author: Ackerman, J. S. C.

text:
    MAYFAIR FABRICS, PLAINTIFF, v. HENRY HENLEY, ET AL., DEFENDANTS. WILLIAM B. NATELL, PLAINTIFF, v. HENRY HENLEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 5, 1968.

      Mr. Robert F. Colquhoun for plaintiffs, William B. Natell and Jean Natell.

      Mr. Daniel Crystal for defendant, Preben Jensen (Messrs. Cohn and Lifland, attorneys).
   Ackerman, J. S. C.

This is a further sequel to the decision in Mayfair Fabrics v. Henley, 48 N. J. 483 (1967), hereinafter referred to as “Mayfair Fabrics — 1”, which dealt with the interpretation and effect of an exculpatory clause and provision for insurance in a commercial lease between William and Jean Natell, the owners and landlords of a commercial building, and the Mayfair Eabries, Inc., a New Jersey corporation, which was the sole tenant of the building.

On August 10, 1963, while the 'business' operations of the tenant of- 'knitting and manufacturing cloth' products were in progress, with its employee PrebeU Jensen at" work in the building, a disastrous fire occurred. The building was damaged to the extent of $33,179.20, for'which the landlords were "fully reimbursed by their fire insurance carrier.' The tenant suffered damage in the amount of approximately $251,200, consisting of direct property damage to its machinery, equipment and materials in the amount of $Í79,-' 333.55, for which it was fully reimbursed by its fire insurance carriers, plus out-of-pocket property losses in the amount of $11,155.75 and a loss profit claim- of $60,728.83 which were not covered by insurance..

Cross-suits were commenced by the landlords and by the tenant charging each other with negligence and seeking to recoup the full amount of losses sustained. As is apparent from-.the facts, ¡recited above, the suit by the landlords was wholly a subrogation -action by its fire insurance carrier and the action by the 'tenant was in part a subrogation action. The landlords, in- addition to suing the .corporate tenant, joined-Jensen, the tenant’s employee, as ai,defendant,-alleging .that the fire was caused by his negligence.

A succession of motions for summary judgment followed, each , dealing-:;with the effect of the following clause which was contained in a typewritten rider attached to the printed form of the lease as paragraph 28 thereof:

“It is nmtually agreed that the landlords will insure the building against fire and the tenant agrees to carry fire insurance upon all equipment and personal property used, placed or stored in, on or near, the leased premises and in no event shall the landlord be responsible or liable for loss,or. damage to''-the tenant’s property by-fire, explosion or otherwise.In the .event that the hazards of the-tenant’s business makes it impossible.. fqr landlords to obtain fire insurance at standard rates covering 'the said building then this lease shall at the option of ¡the, landlord ibe null. and. void.” ■

In Mayfair Fabrics — 1, supra, the Supreme Court, ruling upon the landlords’ motion that they were exculpated from liability to the tenant, held that the clause, contained in a commercial lease between parties having equal bargaining-power, was a valid private contractual arrangement between the parties providing for mutual reciprocal obligations to insure their respective properties against damage by fire and distributing the risks of loss-between them. It concluded that the landlords were relieved of liability to the tenant for its direct property damage, but declined to pass upon the question whether the tenant’s claim for loss of business profits was barred by the clause since that question had not been briefed or argued.

Upon remand, cross-motions for summary judgment were made by ithe landlords and the tenant. The landlords moved for judgment that the exculpatory clause barred the tenant’s suit against them for loss of business profits, and the tenant' moved for judgment against- the landlords that the clause relieved it of liability to the landlords for their property damage to the building. The employee Jensen, apparently believing that if the tenant’s motion were granted the landlords’ suit against him would fall as a matter of course, did' not formally join in the -tenant’s motion or file a motion of his own asserting that he was entitled to the exculpation claimed to be vested by the clause in his employer.

-In Mayfair Fabrics v. Henley, 97 N. J. Super. 116 (Law Div. 1967), hereinafter referred to as “Mayfair Fabrics- 2/’ this court held that the clause in the lease, viewed realistically as a normal, commonsense efiiort by businessmen to allocate between them the cost and expense of risks of property damage for fire, was an undertaking by each of the parties-to secure adequate insurance against loss to properties, and-that as between them the clause constituted an agreement to look to that insurance alone to recoup any loss and to relieve the other from liability for loss even though caused by thd other’s negligence. It held that the tenant was relieved by the clause from liability to the landlords even though-there was no express language in the clause, similar to .that in favor of the landlords, • explicitly granting exculpation to the tenant. The Court also held that the clause relieved the landlords from liability to the tenant for indirect as well as direct property losses and that the landlords were therefore' not liable to the tenant for any loss of business profits as a-result of the fire. The motions for summary judgment by both the landlords and the tenant were therefore granted, and the net effect thereof, at the trial level, was to terminate the litigation between the landlords and the tenant and to leave them, and their insurance carriers, to bear their own losses.

The landlords now assert that Jensen is not entitled to the exculpation granted to Mayfair Fabrics, Inc., his employer. They assert that the clause does not contain express language granting exculpation to agents, servants or employees of the tenant and claim that any limitation of liability granted by the clause is personal to the tenant as a corporate entity and that it does not benefit its officers or employees. Jensen asserts on motion for summary judgment now before the Court that the exculpation granted to his employer bars suit by the landlords against him.

