author: Mehler, J. S. C.

text:
    SONY CORPORATION OF AMERICA, PLAINTIFF, v. VALUE HOUSE, INC., AND SUPERMARKETS GENERAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 30, 1972.

      Mr. Robert Scherling for plaintiff.

      Mr. Howard T. Rosen, of counsel (Messrs. Rosen & Weiss, attorneys), V. Vincent Velardo, on the brief, for defendant.
   Mehler, J. S. C.

This is the continued return day of an order to show cause why defendants Value House, Inc. and Supermarkets General Corporation (Supermarkets) should not be enjoined from selling products of plaintiff Sony Corporation of America (Sony), in violation of Sony’s fair trade prices.

The facts as set forth in affidavits and in statements and admissions in the brief of defendants are not in issue. Sony, a New York corporation, sells television sets and other electronic equipment in New Jersey and throughout the United States. Yalue House is a Maine corporation which for 11 years has sold television sets, appliances and other merchandise at retail at low mark-ups and even at mark-ups lower than many other discount dealers. Until recently its stores were located only in New England, where they sold Sony products among others. Yalue House is a subsidiary of Supermarkets, a New Jersey corporation, and is authorized to do business in New Jersey. On August 28, 1972 it opened a store in- West Orange and on September 28, 1972 opened one in Wayne.

In 1970 Sony entered into fair trade contracts with retailers in New Jersey and pursuant thereto established minimum retail prices for Sony products. On August 31, 1972 Value House was given notice of Sony’s fair trade prices. The notice also stated that plaintiff had learned that Value House was selling Sony products below Sony’s minimum retail prices in violation of New Jersey law. Although Value House has not signed a fair trade contract with Sony, it admits that a nonsigner notice of Sony’s fair trade prices was sent to it on August 31, 1972, and that it sells products in New Jersey at lower than plaintiff’s minimum retail prices.

N. J. S. A. 56:4-3 et seq., commonly known as the New Jersey Pair Trade Act (the act), permits manufacturers and retailers to enter into contracts that set a retail price below which the manufacturer’s products may not be resold. The act also contains a “non-signer” provision, N. J. S. A. 56:4-6, which gives a manufacturer a cause of action against a noncontracting party who wilfully and knowingly advertises, offers to sell or sells a manufacturer’s products at less than the minimum resale prices stipulated in a contract between the producer and another. It is under the provisions of this act that Sony seeks an interlocutory injunction against defendants.

On the return day of the order to show cause defendants argued that plaintiff was not entitled to relief because it was not enforcing its fair trade prices in New Jersey. See Menley & James Laboratories Ltd. v. Vornado, Inc., 90 N. J. Super. 404, 414-415 (Ch. Div. 1966). They have now abandoned this argument, for they admit that plaintiff’s affidavits establish that plaintiff has a vigorous policy of enforcing its fair trade prices. The arguments now advanced by defendants will be considered in the order in which they have been presented.

Defendants first contend that the act, especially its non-signer provision, is an unreasonable exercise of the State’s police power and violates the federal due process and commerce clauses and the New Jersey due process clause.

In Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183, 57 S. Ct. 139, 81 L. Ed. 109 (1936), the court declined to accept the contention that the fair trade act of Illinois was unconstitutional as violative of the due process clause of the 14th Amendment. Even though defendants say fair trade laws continue to fall whenever their constitutionality is directly attacked, it is noteworthy that in Lionel Corp. v. Grayson-Robinson Stores, 15 N. J. 191, app. dism. 348 U. S. 859, 75 S. Ct. 87, 99 L. Ed. 677 (1954), defendant’s constitutional attack on the act under both the Federal and State Constitutions was rejected in an opinion which expressed the view that the Dearborn case was still dispositive. Lionel Corp. has not been overruled. I am of course bound by it since it is a decision of our highest court.

Without saying in what manner the act is an unreasonable exercise of the State’s police power and violates New Jersey’s due process clause, defendants merely cite a number of cases. Among them is Remington Arms. Co. Inc. v. G. E. M. of St. Louis, Inc., 257 Minn. 562, 102 N. W. 2d 528, 531 (Sup. Ct. 1960), which said that the state’s fair trade law, by delegating price-making power to private persons, created a new and private government, violated an essential concept of a democratic society and was constitutionally invalid. I do not reach the same conclusion, particularly since in Dearborn the court viewed the legislation solely as a law designed to protect the manufacturer’s good will as summarized by its brand or trade mark against unfair price cutting by distributors, and our Supreme Court has not held to the contrary. Furthermore, in Johnson & Johnson v. Weissbard, 121 N. J. Eg. 585 (E. & A. 1937), the court, in sustaining the act, found that the Illinois Free Trade Aet which was attacked in Dearborn was similar to New Jersey’s.

Defendants refer to Union Carbide & Carbon Corp. v. Bargain Fair, 167 Ohio St. 182, 147 N. E. 2d 481 (1958), which held that the Dearborn case was not controlling insofar as state constitutional principles are concerned. It is to be noted, however, that the nonsigner provision of the Ohio act, as thereafter amended (see Hudson Distributors, Inc. v. The Upjohn Co., 174 Ohio St. 487, 190 N. E. 2d 460, 461 (Sup. Ct. 1963)), was held to be a valid exercise of the state’s police power in Olin-Mathieson Chemical Corp. v. The Ontario Store of Price Hill Ohio, Inc., 9 Ohio St. 2d 67, 223 N. E. 592 (Sup. Ct. 1967). The House of Seagram, Inc. v. Assam Drug Co., 176 N. W. 2d 491 (S. D. Sup. Ct. 1970), cited by defendants, shows that the number of states which have held their fair trade laws to be constitutional is about equal to the number of states which have held theirs to be unconstitutional. See Hudson Distributors Inc. v. Eli Lilly & Co., 377 U. S. 386, 84 S. Ct. 1273, 12 L. Ed. 2d 394 (1964), where the Supreme Court hold that by virtue of the McGuire Act, 15 U. S. C. A. § 45(a) (1)-(5), a trade mark owner, when sanctioned by a state fair trade act, would be permitted to enforce even against a nonsigning retailer the stipulated minimum prices established by written contracts with other retailers. Defendants assert that in Texas Co. v. DiGaetano, 39 N. J. 120 (1963), the court left open the question wdiether the act violates New Jersey’s constitutional provisions and that this court should now declare the act to violate the State Constitution. I do not read the ease in the same way. Furthermore, in Lionel the question of whether the act contravenes provisions of our State Constitution was raised and decided adversely to the retailer. If there is to be a change in our law, it must come either from the Legislature or our highest court.

I am constrained by Lionel and Texas Co. to respect the continued validity of the act.

Defendants nest contend that the act is an undue burden on interstate commerce as applied to the facts of this case and is therefore unconstitutional under the federal Commerce Clause. They say that the act as applied to Value House has the effect of prohibiting it from selling Sony products; that it amounts to a total prohibition of interstate commerce. From this postulate it argues that the act runs afoul of the Commerce Clause, which precludes a state from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between states. The act has no such effect. It is well settled that for constitutional purposes some activities of a business may be intrastate and therefore subject to state control while other activities of the same business may be interstate and therefore subject to federal regulation. See e. g., United States v. South-Eastern Underwriters Ass’n., 322 U. S. 533, 548, 62 S. Ct. 1162, 1171, 88 L. Ed. 1440, 1454 (1944), where the court said:

In marking out these activities the primary test applied by the Court is not the mechanical one of whether the particular activity affected by the state regulation is part of interstate commerce, but rather whether, in each case, the competing demands of the state and national interests involved can be accommodated.

In Johnson c& Johnson, supra, the court, saying at page 586 of 121 N. J. Eq. that it did not perceive how the requirements of our statute affect interstate commerce, continued:

It is a mere direction to a resident merchant that he must not resell trade-marked or branded articles at less than the price fixed by the producer or owner of such marked commodities. If the merchant would profit by the good will built up by the owner or producer he must comply with the requirements of the Legislature.

Even in Freeman v. Hewit, 329 U. S. 249, 67 S. Ct. 274, 91 L. Ed. 265 (1946), on which defendants rely, the court said:

A police regulation of local aspects of interstate commerce is a power often essential to a State in safeguarding vital local interests. At least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State. [329 U. S. at 253, 67 S. Ct. at 277]

See also Lionel, supra, where at 199 of 15 N. J. the court said the act does not constitute an unlawful burden on interstate commerce.

