustrations of the current state of confusion, compare Columbia Broadcasting System, Inc v. Custom Seconding Co., Inc., 258 S. C. 465, 189 S. E. 2d 305 (S. C. Sup. Ct. 1972), with Columbia Broadcasting System, Inc. v. DeCosia, 377 F. 2d 315 (1 Cir. 1967). The Supreme Court of South Carolina in the former C.B.S. ease, followed International News Service v. Associated Press, supra, drawing a distinction between merely copying and actually appropriating another’s product and granted an injunction prohibiting what it termed as “disklegging.” On the other hand, the First Circuit Court of Appeals in the latter C.B.S. case held that International News Service v. Associated Press, supra, had been clearly overruled by Sears and Compco.

In our own State, Press Publishing Co. v. Atlantic County Advertiser, Inc., 59 N. J. 356 (1971), is significant. At issue was the right of the publisher of a daily newspaper to enjoin the publisher of a weekly newspaper from copying and publishing advertisements which had earlier appeared in the daily newspaper. Without any reference to International News Service v. Associated Press, supra, the court placed complete reliance upon Sears and Compco, thereby upholding the dismissal of the action. In the absence of any federal copyright protection the court refused to justify state court jurisdiction by the device of labeling the action as one for “unfair competition.” 59 N. J. at 359.

While some courts, as indicated, have found a distinction between the copying of an unpatented design and the exact duplication of a recorded musical composition, I find such .distinction to. be' conceptually meaningless. There is .absolutely no difference in the end result when Sears makes a mold from a lamp pole designed and produced at great expense by Stiffel or when a so-called “pirate” makes an exact duplicate of a recording produced at great expense by C.B.S. Although the means may differ, the end result is exactly the same. The same ■ is true when a weekly newspaper copies and publishes as its own an advertisement previously appearing in a daily. In each instance a businessman has appropriated the unpatented or uneopyrighted product of another and placed on the market as his own an identical product. T6 draw a distinction in the case of “pirating” or “disk-legging” is to invest a difference without substance. The rights of the parties cannot be made to rest on so fine a subtlety.

No comment is required as to the morality or ethics of the business practice involved. The federal intendment is clear. In the absence of patent protection or copyright protection, exact copies or duplicates may be made by anyone. If a person is not an infringer under federal patent or copyright law and thereby insulated from liability, a contrary result in state courts is not dictated simply because the very same conduct is earmarked by a different label. To allow state law to prohibit such copying or duplication would be to afford state protection in a federal area where Congress itself has provided for none.

Under the circumstances, summary judgment must be granted in favor of all defendants.


author: Rizzi, A. J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANTHONY R. RAPACCHIA, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 8, 1973.

      Mr. Michael A. Orlando for defendant (Messrs. Orlando, Hohweiler, and Yampell, attorneys).

      Mr. James E. Isman, Assistant Prosecutor for plaintiff (Mr. Thomas J. Shusted, Camden County Prosecutor, attorney) .
   Rizzi, A. J. S. C.

This matter is before the court on motion of Anthony R. Rapaechia to expunge his criminal record pursuant to N. J. 8. A. 24:21-28 which became effective on January 19, 1971.

The undisputed facts established that on or about December 30, 1968 defendant, then 21 years old, was arrested for possession of marijuana. On July 10, 1969 he pleaded guilty and thereafter was given a suspended sentence, directed to pay a fine and placed on probation. Defendant paid the fine and on October 4, 1972 he successfully completed the probationary term imposed by the court. He has not had any criminal charges against him subsequent to the termination of the probationary period.

The sole and heretofore undecided issue before the court is whether a 21-year-old defendant who has pleaded guilty to and been sentenced for possession of marijuana prior to the effective date of the expungement statute can have that statute retroactively applied in order to avail himself of its provisions.

N. J. 8. A. 24:21-28 reads as follows:

After a period of not less than 6 months, which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this act, such person, who at the time of the offense was 21 years of age or younger, may apply to the court for an order to expunge from all official records, except from those records maintained under the Controlled Dangerous Substances Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, all recordations of his arrest, trial and conviction pursuant to this section. If the court determines, after a hearing and after reference to the Controlled Dangerous Substances Registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any serious or repeated violation of the conditions of such probation, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial. * * *

N. J. 8. A. 24:21-40 states that “[t]he provisions of this aet shall be applicable to violations of law, seizures and forfeiture, injunctive proceedings and investigations which occur following its effective date.”