I conclude that the authority given to manufacturers by the act is of a nature which a state may authorize.

Finally, defendants assert that the Supremacy Clause of the Federal Constitution nullifies contracts executed under the authority of the act to the extent tthat they conflict with the Economic Stabilization Act of 1970.

Value House says it is subject to the current restrictions imposed by the price ceilings of the foregoing act as amended, and that prices have been frozen by the President by executive orders. The price freezes are commonly known as Phase 1 and Phase II. It argues that state law must yield to the extent that it conflicts with federal law, and that under well-settled principles the act is subordinate to the act of 1970.

This case is somewhat akin to Helena Rubinstein Inc. v. Charline’s Cut Rate Inc., 135 N. J. Eq. 145 (E. & A. 1954), which involved a conflict between a fair trade price and an O. P. A. price ceiling. There defendants argued that they had the right to continue to sell all plaintiff’s products at prices less than the minima fixed under the provisions of the New Jersey Fair Trade Act because compliance with that statute would contravene the O. P. A. price regulation. In rejecting this assertion, the court said:

This position is untenable. The difficulty is one of defendants’ own making — a consequent of their own wrongful acts. First principles of equity and justice forbid that defendants shall continue to profit from their willful disregard of the state statute. It is not open to them to invoke the Federal rule as justification for the perpetuation of the original wrong. Tt is not a case of conflict between the Federal and State regulations. The Federal regulation was not designed directly to modify or supersede the minimum prices in effect in March, 1942, under the State Fair Trade Act. It operated upon the prices then charged by the individual retailer. He was enjoined against sales at prices above the highest levels which he charged during that month. This price level was constituted the ceiling “regardless of any contract or other obligation.” Yet the dealer is not thus privileged to retail the commodities at prices less than the minima prescribed by the Fair Trade Act.
Defendants are under no obligation to vend complainant’s products ; and they are not free to retail them in violation of the State statute, [at 147-148]

Tlie court concluded by saying

Plainly, it was not designed that the “freezing” of retail prices at the level of March, 1942, should operate to the advantage of a retailer whose sales prices during that period violated the State Fair Trade Act, and thus to the detriment of all retailers of the commodities in the same category who had observed the requirements of the Fair Trade Act.
The New York case of Schreier v. Siegel, 178 Misc. 711, 36 N. Y. S. 2d 97, cited in the opinion of the Vice Chancellor, was later reversed by the Appellate Division. 265 App. Div. 36, 37 N. Y. S. 2d 624. The rationale of that decision is that the Congress did not intend “to put its stamp of approval upon unfair trade practices by permitting violators of a state fair trade law to profit at the expense of those who in good faith complied with its provisions.” [at 149]

What was said in Helena Rubinstein may readily be said about Value House. It came into New Jersey with its wealth of experience in the discount and fair trade fields and must have or should have known, as did Supermarkets, operator of Pathmark stores here, that Sony fair-traded its products. Coming into New Jersey as a new venture, it might well have operated as a distinct entity and under Phase II been permitted to retail Sony products at Sony’s prices. Moreover, it opened a store in Wayne on September 28, .1972, virtually a month after it was given notice of 'Sony’s fair trade prices. It excuses its conduct by saying it believed the act to be unconstitutional or not binding on it; The difficulty, if it could be' called one, in which .Value House finds itself. is of its own making, • .

What was said in Schreier v. Siegel, 265 App. Div. 36, 37 N. Y. S. 2d 624, 626 (App. Div. 1942), with respect to O. P. A. is apposite here.

Possibly the Price Administrator (Administrators of Phase II) may relieve the defendant of his difficulty if a proper application is made for an adjustment of the prices so as to conform to the spirit and letter of the law and of the fair trade contracts. However, pending the granting of such an application, defendant should be restrained from selling the articles complained of at any price. Thus he will be safeguarded from prosecution at the hands of the Federal authorities for violating the United States Emergency Price Control Act of 1942. At the same time plaintiifs will be protected from unfair competition at his hands.

Upon a consideration of the entire matter, I am satisfied that plaintiff is entitled to an interlocutor injunction against Value House. A similar injunction against Supermarkets does not seem to be warranted at this time, for it is Value House, not Supermarkets, which is engaged in selling Sony’s products. If it turns out that Supermarkets is operating in violation of Sony’s fair trade prices, plaintiff may, on notice, apply to this court for appropriate relief.


source: Caselaw Access Project

author: Wood, A. C., J. C. C.

license: Public Domain

text:
    RUDOLPH DWANE, PLAINTIFF, v. WEST AMERICAN INSURANCE CO., DEFENDANT.
    Burlington County District Court
    Decided December 5, 1972.

      Messrs. Kent & Grayer, attorneys for plaintiff (Mr. Frederick R. Grayer appearing).

      Messrs. Kessler, Tutek & Gottlieb attorneys for defendant (Mr. Myron H. Gottlieb, appearing).
   Wood, A. C., J. C. C.

This is an action for recovery under the collision provisions of an automobile insurance policy.

Plaintiff Rudolph Dwane, while driving his automobile in New York State on June 28, 1970, was involved in a serious accident. He and his wife suffered personal injuries and the automobile was extensively damaged. Both Mr. and Mrs. Dwane were removed to a hospital in Goshen, New York. The automobile, which was disabled, was towed to Anderson’s Body Shop in Chester, New York.

The automobile was insured against collision damage by defendant company. Dwane, who was less seriously injured than his wife, notified the company of the accident by telephone call to its local agent in Cherry Hill, New Jersey. A week later, while Mrs. Dwane was still hospitalized in Goshen, Dwane saw the automobile at the Anderson shop. His observation, admittedly not with the eye of an expert, led him to believe that the damage was total and the automobile beyond repair.

Mrs. Dwane was confined to the hospital in Goshen for two weeks. Upon the return of the couple to Cherry Hill, Thomas Unger, a claim representative of defendant company, called on Dwane at his home and discussed with him at length the circumstances of the accident. A week later Dwane received from Unger a handwritten “Claim Memorandum” dated July 28, 1970, with which was enclosed a “Proof of Loss” with the request that the latter be signed' and returned to the company. The “Claim Memorandum” stated that the “agreed 'figure for repair” was $1744.34 and that the “net claim”- (the “agreed figure” less $50 deductible) was $1694,34. .

Dwane declined to execute the “Proof of Loss,” being of the opinion, as he told Unger, that the automobile was not repairable. He asked that the car be towed to a place closer to his home so that he might “keep an eye on it.” The request was refused, Dwane being informed that it was “company policy” to pay only for the towing of the vehicle from the scene of the accident.

The “agreed figure” set forth in Unger’s “Claim Memorandum” was arrived at in this wise:

The claim was assigned by the company to an independent adjuster who engaged Ford’s Appraisal Service, an automotive appraisal specialist in Goshen, to negotiate with Anderson’s Body Shop with respect to the estimated cost of repairs. This appraiser prepared an estimate dated July 9, 1970 containing the statement that “When authorized, the below named (Anderson’s Body Shop) will complete and guarantee the listed repairs for a total of $1744.”

On receipt of this estimate, Unger sent the “Claim Memorandum” and “Proof of Loss” to Dwane. Plaintiff himself had no part in the negotiations between the appraiser and the body shop or in the preparation of the estimate. He was not told where repairs would be made. Moreover, it is inferable that he was never informed that the making or authorizing of repairs was his responsibility.

Having declined, as stated, to execute the “Proof of Loss,” Dwane consulted his present counsel, Frederick R. Grayer. Grayer conferred with Unger and achieved an understanding that if the estimate were agreed to and the proof of loss executed accordingly, any undiscovered damage requiring further repair would be paid for by the company. This understanding was set forth in a letter by Grayer to Unger, dated August 14, 1970. With that understanding and subject thereto, Dwane, on counsel’s advice, executed the “Proof of Loss” and returned it to the company. Thereafter defendant issued its check dated August 20, 1970 to the order of Rudolph Dwane for $1694.34. The check was received and deposited by Dwane.

Anderson’s Body Shop failed to return the automobile or to advise plaintiff that repairs were completed or even in progress. Repeated attempts by Dwane to communicate with them having proved fruitless, he again turned for help to Unger, who on February 23, 1971 addressed a letter to Anderson’s Body Shop demanding advice as to the repair of the car and explanation for the long delay. So far as appears, there was no repfy to that letter. On January 22, 1971 defendant company issued an additional check to Dwane- in the sum of $50.

Plaintiff is still without his automobile. By this action he demands reimbursement for the total loss of the machine, crediting thereto, of course, the amounts which he has already received from the company.

The provisions of the policy respecting loss by collision are set forth in Part III and provide in pertinent part as follows:

Coverage B Collision. To pay for loss caused by collision to the owned automobile * * * but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable thereto.

The- deductible amount provided in this policy is $50.

Paragraph 11 of the “Conditions” of the policy is, by its terms, applicable to Part III. It provides for payment of loss as follows:

11. Payment of Loss Part III. The company may pay for the loss in money; or may repair or replace the damaged * * * property ; * * * or may take all or such part of the property at the agreed or appraised value but there shall be no abandonment to the company.

The undertaking is to pay for all loss occasioned by each accident in excess of $50. The option afforded by the condition above quoted as to the maimer of payment of the loss does not in any way relieve the company of its liability to pay all of such loss.

The company rests its defense on three principal grounds:

1. That it had a right to, and did elect, to pay money to plaintiff in satisfaction of his claim;

2. That plaintiff, rather than defendant, made the agreement with Anderson’s Body Shop for the repair of his vehicle, and his remedy, if any, is against Anderson.

3. That plaintiff’s damages were the result of the negligence of a third party (i. e., Anderson) over whom defendant had no control.

4. That plaintiff in executing the “Proof of Loss” elected to receive the sum therein set forth in full satisfaction and discharge of all loss under the policy.

The first three contentions may be considered together.

Following the accident plaintiff’s automobile was removed from the scene by persons over whom he had no control. Thereafter, although he saw the automobile on one occasion, he was unable to and did not exercise any control over the vehicle, nor did he have any say whatever in the evaluation or handling of his loss. The company, through its adjuster and appraiser, handled all the negotiations with Anderson. Plaintiff relied on the company. I am satisfied and find as a fact that he was led by the company to believe that the company would see to the repair and return of the vehicle. Indeed, when first asked to sign the “Proof of Loss” he declined to do so until his attorney received a clear understanding set forth in his letter of August 14, 1970, that the acceptance of the damage figure set forth therein was subject to the reservation that if repairs were not complete, any subsequently discovered damage arising out of the accident would be paid for by the company. Defendant, under the circumstances, could not, by the device of a cash payment to plaintiff, short-circuit its obligation to pay all loss arising from the collision.

Defendant’s contention that plaintiff, rather than defendant, contracted with Anderson for the repairs of his vehicle is simply not borne out by the evidence. Plaintiff had no choice as to the place to which his car was removed. He had no dealing with Anderson’s Body Shop and no direct communicátion with them except his many fruitless telephone calls to ask about his car. The negotiations were all conducted by defendant’s representatives, and, as stated, plaintiff was led to sign the proof of loss only upon the representation and in the belief that his car would be completely repaired and returned to him.

Surprisingly, the question of the nature and extent of the obligation of an insurer under the collision provisions of an automobile policy seems to have been dealt with very little, if at all, by the courts of this State. However, the applicable principles, which appear to have been established by decisions in other jurisdictions are set forth in 6 Appleman, Insurance Law and Practice § 4005 at 716-728. Discussing the option to repair provided in the policy, Appleman says:

Likewise, the exercise of the insurer’s option to repair must be reasonable as respects the place where the repairs are to be made, and whether the place selected is reasonable depends upon the particular facts of the case. In addition, the election must be unequivocal and cannot be coupled with an offer of compromise or used as a means to effect a compromise. An insurer’s submission to the insured of a proof of loss. based on its adjuster’s contract for repairs, and its subsequent payment of the amount named therein constituted recognition of the adjuster as an agent authorized to adjust .the claim. And the action of the adjuster in taking a car to a garage, securing estimates for repairs, and making a contract for repairs, warranted an inference that the insurer had elected to repair rather than pay money damages, [at 719-720]

Cf. Council v. Sun Ins. Office of London, 146 Md, 137, 126 A. 229, 51 A. L. R. 29 (Ct. App. 1924).

And further,

. An insurer electing to repair must perform within a reasonable time. And an insurer which exercises its option to repair is liable to the insured for an unreasonable delay in making the repairs, assuming, oí course, that the insured suffered damage from such delay, [at 722]

And

Tf the insurer elects to repair, such repairs must make the car as serviceable as it was before the loss. Moreover, the insurer has been held to be obligated to replace the automobile where it could not make such repairs as were sufficient to restore the automobile to its condition prior to being damaged, [at 726]

Dugas v. Insurance Co. of St. Louis, 134 So. 2d 634 (La. App. 1961).

In the instant case I am satisfied that the company, by its conduct, made a binding election to repair the automobile. It could not avoid that election by taking from the insured a proof of loss (which the insured clearly executed under a mistaken impression, encouraged by the company, that it would secure the repair and return of the car) and paying a sum of money pursuant thereto. The car not having been repaired or returned, although over two years have elapsed since the accident, I conclude that plaintiff has been totally and permanently deprived of his automobile and defendant is liable under its policy for the total loss sustained thereby.

Plaintiff’s automobile was a 1967 Buiclc Riviera, purchased in January 1967 for a price of $5890. It contained a considerable number of “optional features.” Plaintiff testified that at the time of the accident the car had been driven about 34,000 miles. He estimated the value of the automobile immediately before the accident to be $3300. (The statements in the repair estimate as to mileage and value are hearsay and are disregarded.) I find plaintiff’s entire testimony to be candid, truthful and credible. His opinion as to the value of his car being uncontradicted by any credible evidence, I accept it. The defendant having paid $1744.34, it is liable for the difference between that figure and the loss sustained. No allowance should be made for salvage value. Defendant may recover the car and secure the salvage, if any. Judgment will be entered in favor of plaintiff for the sum of $1555.66 and costs.


author: Staller, J. C. C.

text:
    JOHN W. GOTSCH, PLAINTIFF, v. GAIL GOTSCH, DEFENDANT.
    Cumberland County Court Law Division
    Decided December 6, 1971.

      Mr. George J. Stillwell for plaintiff (Messrs. Greenblatt and Greenblatt, attorneys).

      Mr. Irwin Kavesh for defendant (Messrs. Kavesh & Basile, attorneys).
   Staller, J. C. C.

This matter comes before the court on defendant’s motion for summary judgment seeking the dismissal of the complaint upon the ground that plaintiff’s .claim is barred under the rationale of the cases of Koplik v. C. P. Trucking Corp., 27 N. J. 1 (1958), and Darrow v. Hanover Tp., 58 N. J. 410 (1971).

The unrefuted facts presented on this motion, as set forth by recital in the briefs and affidavit with copies of letters attached filed'-by plaintiff’s counsel, indicate that on July 5, 1970 plaintiff John W. Gotseh (hereinafter John) was a passenger in an automobile operated by Gail Brock (hereinafter Gail), which automobile left the highway and struck a stone wall, injuring plaintiff. Although the collision occurred in the State of New York, both John and Gail were and continue to be residents of New Jersey. On August 14, 1970 John called his attorney and told him about the accident. His attorney set up an appointment for August 17, .1970 wherein full details of the incident ‘were elicited and .counsel retained. On the same day-John’s attorney called and spoke with a representative of Gail’s insurance carrier, Hartford Accident and Indemnity Company (hereinafter Hartford), advising the representative-of his retainer, asserting that -no complaint would be filed then but that further conferences would be had after the local representative secured the initial investigation file from the New York office. Thereafter, and until September 8, 1970, John’s attorney-engaged in several telephone discussions with the carrier concerning the claim, the gist of which was to await further medical developments and procure reports and records, all with the view to an amicable disposition of the matter. During this period, on August 22, 1970, John and Gail were married.