While there is no case law in New Jersey dealing specifically with the issue of the retroactivity of the expungement statute, there are two recent decisions interpreting the retro-activity of other provisions of the new Controlled Dangerous Substance Act, L. 1970, c. 226 (V. J. S. A. 24:21-1 et seq.) which seem analogous. In State v. Haynie, 115 N. J. Super. 417 (Law Div. 1971), the issue presented was whether a judge could exercise his discretion and sentence a defendant under the new statute, N. J. S. A. 24:21-27, where the new act became effective between the time of defendant’s guilty plea and the time of sentencing.

That court held that it was within the discretion of the judge to impose sentence under the new act. Basically, the court reasoned that it would be unfair to defendants, in view of the then recent executive, legislative, and judicial pronouncements concerning reformation of narcotic offenders, not to treat their offenses under the provisions of the new act.

However, in a later case, State v. Ford, 119 N. J. Super. 260 (App. Div. 1972), the Appellate Division expressed its disapproval of State v. Haynie, supra. In Ford defendant pleaded guilty to possession of heroin and was sentenced to 7-10 years in State Prison. On appeal defendant argued that this sentence was violative of due process in that it exceeded the maximum sentence prescribed by the new Controlled Dangerous Substance Act. However, this new aet went into effect after the commission of the offense but before defendant’s plea. Under the former act, N. J. S. A. 24:18-7(c) (1), the maximum term of imprisonment for possession of heroin was 15 years. The Appellate Division found in N. J. S. A. 24:21-40 (a) and (d) a clear demonstration of legislative intent that this new act did not have retroactive application.

Turning now to the case before this court, it is initially noted that generally all legislation operates prospectively unless a contrary legislative intent is clearly expressed. Salesian Soc. v. Formigli, 120 N. J. Super. 493 (Law Div. 1972). Clearly, no contrary intent has been expressed in N. J. S. A. 24:21-1 et seq.

This court recognizes that the failure to apply N. J. S. A. 24:21-28 retroactively will have many harsh results in that a youthful, one-time marijuana user will not be able to expunge this stigma from his record for ten years. N. J. S. A. 2A:164-28. However, in view of the Appellate Division’s ruling in Ford and the lack of any express legislative intent to apply the expungement statute retroactively, this court is led to the necessity of holding that N. J. S. A. 24:21-28 cannot be applied retroactively to this defendant.

Therefore, defendant’s motion to expunge his record is hereby denied.


author: McGowan, A. J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. NATHANIEL PITTMAN AND MIRIAM PITTMAN, DEFENDANTS.
    Superior Court of New Jersey Law Division (Criminal)
    Decided June 8, 1973.

      Mr. Robert M. Holland, attorney for defendant Nathaniel Pittman.

      Mr. Bruce Edington, attorney for defendant Miriam Pittman.

      Mr. Joseph Regan, Assistant Prosecutor, argued for the State (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney).
   McGowan, A. J. S. C.

Codefendants seek an order dismissing count I of an indictment charging them with conspiracy to make false statements to procure the issuance of credit cards, contrary to N. J. 8. A. 2A :98-l, “Conspiracy.”

The ground urged by both defendants is that at the time of the commission of the alleged offense, and presently, they were and are husband and wife, and because of this it is urged that they cannot be charged with conspiracy because of the common law concept of unity of spouses.

The statute in question reads as follows:

2A :98-l. Conspiracy
Any 2 or more persons who conspire:
a. To commit a crime; or
b. Falsely and maliciously to indict another for a crime or to procure another to be charged or arrested; or
c. Falsely to institute and maintain any suit; or
d. To cheat and defraud a person of any property by any means which are in themselves criminal; or
e. To cheat and defraud a person of any property by any means which, if executed, would amount to a cheat; or
f. To obtain money by false pretenses; or
g. To conceal or spread any contagious disease; or
h. To commit any act for the perversion or obstruction of justice or the due administration of the laws —
Are guilty of a conspiracy and each shall be punished, in the case of a conspiracy to commit a crime involving the possession, sale or use of narcotic drugs, as for a high misdemeanor and in all other cases, as for a misdemeanor.