John’s attorney being uncertain of his client’s new position as to the doctrine of marital immunity, and for the protection of his client’s interest, sent a complaint to the county clerk on September 8, 1970 and a copy thereof to Hartford’s representative, explaining in the letter of transmittal to the insurance company that “although we normally would not file a complaint at this time, I am doing so since the law in this area, may change and I feel it is my duty to the client to see to it that the action is instituted.” Further statements of the letter were to the effect that service would not be effected for ten days, that a 30-day extension of time to answer would be freely granted giving the carrier at least 60 days to answer, and that in the meantime sufficient records could be developed and presented and if the company wanted a physical examination another extension by court order would have his consent. Included in this letter were copies, of initial hospital records which had just arrived. About 30 days later, on October 9, 1970, a doctor’s report was forwarded to the carrier along with a copy of the doctor’s bill to date, and John’s attorney iterated his reasons for instituting the action and brought the company adjuster up to date as to service of process upon John’s wife, giving assurance that consent would be granted to orders for filing answer out of time and asking if any other information was required.

On June 7, 1971 Justice Proctor, speaking for our Supreme Court in Darrow v. Hanover Tp., supra, held that the rule of Immer v. Risko abrogating the doctrine of inter-spousal immunity in automobile negligence cases would be available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immer was decided.

On June 17, 1971 the carrier’s claims supervisor wrote to John’s attorney asking if he was in a position to supply a list of the medical specials and lost wages, if any, expressing an interest in “how much the claimant earns, and whether or not he has returned to employment. This is necessary for the development of our file.”

Shortly thereafter, apparently, the carrier retained counsel who on July 27, 1971, served a notice of motion before this court for an order of summary judgment dismissing the husband’s complaint against his wife upon the grounds that the claim was barred under the rationale of Koplik and Darrow, supra.

In support of the motion it is contended that prior to Immer v. Risko, 56 N. J. 482 (July 10, 1970), the inter-spousal immunity rule in automobile negligence cases was specifically applied to suits between spouses in antenuptial torts. Koplik, supra. Therefore, since the accident occurred five days before Immer was decided, the doctrine of inter-spousal immunity still applies under the authority of Koplik because Barrow holds that the Immer rule is available only prospectively.

Justice Proctor, in deciding Immer v. Risko, supra, pointed out (at 485) that although the number of courts opposing the interspousal immunity doctrine was growing, our Supreme Court in abrogating it was not going to predicate its decision on the trend but upon its own view of the policies involved. This led to the further statement flowing from Long v. Landy, 35 N. J. 44 (1961), that “when the reasons for immunity are absent, a cause of action should be recognized and enforced by our courts.” (at 487).

There then followed a reexamination of the reasons to determine whether such reasons were present in the case:

Legal identity of husband and wife was cast out as artificial and technical, (at 488). Disruptive effect upon the harmony of the family was carefully analyzed and it was concluded that a denial of the right to bring an interspousal action is as likely to disrupt the family harmony as is the right to maintain the action; it was further reasoned that, realistically, virtually every owner of a motor vehicle with a sense of responsibility carries liability inusrance coverage and the presence of insurance militates against disruption of the interspousal relationship; that the cost of making the injured spouse whole would necessarily come out of the family coffers if this void in insurance coverage were to remain, and such a drain on the family resources would be more likely to disrupt the harmony of the family than if recovery could be had. (at 489).

The most troublesome reason considered in Immer was that there was a possibility of fraudulent and collusive litigation against the frequent real party in interest — the insurance carrier, (at 490). It is this reason rationalized and discarded which must be considered in a determination of the present case. As was stated in Immer, citing Rozell v. Rozell, 281 N. Y. 106 (Ct. App. 1939):

The Courts may and should take cognizance of fraud and collusion when found to exist in a particular case. However, the fact that there may be greater opportunity for fraud and collusion in one class of eases than another does not warrant courts of law in closing the door to all classes of eases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out tiie meritorious from the fraudulent in particular cases, [at 494]

And further our court stated:

In a day when automobile accidents are unfortunately becoming so frequent and the injuries suffered by the passengers are often so severe, it seems unjust to deny the claims of the many because of the potentiality for fraud by the few. (p. 495)

We come now to a consideration of Darrow v. Hanover Tp., supra, which it is contended gives only prospective force to the Immer rule.

Here again the court considered whether there were sound policy reasons for limiting the Immer rule to prospective effect. (Darrow at 414) The first reason considered was that retrospective application of Immer would result in an undue burden on the court system. This was quickly disposed of since our court system is designed to serve the needs of the people and it would not be fulfilling its purpose if it excluded litigants because of inconvenience to lawyers and judges, (at 414) Indeed, an example of this forthright philosophy is the most recent rule change suggestion to lengthen court hours and curtail court recesses to accommodate the burgeoning backlog of matters before the courts of our State. 94 N. J. L. J. 761, 771 (August 19, 1971)

The next policy reason studied for giving only prospective effect to the Immer rule was that in Immer the court’s decision was predicated on the availability of insurance; prior to January 1, 1967 there was no coverage afforded in the Standard Family Automobile Policy in New Jersey, and retrospective effect would defeat Immer’s purpose. The court dismissed this by asserting that while the presence of insurance was a factor, the court never held nor meant to imply that absence of insurance would be a bar to suits between spouses, (at 415)

The policy reason which the court found acceptable for prospectivity was that there was justifiable reliance on earlier decisions of our courts upholding interspousal immunity, (at 415). In fact, such reliance has shown itself to be the primary factor which led courts in other jurisdictions to give prospective effect to their decisions abrogating immunities, (at 416), and where in some cases our courts gave retrospective effect to such decisions it was found that there ivas no reasonable basis for reliance on the continuance of the specific immunity doctrine. Dalton v. St. Lukes Catholic Church, 27 N. J. 22, 26-27 (1958). (at 417).

However, our Supreme Court found support in the contention for prospectivity in Darrow because it found that there was a reasonable basis for reliance on the existing state of the law in New Jersey of interspousal immunity, (at 418). The reliance was that of the insurance carriers who are most frequently the real parties in interest, and the area of their primary reliance is the investigation of accidents.

As stated in Darrow:

While this court was firmly split, insurers had no reason to promptly investigate accidents involving the possibility of inter-spousal claims. It is crucial to an adequate determination of liability that an insurer have the opportunity to gather evidence as soon as possible after the accident. To effectively protect its interests, a carrier must ordinarily identify the witnesses and take their statements while their memories are fresh; it must also make prompt physical examination of prospective claimants. As time passes, witnesses disappear, memories fade and claimants may have intervening physical difficulties; investigations can be pursued only with great difficulty and little promise of success. When we spoke in Immer of the ability of trial judges and juries to weed out collusive and fraudulent claims, 56 N. J. at 493-494, we were thinking of claims which could bo adequately defended through an independent investigation of the facts. If insurance carriers are reduced to relying entirely upon statements by the litigant spouses, without further investigation, the task may prove too onerous [at 419]

The court in Darrow also found a corollary to the protection of carriers by giving prospective effect to Immer, i. e., that it would foster stability by avoiding the necessity of opening claims which might have gone stale because of failure to promptly investigate, (at 419).

Having considered the rationale of Darrow so vigorously contended for by the movant, we turn now to the application of such rationale to the case before us.

Before doing so, however, Koplik v. C. P. Trucking Corp., supra, must be dealt with. Koplik held that the immunity doctrine applied to prenuptial torts.

As in Koplik, Immer v. Risko likewise dealt with parties who were unrelated at the time of the tort and who married each other after suit was filed. Justice Proctor having resolved for the court that the doctrine of interspousal immunity should be abrogated, found no necessity to specifically reverse Koplik. It is obvious, therefore, that Koplik is no longer the law of this State and there is no need to reverse Koplik as is urged by plaintiff.

In the instant case, a prenuptial tort, it is clear that Hartford did not rely on interspousal immunity to prevent its investigation. Indeed, it had apparently commenced an investigation in New York where the accident had occurred, and the agent sent for the investigation file from the New York office. This was an investigation of an accident involving parties unrelated to each other. After the file was secured further information was supplied and negotiations were carried on looking toward amicable settlement. Even after Barrow was decided Hartford was still seeking information as to plaintiff’s loss of earnings.

Since justifiable reliance is the basic rationale of Barrow and no prejudicial reliance is shown by defendant’s carrier, the reasons for immunity are absent and the cause of action should be recognized and enforced. Long v. Landy, supra. Moreover, the additional purpose of declaring prospectivity only to the Immer rule, that of fostering stability and avoiding the necessity of opening claims which might have gone stale because of a failure to promptly investigate, is not present in the case before this court.

Motion for summary judgment is accordingly denied.


author: Handler, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JACK THYFAULT AND THERESA SIRIMARCO, DEFENDANTS.
    Essex County Court Law Division (Criminal)
    Decided December 4, 1972.

      Mr. Alan Silber, Assistant Prosecutor, for the plaintiff (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Thomas E. Durkin, Jr., for defendants.

      The opinion in this case was rendered orally from the bench. It lias been edited for clarification.

   Handler, J. S. C.,

Temporarily Assigned. This is a criminal prosecution in which defendants Jack Thyfault and Theresa Sirimarco are charged in separate counts with the crimes of conspiracy, obtaining money by false pretenses, impersonation, embezzlement and attempted obtaining money by false pretenses between 1968 and 1971. Trial by jury was waived by defendants.

Jack Thyfault for many years had been in the business of repossessing automobiles to enforce liens, a business subject to the Garage Keepers Lien Act, N. J. S. A. 2A:44-20 et seq. He operated this business under the name of Major Auto Recovery Service at 21-23 Jacob Street, Newark, a two-story building with an office in the basement and an adjoining garage. Eor a long time Theresa Sirimarco lived with Thyfault as his wife although they were not lawfully married until August 1971. She assisted actively in the business by answering the telephone, giving information, repossessing vehicles, collecting moneys for the release of vehicles, giving receipts and transmitting moneys to lien holders and claimants.

Major Auto’s customers were owners of garages or gas stations and others in the business of repairing or rendering services in connection with motor vehicles, those who had claims for work performed upon automobiles and required the enforcement of such claims and liens. Major Auto apparently obtained customers through advertisements such as calendars, flyers and its listing in the telephone directory; some customers had come to know of Major Auto by word-of-mouth.

In a typical case, the owner of a gas station or garage would call in response to such an ad or reference and inquire as to whether and under what conditions Thyfault would offer his services in the enforcement of liens. Thy-fault usually indicated that he would repossess or pick up any vehicles, that he would collect from the car owner all moneys due for the payment of any outstanding claims, and that his services would not cost the garageman anything. He created the impression that in this business he was a constable. Some of his advertising material, the telephone listing and signs in and on the premises indicated that defendants were “constables.” On a particular job defendants would usually get a request from such a garage owner over the telephone to repossess a car. The amount of the bill, the make of the car, the name of the owner and such pertineric information would be given defendants. Utilizing this information defendants themselves would prepare a form warrant which purported to authorize Major Auto, as the agent of the particular claimant, to repossess a vehicle to enforce the lien under the Garage Keepers Lien Act. Ordinarily these warrants were not first prepared, completed or executed by the lien claimant prior to their use by defendants in the enforcement of liens. Moreover, defendants did not prior to a repossession verify with the claimant as to whether he had made any personal or written demand upon the car owner for the payment of the outstanding bill.

When a car had been repossessed by defendants, ostensibly pursuant to such a warrant, they would demand of car owners the amount of money inserted in the warrant as the outstanding bill and also for an additional sum, a flat $55 which varied slightly in some cases. Only upon request, when pressed, would they inform car owners as to the basis of this additional charge. They frequently stated the $55 was for towing or storage and also, from time to time, it was said to include "interest,” "fees” or "constable fees.” It did not appear that defendants actually calculated their cost for towing or storage, although there was a storage rate of $3 a day which was charged in some situations. It is inferred that the $55 charged to car owners was intended as a fee to compensate defendants for their services, since no additional charge for fees or expenses was ever made by defendants upon the lien claimant and, in this sense, the services rendered defendants did not cost a garagekoeper anything.

Defendants during times set forth in the indictment were not constables. At one time prior to October 1970 Sirimarco had been a duly appointed constable, but Thyfault had never held that office. Yet defendants frequently represented or held themselves out to be constables. As noted they used advertising materials and signs using the term “constables.” They also indicated to garagemen who solicited their services that they were constables. This was used to secure business and was designed to convey the impression that their enforcement of liens would be particularly effective and efficient. With respect to car owners whose vehicle had been seized it was suggested unmistakenly in most cases that they were dealing with “constables” who were knowledgeable and vested with authority to enforce such claims and collect all moneys demanded. This ploy was to stifle resistance on the part of the car owners and to impel them to pay all sums demanded without further remonstrations or protests.

Thirteen counts of the indictment charge Thyfault, and another separate count charges Sirimarco, with the crime of impersonating a public officer, contrary to N. J. S. A. 2A:135-10. That statute provides that “[a]ny person who, without authority, exercises the functions of, or holds himself out to anyone as, an officer or employee of the state or any agency or political subdivision thereof, not so being, is guilty of a misdemeanor.” It has been contended that a “constable” is not an officer or employee within the intendment of this criminal statute.

N. J. S. A. 40:41-34 et seq. provided for the office of constable. Pursuant thereto persons were elected to that office by governing bodies of municipalities; the number of constables for each municipality was restricted; the term of office was limited; the filling of vacancies was included; a statutory oath for the performance of duties was mandated, and the furnishing of a bond conditioned upon the faithful performance of a constable’s duties was required. A myriad of other statutes indicate the numerous and varied duties which devolve upon a constable. Such duties are closely analogous to those of other recognized law enforcement officers.

It has been recognized that “[generally, a constable is an officer of a municipal corporation, usually elected, whose duties are similar to those of sheriff, although his powers are less and his jurisdiction smaller.” 80 C. J. S. Sheriffs and Constables § 3 at 154 (1953). “A constable is a public officer, and generally speaking the duties are to be vigilant, to preserve the peace.” 47 Am. Jur., Sheriffs, Police and Constables, § 34 at 845 (1943). It would appear that a person enjoying the official status of “constable” should be considered a public officer and, in that sense, “an officer * * * of the state or * * * political subdivision thereof * * *.” (N. J. S. A. 2A:135-10).

[A] “[Pjublic officer” has been defined as an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law.
A person whose duty it is to perform an agency for the state, . . . a person appointed or elected to perform a designated duty concerning the public; one who performs a public function, whose authority is derived directly from the state by legislative enactment, and whose duties, powers, and authority are prescribed by law. [67 C. J. S. Officers § 2 at 101-102 (1950)]

The statutory history of N. J. S. A. 2A:135-10 is instructive. Its predecessor, R. S. 2:160-11, delineated those officers or employees the impersonation of which would constitute a crime. That list included specifically the office of constable as well as many others, such as deputy sheriff, marshal, policeman, or other police officer, a plumbing, sanitary, food and drug or milk inspector, or other accredited employee of the Department of Alcoholic Beverage Control or of the State Tax Department. The current statute is an enlargement, not a constriction, of the types of officers or employees, included within its ambit. Thus, a constable is an officer within the intendment of N. J. S. A. 2A:135-10.

The gravamen of the crime of false personation consists of falsely representing some other person or acting in a character unlawfully assumed in order to deceive others, and thereby gain some profit or advantage, or enjoy some right or privilege, appertaining to the party so' personated. The false pretense of being a person of the class or character designated in the statute is the gist of the offense. 35 C. J. S. False Personation § 3, at 794 (1960). To “[p]ersonate ordinarily means to pass one’s self off as another, to play the part or assume the character of, another.” Lane v. United States, 17 F. 2d 923, 924 (6 Cir. 1927). Such false personation can be accomplished by actions or conduct or by outward indicia such as signs or advertising. It is a holding out whereby a person induces others to believe that he can lawfully engage in a particular activity or exercise certain authority. State v. Kelsey, 46 Wash. 2d 617, 283 P. 2d 982 (Sup. Ct. 1955). What is essential is the intentional representation reasonably calculated to give rise to the belief that the defendant occupied a particular office. Heskett v. United States, 58 F. 2d 897 (9 Cir. 1932). Such holding out or false personation may involve verbal declarations as well as other manifestations of authority. Pierce v. United States, 86 F. 2d 949 (6 Cir. 1936). It is also requisite that any false personation be accomplished with fraudulent intent, which is an an essential element of the offense. Lamar v. United States, 241 U. S. 103, 36 S. Ct. 535, 60 L. Ed. 912 (1916); Russell v. United States, 271 F. 684 (9 Cir. 1921); Wharton’s Criminal Law and Procedure, § 592 at 334 (1957); 32 Am. Jur. 2d., False Personation, § 6 (1967).