A research of applicable New Jersey law on the issue in question indicates that the law is indeed sparse. In State v. Car-lone, 10 N. J. 329 (1952), the common law rule was stated to be (at 336) that: “A conspiracy consists * * * in the agreement of two or more persons (not being husband and wife) to do an unlawful act or to do a lawful act by unlawful means.”

State v. Struck, 44 N. J. Super. 274 (Cty. Ct. 1957), is relied upon by defendants as being dispositive of the issue. Struck involved a situation where two married people were charged with conspiracy to obtain money by false pretenses, and after the court had first ruled that they could he so charged and a guilty verdict had been returned, the court set aside the verdict on the grounds that the legislative intent was to exclude a husband and wife from the purview and application of N. J. S. A. 2A :98-l. The court came to this conclusion after a thorough review of the statute’s legislative history and the ease law which, up to that time in 1957, had generally stressed the oneness of the marital relationship. Based upon this the court finally concluded that “the fiction of unity of spouses is still a very real part of our law in this State.” Pinally, the court concluded that it was the function of the- Legislature and not the judiciary to amend the conspiracy statute so as to include married couples, if such was intended.

In this connection it must be observed that there is no definite or specific elimination of married persons in the language of the statute as originally drawn. An interpretation and construction with respect to that portion of the statute which says, “Any 2 or more persons,” was made to the effect that under the old fiction of oneness arising out of the marital relationship, two or more persons could thus not be included, and that a married couple would be considered as one person. So actually what we have here is a judicial construction of a legislative intent based upon a common law principle rather than the language employed in the statute. In this regard, it is interesting to note that the accessory after the fact statute (N. J. 8. A. 2A:85--2) expressly excludes spouses from its operation. Thus, it could be inferred that if the Legislature had intended to immunize married couples from the proscription of N. J. S. A. 2A:98-1, it would have included an appropriate provision in the statute. However, the statutory construction employed in Struck, supra, was inferentially approved in State v. Thyfault, 121 N. J. Super. 487, 504-505 (Cty. Ct. 1972).

The three cited cases represent the present decisions on the subject in New Jersey. At the outset it should be observed and noted that this court is not obliged to follow trial court precedent in the absence of appellate authority. See Ferraro v. Ferro Trucking Co., 72 N. J. Super. 519—523 (Law Div. 1962); Wolf v. Home Ins. Co., 100 N. J. Super. 27, 35-36 (Law Div. 1968), aff’d 103 N. J. Super. 357 (App. Div. 1968).

An examination of the recent happenings in our society and in our case law and judicial precedent in other areas leaves the court with the obvious conclusion that as of 1973, by reason of events occurring in recent years, the common law concept of oneness has been vitiated in this State and other States in many instances. New Jersey has abolished the rule of interspousal immunity for personal torts arising out of negligent operation of an automobile. Immer v. Risko, 65 N. J. 482 (1970); see N. J. S. A. 37:2-5. Furthermore, a married woman in New Jersey may now own property individually, N. J. 8. A. 37:2-12; is liable for debts contracted in her own name, N. J. 8. A. 37:2-10; may enter into a partnership with her husband, N. J. 8. A. 37:2 — 16.1, and may testify in court against her husband in certain cases, N. J. Evidence Rule 32(2).

The majority of the other state and federal courts that have; treated this issue have ruled to allow a charge of conspiracy against a married couple. The cases are collected at 4 A. L. R. 266; 71 A. L. R. 1116; 46 A. L. R. 2d 1275, and A. L. R. 2d Later Case Service at pages 695-696. The latest of these cases is People v. Lockett, 102 Cal. Rptr. 41, 25 Cal. App. 3d 433 (Cal. App. 1972), holding that even where a husband and wife conspire only among themselves, they cannot claim immunity from prosecution on the basis of their marital status, thus essentially following the U. S. Supreme Court in United States v. Dege, 364 U. 8. 51, 80 S. Ct. 1589, 4 L. Ed. 2d 1563 (1960), reh. den. 364 U. S. 854, 81 S. Ct. 29, 5 L. Ed. 2d 77 (1960). That case dealt with an indictment charging a husband and wife with conspiring to commit an offense in violation of § 371 of Title 18 of the United States Code, a statute basically quite similar to N. J. S. A. 2A:98-1. The federal district court dismissed the indictment on the ground that a husband and wife are legally incapable of conspiring. The Supreme Court reversed, and in doing so discussed the common law concept of oneness and disregarded it as obsolete, saying:

Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband, and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offense to the ethos of our society. [80 S. Ct. 1591]

The court went on to add:

For this Court now to act on Hawkins’s formulation of the medieval view that husband and wife “are esteemed but as one Person in Law, and are presximed to have but one Will” would indeed be “blind imitation of the past”. It would require us to disregard the vast changes in the status of woman — the extension of her rights and correlative duties — whereby a wife’s legal submission to her husband has been wholly wiped out, not only in the English speaking world generally but emphatically so in this country.

It is this court’s opinion that the reasoning employed by the IJ. S. Supreme Court and just recited should be recognized and applied to the instant case. It is completely unrealistic to uphold an anachronism which suggests that in this day and age a married couple is legally incapable of engaging or agreeing to engage in illegal enterprises and therefore does not engage in them.

In regard to the argument that the courts should await specific legislation amending N. J. S. A. 2A:98 — 1, and until then interpret the law as excluding married couples from its proscription, as stated in 1957 in Struck, supra, this court sees no reason to infuse; into the instant statute the concept of common law unity of husband and wife. I agree with the reasoning and language employed in the federal courts that

No reason remains why the law should not recognize the obvious fact that the relation of husband and wife does not prevent two persons from conspiring to commit an offense. The interest of society in repressing crime requires that the fact be recognized, and our coinmonlaw system does not require that its recognition await legislative action. [Johnson v. United States, 81 U. S. App. D. C. 254, 157 F. 2d 209, 209 (D. C. Cir. 1946)]

See also Thompson v. United States, 227 F. 2d 671, 673 (5 Cir. 1955).

New Jersey .should wait no longer in conforming to the modern eommonsense view. Thus, I hold that the relationship of husband and wife does not prevent two persons from conspiring to commit a criminal offense and to be validly so charged.

The motion to dismiss count I is denied.


text:
    THOMAS COOR, JR., PLAINTIFF-RESPONDENT, AND CROSS-APPELLANT, v. FRIEDERIKE J. COOR, DEFENDANT-APPELLANT, AND CROSS-RESPONDENT, AND JOHN CATON, CORESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 29, 1973
    Decided June 22, 1973.
    Before Judges Leonard, Halpern and Ard.

      Mr. H. Jonathan Fox argued the cause for corespondent-appellant (Messrs. Scott, Fox & Walsh, attorneys.)

      Mr. Everett M. Scherer argued the cause for plaintiff-respondent and cross-appellant (Messrs. Riker, Danzig, Scherer & Brown, attorneys.)

      Mr. William L. Boyan appeared for defendant-appellant and crossxrepondent and filed a statement in lieu of brief.
   Per Curiam.

This is an appeal from assessment of counsel fees against John Caton, the corespondent, in a related divorce action entitled Coor v. Coor (A-2485-71).

The appellant intervened in the divorce action and filed an answer denying the adultery. He did not participate in the trial thereafter. The trial court found in fa.vor of the husband on the ground of adultery and awarded custody of the children to the husband. In the judgment he allowed the attorney for defendant wife a counsel fee of $7,500 together with disbursements of $110, of which $550 had already been paid by defendant and $500 by plaintiff, thereby resulting in a net amount of $6,610. He assessed this amount against the corespondent.

Appellant argues that the law allowing the assessment of counsel fees and costs against a corespondent is a legal anachronism which should be reversed. In the alternative he argues that the amount of the award imposed was excessive.

R. 4:42-9 (a)(1) provides in pertinent part that in a matrimonial action, “the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, * *

Appellant chose to be a party and the trial court had a discretionary right to impose counsel fees on him. See Duke v. Duke, 72 N. J. Fq. 515 (Ch. 1906), aff’d o. b. 72 N. J. Eq. 941 (E. & A. 1907).