In this case defendants engaged in false personations of the office of constable; these were undertaken with a design to deceive others and to gain some profit or advantage. Such personations were accomplished by outward manifestations of that office as well as verbal affirmations on numerous occasions. They were done with a fraudulent intent to gain and secure business and to effectuate the collection of moneys with a minimum of difficulty, even though sums demanded may not have been chargeable or may have otherwise been lawfully protested by car owners. (See discussion, infra). It is concluded that Jack Thyfault and Theresa Sirimarco are guilty of the crime of impersonation as set forth in counts 3, 7, 9, 11, 13, 15, 17, 19, 21, 23, 28, 31, 34, count 37, and count 26, respectively.

Thyfault is also charged with embezzlement of moneys, contrary to the provisions of N. J. S. A. 2A:102-5. The elements of embezzlement are settled. There must be a relationship such as that of employment or agency between the owner of the money and defendant; the money alleged to have been embezzled must have come into the possession of defendant by virtue of that relationship; there must as well have been an appropriation or conversion of that money, and such must have been intentional and fraudulent. State v. Kennedy, 61 N. J. 509 (1972); State v. Daly, 38 N. J. 1 (1962); State v. Hubbs, 70 N. J. Super. 322 (App. Div. 1961).

Thyfault repossessed several cars upon the oral instructions of Charles Gehrig, the proprietor of a garage called Ear Hills Esso to enforce claims for work done. He collected moneys from the respective car owners. The moneys collected were those demanded by Thyfault. They included his flat “charge” of $55 plus some additional charges as well as the amounts constituting Gehrig’s bills. These bills were the bases of the liens which Thyfault was enforcing. One such repossession and collection occurred in April 1968; two others were on May 25 and June 26, 1970. Thyfault, as the authorized agent of Gehrig, was obligated to hold and remit these moneys to him. Eventually these monies were paid to Gehrig, but this occurred in August 1972, after Thyfault was indicted for the embezzlement of these sums. He had received those moneys as the agent of Gehrig, and as Gehrig’s agent he was entrusted with their collection and remittance. It is inferred from his failure to remit that he intended not to return these moneys to Gehrig. His explanations for nonpayment, not otherwise substantiated, such as the destruction of his records through fire and theft, were a fabrication. Thus, Thyfault’s failure to remit these sums, coupled with the intent not to pay his principal, constituted an unlawful conversion of these moneys. It is determined that Thy-fault is guilty of the crime of embezzlement, as charged in counts 29, 32, and 33 of the indictment.

Defendant Thyfault is charged in various counts with the crime of obtaining money by false pretenses or representations, contrary to the provisions of N. J. S. A. 2A:111-1. It is alleged that with intent to cheat and defraud, he did represent that he was a public official, to wit, a constable; that he was authorized to tow vehicles of particular persons, and that those persons in effect were required to pay him the amount of money that was owed to the holder of the garage-keeper’s lien, plus certain sums of money for expenses, towing fees and storage; whereas in truth, as alleged in the indictment, Thyfault knew that he was not a constable, and that the particular persons involved did not have to pay any sum for the expenses, towing fees and storage, and, in fact, that the law of this State forbids such expenses, towing fees and storage from being charged to the owner of the vehicle towed or repossessed pursuant to a garagekeeper’s lien. In essence, Thyfault is accused of misrepresentations involving the enforcement of liens under the Garage Keepers Lien Act.

N. J. S. A. 2A:44-21 provides that a garagekeeper who has stored, maintained, kept or repaired a motor vehicle or furnished gasoline, accessories or other supplies at the request or with the consent of the owner, shall have a lien upon the motor vehicle for the sum due therefor. Such a garagekeeper may without process of law detain the vehicle at any time it is lawfully in his possession until the sum is paid; if the motor vehicle has been removed from his control with permission, he may without further process of law seize the vehicle peacefully and without force, after he has made a demand of payment of his claim, either personally or by registered mail. N. J. S. A. 2A:44-22. It is emphasized that the amount of this lien is limited precisely by the statute to the sums that are due for the storing, maintaining, keeping or repairing of a motor vehicle, or furnishing gasoline, accessories or other supplies by the garagekeeper.

Under N. J. S. A. 2A:44—23 the owner of the vehicle so detained may immediately demand from the garagekeeper or the person in charge thereof a statement of the true amount claimed to be due by the garagekeeper for the storing, maintaining, keeping or repairing of such motor vehicle, or for furnishing gasoline, accessories or other supplies thereto. A repossessor or person who has seized a vehicle to enforce such a lien is required to furnish such a statement, and that statement must consist of those items which constitute the basis of the garagekeeper’s claim and lien. This statutory section further provides that upon the receipt of such a statement, if the owner of the vehicle considers it to be excessive, he may offer what he considers to he reasonably due and demand possession. If this is refused, he may nonetheless obtain possession by depositing the amount claimed in the statement with the clerk of the court, together with certain statutory costs. Upon such deposit he becomes entitled to possession of his motor vehicle. N. J. S. A. 2A:44-24. If an owner does not endeavor to recapture his motor vehicle, the garagekeeper, to effectuate his claim and lien, may cause the vehicle to he sold at public auction. N. J. S. A. 2A:44-29. The proceeds of the sale must be applied to the payment of the lien and the expenses of the sale. Under no circumstances, even in the event of such a sale, is anyone other than the owner of the vehicle entitled to any balance that might be realized over and above the amount of the lien and the expenses of the sale. N. J. S. A. 2A:44-31.

There is a paucity of decisions construing the correlative rights and duties of garagekeepers and car owners under the Garage Keeper’s Lien Act. Wallace v. Terpis Garage, 17 N. J. Misc. 183, 7 A. 2d 795 (D. Ct. 1939) held that under the act the garagekeeper is not entitled to claim any amount 'over his bill which might be attributable to fees and expenses expended in the seizure of an automobile. The court concluded that such fees and expenses were not specifically authorized by statute and, since the lien created by statute is in derogation of the common law and to be strictly construed, such additional charges should be disallowed. See also, Onondaga Truck Lease Inc. v. Hovell, 107 N. J. Super. 463 (Cty. Ct. 1969), aff’d 111 N. J. Super. 549 (App. Div. 1970).

The law pertaining to the garagekeeper’s lien is explicit that persons engaged in the repossession of automobiles, be they garagekeepers or their authorized agents, in order to enforce garagekeepers’ liens, are not authorized to exact from ear owners any sums reflecting costs, charges or expenses incident to the seizure of vehicles. Absent a sale, the only amount that may be demanded and collected from an owner "whose car is subject to a lien under the Garage Keeper’s Lien Act is the amount of the garageman’s bill. But not everyone engaged in the business of enforcing such liens may share in this legal understanding or actually know this to be the law.

The crime of false pretenses requires not only that there be a misrepresentation, but that such false representation be made by a defendant having actual knowledge that it is false and with a specific intent to cheat or defraud. State v. Greco, 29 N. J. 94 (1959); State v. Samurine, 47 N. J. Super. 172 (App. Div. 1957), rev’d per curiam on other grounds, 27 N. J. 322 (1958). There is a reasonable doubt that Thyfault had actual knowledge that the law did not authorize him to charge car owners for his expenses of towing and storage or his fees for services rendered on behalf of garagemen, or that a collection of such fees or expenses from car owners was prohibited by law. But his overcharges per se do not constitute the essence of his misrepresentations. He represented to car owners that he was a constable. That representation was false. Moreover, he did not merely charge owners for amounts in excess of the garageman’s hill and represented to car owners that they were obligated to pay such fees. He represented that owners could not secure the return of their vehicles unless such moneys were paid. This was false. Owners on demand were entitled to a statement of the bill or claim, and, if disputed, to pay such sums into court and thus secure the possession of their vehicles. None of these rights was ever stated or intimated by Thyfault to car owners.

Some of Thyfault’s misrepresentations involved legal propositions. That such a misrepresentation may be the basis of the criminal charge of obtaining moneys or other things of value by means of false representations, contrary to N. J. S. A. 2A:111-1, has not been adjudicated in this jurisdiction. It has been held elsewhere that such a misrepresentation, while it might give rise to actionable fraud, does not constitute a criminal offense. State v. Edwards, 178 Minn. 446, 227 N. W. 495 (Sup. Ct. 1929). The majority in Edwards conceived that one unlettered in the law, even though the victim of another’s fraud, could not take refuge in his own ignorance. The dissent, making more sense, stated that the maxim that ignorance of the law excuses no one was not intended and ought not to be used to enable a wilful wrongdoer to protect himself from the consequences of his act because of his victim’s lack of legal knowledge. To use the maxim to that end, as held in Ryan v. State, 104 Ga. 78, 30 S. E. 678 (Sup. Ct. 1898), is a perversion of it. Cf., Brock v. Weiss, 44 N. J. L. 241 (Sup. Ct. 1882). Moreover, where one party possesses or professes to possess superior knowledge of the law and is thereby in a position to take advantage of another person’s ignorance and to mislead him, he should not be shielded by his victim’s vulnerability. Meacham v. Halley, 103 F. 2d 967, 971 (5 Cir. 1939). Thus, Thyfault’s misrepresentations, involving as they did the untruthful proposition of his being a constable and the erroneous statements that owners were not entitled to obtain their cars unless moneys were paid over and above a garageman’s actual bill, were a blend of misrepresentations of fact and law. Such misrepresentations may constitute the basis of the crime of false pretenses.

It is inferred that Thyfault knew the falsity of his representations and that these false representations were uttered with an intent to defraud. This was done to cozen and bully distraught car owners into paying Thyfault all sums demanded and to divert them from disputing these claims or obtaining their cars by pursuing other available remedies. Car owners, by virtue of these pretenses and in reliance thereon, did pay moneys to which Thyfault was not entitled and were effectively deterred from securing the possession of their vehicles by other lawful means.

In some instances persons did not in fact rely reasonably upon any of the false representations of Thyfault. Reliance is an essential element of this crime. State v. Allen, 53 N. J. 250 (1969); State v. Zwillman, 112 N. J. Super. 6 (App. Div. 1970). With respect to these incidents Thyfault’s conduct falls short of the crime. It is, therefore, determined that Thyfault is guilty of the crime of obtaining money or other things of value or benefits by false pretenses or representations, as charged in counts 6, 8, 10, 14, 16, 18, 20, 22, 24, 27, 30 and 35 of the indictment; he is not guilty of this crime as charged in counts 2, 12 and 36.

Defendant Sirimarco is charged with the crime of attempted obtaining money by false pretenses in count 25 of the indictment, contrary to N. J. S. A. 2A:85-5, and N. J. S. A. 2A:111-1. The attempt to commit a crime is an act done with intent actually to commit such a crime. It is an act which goes beyond the mere preparation for the commission of the crime. It is such an act as would apparently result in the commission of the crime itself in the usual and natural course of events if permitted to reach fruition. Cf. State v. Weleck, 10 N. J. 355 (1952); State v. O'Leary, 31 N. J. Super.. 411 (App. Div. 1954). Such acts must manifest a defendant’s intent to perpetrate the crime, although the offense is not actually committed.

Sirimareo attempted to obtain from one Ward, a car owner whose vehicle had been repossessed by her, a sum of money in excess of that claimed by an automobile dealer for work done upon the vehicle. When Ward strongly protested the existence as well as the amount of the bill, Sirimareo represented she was a constable and indicated that Ward would not be able to get his car unless her demands were met. Her representations and conduct bespeak an intent on her part to gain an advantage over Ward. Her representations were knowingly false. When Ward protested strongly and showed his own credentials as a federal'employee, Sirimareo was effectively discouraged. She abandoned her efforts to collect the amounts originally demanded and finally released Ward’s car on the payment of the repair bill. Sirimarco’s statements and actions, while they fall short of the commission of the crime of obtaining moneys or things of value by false pretenses, extended beyond mere preparations therefor. Consequently, defendant Sirimareo is guilty of attempted obtaining money by false pretenses, as charged in count 25 of the indictment.

Defendants are charged in the first count of the indictment with conspiracy. The gist of the crime of conspiracy is an unlawful agreement, that is, an agreement or understanding between persons to violate the law. State v. Dennis, 43 N. J. 418 (1964); State v. Carbone, 10 N. J. 329 (1952). Specifically, the objects of this alleged conspiracy are the substantive crimes previously discussed. Defendants did have such an understanding or arrangement between them and they committed one or more of the acts set forth in the indictment as overt acts in furtherance of the conspiracy. Cf. State v. Malaspina, 120 N. J. Super. 26 (App. Div. 1972). To the extent that the conspiracy endured beyond the date of the marriage between the defendants in August 1971, any agreements or overt acts committed thereafter have not been considered. Cf. State v. Struck, 44 N. J. Super. 274 (Cty. Ct. 1957). But such conspiratorial agreement and any overt acts undertaken prior to the lawful marriage between the defendants are not immune from criminal sanction. Accordingly, it is determined that defendants Thy-fault and Sirimarco are guilty of the crime of conspiracy, as charged in count 1 of the indictment, between 1970 and August 1971.

      These conclusions are based ujKtn evidence and testimony pertaining to certain gas station or garage owners and their transactions with Thyfault. The court’s more detailed factual determinations with respect thereto are omitted.

      These determinations are based upon the evidence and testimony relating to the repossessions of vehicles of 16 different persons who appeared as witnesses. For brevity the court has omitted its findings concerning these individual transactions.

      The indictment charges offenses on various dates between 1968 and 1971. During that period of time the statute applicable to the office of constable was L. 1922, c. 151; N. J. S. A. 40:41-34 et seq. This statute was superseded by L. 1971, c. 200, eff. July 1, 1971; N. J. S. A. 40A:9-120 et seq.

      Research through the computer facilities at Health Law Institute, Pittsburg, Pennsylvania, discloses that 174 statutes deal with the subject of “constables.”

      For example, the clerk of the Essex County District Court testified that he was familiar with the provisions of the Garage Keeper’s Lien Act and procedures thereunder. It was his understanding of the law that repossessors were not authorized to exact payments over and above the garagekeeper’s bill. An unofficial form of warrant purports to authorize the agent-repossessor to enforce the lien against a particular ear owner indebted to the garagekeeper or automobile repairman; it provides for the sum which is due for storing, maintaining, keeping or repairing said motor vehicle, or furnishing gasoline, accessories or other supplies in the exact language of the statute. But this warrant further purports to authorize the agent to take the property and detain it until said sum due and expenses are paid, and if not paid, to hold the property for sale; and upon such sale to apply the proceeds to the payment of the lien and the expenses of seizing, impounding and selling a motor vehicle. In this respect, the warrant does not appear to be in conformity with the statute. Since it is widely used, perhaps under color of judicial sanction, it could give the impression to one engaged in the business of repossessing vehicles that expenses incidental to the repossession of a vehicle, in addition to the claim of the garagekeeper, are collectible from the car owner.

      It is noted that the New Jersey Criminal Law Revision Commission adopted the reasoning of Ryan v. State, supra, in its Penal Code, § 2C:20-4. The commentary indicates, “We follow the decisions that impose liability whenever a defendant obtains property by a knowing misstatement of the law.” New Jersey Penal Code § 2C:20-4(8) (c), commentary, at 226 (1971). See Model Penal Code § 206.2, comment (tent. draft No. 2, 1953).
      The Penal Code further clarified its position concerning misrepresentations of law, as well as the present state of the law, by commenting that no New Jersey cases were found on deceptions as to the law. The Code as written, however, does not exclude such false representations of law. It noted conflicting precedents elsewhere on criminal liability for obtaining property by false representations as to the relevant law. Ibid.


author: Per Curiam.

text:
    ROBERT F. CATTO, AN INFANT, BY HIS GUARDIAN AD LITEM, GREGG CATTO, AND GREGG CATTO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. HOWARD A. SCHNEPP, MAURICE RIVER TOWNSHIP, DEFENDANTS, AND CUMBERLAND COUNTY BOARD OF FREEHOLDERS, DEFENDANTS-RESPONDENTS, v. MAX BARBER, THIRD PARTY DEFENDANT. ROBERT F. CATTO, AN INFANT, BY HIS GUARDIAN AD LITEM, GREGG CATTO, AND GREGG CATTO, INDIVIDUALLY, PLAINTIFFS, v. HOWARD A. SCHNEPP, MAURICE RIVER TOWNSHIP (A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY), CUMBERLAND COUNTY BOARD OF FREEHOLDERS (THE GOVERNING BODY OF CUMBERLAND COUNTY), DEFENDANTS, AND MAURICE RIVER TOWNSHIP, (A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY), THIRD PARTY PLAINTIFF, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, AND AETNA CASUALTY AND SURETY COMPANY, THIRD PARTY DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 10, 1972
    Decided February 3, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Edward S. Miller argued the cause for appellant Maurice Biver Township (Messrs. Gant & Miller, attorneys).