While we affirm the legality of the trial court’s assessment of counsel fees against the corespondent, we find the amount of the fee excessive as to him. Accordingly, we modify the judgment to the extent that a counsel fee of $7,550 together with disbursements of $110, of which $550 has already been paid by defendant and $500 by plaintiff be and is hereby granted attorney for defendant; and the net amount of $6,610 is to be paid in the following manner: $3,000 by the corespondent Caton and the balance to be paid by defendant.

Affirmed as modified.


text:
    FRANK MEISNER, t/a THE FIVE AND TEN OF NORTH HALEDON, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, v. AETNA LIFE AND CASUALTY CO., a/k/a THE AETNA CASUALTY AND SURETY CO., THIRD-PARTY DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973
    Decided June 28, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Frank Catania argued the cause for third-party plaintiff-appellant.

      Mr. Charles W. Hutchinson argued the cause for third party defendant-respondent (Messrs. Lamb, Blake, Hutchinson, Thompson & Chappell, attorneys).
   Per Curiam.

Involved herein is the construction of an “Owners’, Landlords’ and Tenants’ Liability Policy” issued by repondent Aetna Life and Casualty Co., a/k/a The Aetna Casualty and Surety Co. (Aetna), to Frank Meisner, appellant.

Meisner operates a variety five and ten cent store. On December 3, 1966 one John Rosal, Jr., then seven years old, purchased three metal tipped darts at the insured’s store. On the way home a dart which he, threw at a telephone pole ricocheted and hit him in the eye. He and his parents, suing p&r quod, then sued Meisner as well as Haeeker Industries, Inc., the manufacturer of the darts. (We are not here concerned with the claim against Haeeker which is still pending in the trial court.) The theory of liability against Meisner was that he was negligent in selling darts, an inherently dangerous instrumentality, to an infant of tender years.

Aetna denied coverage on its policy. It refused to assume defense of the action against Meisner and denied liability for any judgment which plaintiff might recover against him. Thereupon Meisner filed a third-party complaint against Aetna seeking indemnification for all sums found due from him to plaintiffs.

On cross-motions for summary judgment the court denied Meisner’s motion but granted Aetna’s and dismissed the third-party complaint. The judgment was made final pursuant to R. 4:42-2. Meisner appeals therefrom.

The “Owners’, Landlords’ and Tenants’ Liability Policy” here involved provided for bodily injury and property damage in the following terms:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage
to which this insurance applies, caused by an occurrence and arising out of ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the ajiplicable limit of the company liability has been exhausted by payment of judgments or settlements.

However, the “Declarations” portion of the policy reveals that no preminm was paid or coverage extended for “completed operations hazard” or “products hazard.” Eurther, these hazards specifically were excluded from coverage by section (m) of the listed “Exclusions”;

“Products hazard” by definition includes:
bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others; * »

Additionally, the policy defines "named insured’s products” as used in the above definition to mean "goods or products * * * sold * * * by the named insured * *

Third-party plaintiff contends that plaintiffs’ claim based upon a negligent sale of the darts to a minor is included in the general insurance clause of the policy, and the above-noted exclusion is ineffective as a matter of law to exclude coverage thereof. This contention lacks merit.

The "products hazard” exclusionary clause of the instant policy clearly and unambiguously excludes a claim, such as here asserted by plaintiffs, where the bodily injury arises out of goods or products sold by the insured and occurs away from the insured’s premises.

Clear basic terms and particular provisions of an insurance contract may not be disregarded at will and a new contract judicially made for the parties. Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N. J. 511, 525 (1963); Kampf v. Franklin Life Ins. Co., 33 N. J. 36, 43 (1960).

In Cobbins v. General Accident F. & L. Assur. Corp., Ltd., 53 Ill. 2d 285, 290 N. E. 2d 873 (1972), the Illinois Supreme Court, after discussing the divergent holdings of various courts on this issue, reversed 3 Ill. App. 3d 379, 279 N. E. 2d 443 (Ct. App. 1972) and held that a similar clause excluded coverage of a claim of a young boy who sustained bodily injury as a result of the allegedly negligent sale of fireworks to him. See also Inductotherm Corp. v. N. J. Mfrs. Cas. Ins. Co., 83 N. J. Super. 464 (Law Div. 1964).

Affirmed.