      Mr. James L. Cooper argued the cause for appellants Catto (Messrs. Cooper, Greenberg, Katzman & Todd, attorneys).

      Mr. Gerald M. Eisenstat argued the cause for defendant Howard A. Schnepp (Messrs. Shapiro, Brotman, Eisenstat & Capizola, attorneys).

      Mr. Anthony D. Buonadonna argued the cause for respondent Cumberland County Board of Freeholders (Messrs. Tuso and Gruccio, attorneys).

      Mr. Samuel Adler argued the cause for respondent Harleysyille Mutual Insurance Company (Mr. Michael Brooke Fisher, Associate, on the brief).

      Mr. Jay H. Greenblatt argued the cause for respondent Aetna Casualty and Surety Company (Messrs. Greenblatt & Greenblatt, attorneys).
   Per Curiam.

Plaintiff Robert F. Catto obtained a judgment of $1,000,000 against defendants Maurice River Township and Sehnepp for personal injuries sustained in an automobile accident. The jury awarded Catto’s father some $37,000 additional for expenses generated by his son’s injuries.

The accident occurred shortly after 6 a.h., just before daylight on the morning of March 24, 1967. The pavement was still wet from a rain that had fallen during the night. Plaintiff Catto was heading east on Stage Coach Road in Maurice River Township as he approached a curve. Had he completely negotiated the curve, his car would have faced in a southerly direction. Defendant Schnepp’s car, coming from the opposite direction, was traveling north as he entered the same curve. According to Schnepp’s co-worker, who was riding in a car behind the Sehnepp vehicle, Sehnepp was traveling about 50 to 55 m.p.h. As Schnepp’s car went into the curve it slid down the banked .portion of the curve into the lower, opposite lane of travel. It had apparently spun around so that its rear struck the front of plaintiff’s ear.

Plaintiff testified that, because of the condition of the curve, he slowed down to 25 or 30 m.p.h. He observed the Schnepp vehicle begin to lose control. He related that he applied his brakes and pulled to the right shoulder to give the Schnepp vehicle room; that the latter skidded to the left and then spun into his car “head-on.” The officer investigating the accident immediately afterwards found 99 feet of tire marks leading to the Schnepp car. lie expressed the view that the marks were not the type of skid marks which would come from a vehicle braking to a sudden halt; and that both tires were smooth of tread—the left had approximately one foot of canvas showing through the rubber.

Plaintiff urged that the accident was at least the joint responsibility of Schnepp and the Township. Plaintiff’s theory of liability on the part of defendant-township was that Stage Coach Boad, originally a Township Boad, was improperly designed and constructed so as to be an efficient producing cause of the accident. Plaintiffs maintained that the defective condition constituted a nuisance for which the Township remained liable notwithstanding transfer of control to Cumberland County some five years before the accident. They also asserted liability on the part of the County on the theory of nuisance because it took over control of a defectively constructed road and failed to maintain it in a safe condition.

As we understand it, the asserted specific defect in the design and construction consisted in having too sharp a curve without adequate banking in view of the dip which existed in the highway at that point.

The trial court granted summary judgment in favor of the defendant County. It also granted summary judgment in favor of third-party defendants, Harleysville Mutual Insurance Company and Aetna Casualty and Surety Company. Defendant Township had instituted third-party actions seeking to hold the insurance companies responsible under insurance policies issued by them to the Township.

Defendant Township appealed as to all defendants. Defendant Schnepp appealed from that part of the judgment relieving the County of responsibility.

The township engineer testified that in 1958 the Township redesigned and reconstructed the road in accordance with plans prepared by himself and approved by the Township Committee and by the State Highway Department Engineer. The Township received 90% of the cost of the reconstruction from the State.

The township engineer related that when he redesigned the road he followed certain standards with respect to the design of the curve where the accident happened; that these criteria were contained in a “blue book,”; known as “A Policy on Geometric Design of Rural Highways," and that at the time of the accident there was a posted sign indicating the existence of the curve, but none indicating a change in the grade or that a decrease in speed was necessary. He stated that the highway had a macadam surface and that in order to reduce the severity of the dip in the curve all that was necessary was to put in additional fill when the road was reconstructed. He testified that the Township could have reduced the degree of the curve by utilizing the balance of the right-of-way so as to make the curve less sharp.

Plaintiffs' expert testified that a car traveling in a Northerly direction, as was Schnepp’s car, encounters a tight curve to the left, the radius of which was about 630 feet; that the road is banked rather steeply with the effect of causing a person on the passenger side of the vehicle to be higher than the driver; and that about 100 feet into the curve there is a dip in the road. He expressed the opinion that the road was “definitely below the standard for such construction," and that a sign limiting the speed to 40 m.p.h. should have been posted at the curve. In his view the curve could not be negotiated safely at a speed in excess of 40 m.p.h.

Our examination of the record convinces us that the Township’s conduct involving the design and reconstruction of the road in question was one “resting in the discretionary judgment of the governing authority." These actions are not subject to judicial review within the doctrine enunciated in Willis v. Department of Conservation and Eco nomic Development, 55 N. J. 534 (1970). See, Hughes v. County of Burlington, 99 N. J. Super. 405 (App. Div. 1968), certif. denied 51 N. J. 575 (1968). This is so whether the action is couched in language of nuisance or negligence. Therefore such conduct may not be the basis for predicating liability against defendant Township.

Since we have concluded that the Township is not liable, the County must also be relieved of responsibility. The duties allegedly breached by the County are essentially the same as those charged against the Township. No independent liability can attach for failure to post a speed limit or other warning sign or for failure to maintain the roadway in a safe condition since these activities also are cloaked with immunity as resting within the discretionary judgment of the governing authority. Fitzgerald v. Palmer, 47 N. J. 106 (1966).

Furthermore, we entertain considerable doubt whether the evidence adduced by plaintiffs established a chain of causation between plaintiff’s injury and conduct on the part of the Township or the County. It is elementary that a party cannot recover on a theory of negligence unless that party presents some evidence tending to show that the act of negligence was the proximate cause of the party’s in juries, or, in the case of more than one tortfeasor, that the conduct of that party was a substantial factor in contributing thereto. Kulas v. Public Service Elec. & Gas Co., 41 N. J. 311, 317 (1964); Ellis v. Caprice, 96 N. J. Super. 539 (App. Div. 1967), certif. den. 50 N. J. 409 (1967)

Attributing every favorable inference to plaintiff’s, evidence, the jury could conclude that: (1) there was a two-car collision; (2) defendant Schnepp lost control of his ear which slid down the banked portion of the highway and collided with plaintiff; (3) that the strip of road upon which the accident occurred was defectively designed by defendant Township and that the defective design could result in the driver having difficulty in controlling his car.

Plaintiffs were required to show that loss of control of the car was a result of a defective condition of the road. This was a crucial element of proof and a prerequisite to liability on the part of the Township and County. Here loss of control could well have been attributed to any number of reasons, such as falling asleep at the wheel, inattention, mechanical problems or defective condition of the tires. In the present case there does not appear to be present any evidence linking Schnepp’s loss of control with the defective condition as testified to by plaintiffs’ expert.

We observe that the photographs in the appendix show quite clearly the nature of the curve of the highway, the extent of the grade and dip in the road. They also indicate the extent to which the road is banked at the point where the accident occurred. Common experience tells us that this type of condition reoccurs many times over in roads throughout this State and elsewhere. Against this factual background and the vagueness of the expert evidence as to causal relationship between the alleged defective design and the accident, the following quotation from Hughes v. County of Burlington, supra would seem to be particularly apt:

In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. Hughes v. County of Burlington, 99 N. J. Super. at 412, quoting Weiss v. Fote, 7 N. Y. 2d 579, 200 N. Y. S. 2d 409, 167 N. E. 2d 63 at p. 67.

This observation also appears to lend support to the appropriateness of applying the governmental immunity doctrine to this type of activity.

The judgment against defendant Maurice River Township is reversed. In all other respects, the judgment appealed from is affirmed. Ho costs.