In order that this case may be considered in the proper framework, certain points should be noted at the outset. In the first place, the fact that this is a subrogation claim by the landlords’ fire insurance company against Jensen, rather than a suit for the direct benefit of the landlords, has no determinative force in the decision of the matter. Subrogation is a favored remedy but it is clear that the subrogee’s rights arise no higher than those of the subrogor. Here the question is the effect and meaning of the clause as between the contracting parties, the landlords and the tenant. As pointed out in Mayfair Fabrics-2, supra, the New Jersey standard fire policy permits an insured to waive rights' of recovery against any party before loss, and if the landlords granted exculpation ■ by the clause in question to the employees of the tenant, as well as to the tenant as a corporate entity, the fire insurance company as subrogee cannot complain and is bound thereby.

Second, it is clear that any negligence of Jensen occurred while he was acting within the scope and course of his employment. The contentions of the landlords with reference to Jensen’s negligence, contained in the original and supplemental pretrial orders in the cause, are as follows:

“On the date in question, in the early morning hours, the defendant, Preben Jensen, was the servant, agent and employee and in charge of the defendant, Mayfair Fabrics manufacturing operation when due to the negligent maintenance of the machinery, under exclusive control of Mayfair Fabrics, certain overload was placed on electrical circuits installed and maintained by Mayfair Fabrics. The defendant, Preben Jensen, was negligent in that he permitted such overload to work with full knowledge of the condition of the equipment maintained by Mayfair Fabrics, and negligently caused the switches controlling said equipment to be turned off and then again switched on and did by his negligence switch on other switches, causing fuel oil to be pumped upon the electrical equipment, which was defective, causing the fire in question.”

It is clear that, absent a release of liability under the exculpatory and insurance clause, the tenant as employer or master of Jensen would be liable to the landlords for his negligence under the doctrine of respondeat superior and that Jensen himself would be liable to the landlords for his own negligent acts, Moss v. Jones, 93 N. J. Super. 179 (App. Div. 1966), and that the landlords’ fire insurance carrier, having paid the landlords’ loss, would normally be subrogated to the landlords’ rights to recover from the tenant and from Jensen.

It is the Court’s conclusion, however, that Jensen as employee is entitled to the limitation of liability granted by the clause to Mayfair Fabrics, Inc., his employer. Although neither the efforts of counsel nor extensive research by the Court have brought to light any New Jersey decisions which are directly dispositive of the matter, the general rule is that an employee is entitled to the benefit of an exculpatory clause vested in an employer in circumstances such as those presented in this ease.

The governing principle is stated in subsection (.2) of section 347 of the Restatement, Agency 2dy as follows:

<<:}; * * . * * * . * *
' (2) Where, because of his relation to a third person, a master owes no duty, or "a diminished duty, of'care, a servant in the performance of his master’s work owes no greater duty, unless there has been reliance by the master or by a third person upon a greater undertaking by the servant.”

Comment (b) on subsection (2) provides in part:

“In most states landowners have, in general, no duty to warn trespassers of dangerous static conditions of the land * * * In some states they are not liable to a trespasser for ordinary negligence in their activities. Bjr statute or decision in many states, a host is only under a duty of slight care to his guests. An employer may by contract relieve himself from liability for ordinary negligence to purchasers, bailors and beneficiaries. In all of such cases, a servant or other agent is not required to meet a higher standard than that required of the principal. (Emphasis added)

The same .principle is stated in comment d. to section 350 of. the Restatement: .

“An agent acting for a master or other principal normally owes no greater duty of care than his principal, who by contract with another can relieve himself from liability for harm caused by ordinary negligence or who may have less than the normal duty of care because of a special relation, such as a host to a guest in an automobile. See § 347, Comment b.” '

See also §§ 343, 345, 359 (B).

The Reporter’s Notes contained in the Restatement, Agency 2d, Appendix, with respect to § 347 state as follows:

* * * * * * * A servant of a carrier or other contracting party has the benefit of limited liability resulting from the contract between the servant’s employer and the third person: Schoeffer v. United Parcel Serv. of N. Y., 277 App. Div. 569, 101 N. Y. S. 2d 451 (1950); Employers’ Fire Ins. Co. v. United Parcel Service of Cincinnati, 89 Ohio App. 447, 99 N. E. 2d 794 (1950); Parker v. Bissonette, 203 S. C. 155, 26 S. E. 2d 497, 147 A. L. R. 773 (1943).” (at p. 566)

The decision in Schoeffer v. United Parcel Service of New York, 277 App. Div. 569, 101 N. Y. S. 2d 451 (App. Div. 1950), is in point. There the Court said:

“The agreement of June 24, 1949, was for the storage of plaintiff’s furs and for their delivery to her when she requested them. The §3,000 limitation of liability clearly applied to any loss occurring while Morris or someone in his employ returned the furs to plaintiff. If an employee of Morris carelessly lost the furs entrusted to him for delivery to plaintiff, it is clear that the employee, if sued for his negligence, could invoke the $3,000 limitation of liability. * * *
Defendant was not an interloper: it was not a stranger to the contract of bailment: it was not a tortious third party; indeed it was engaged in performing the bailment agreement when the furs were stolen. It has been urged with much force that for all practical purposes the defendant was Morris inasmuch as it had been properly selected to carry out an essential part of the bailment agreement. In the language of Section 347 of the Restatement of the Daw of Agency: ‘An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal’.” (101 N. Y. S. 2d, at p. 453)

In Employee’s Fire Ins. Co. v. United Parcel Service, 89 Ohio App. 447, 99 N. E. 2d 794, 799 (Ct. App. 1950), the Court ruled:

“The question naturally arises as to the extent of the defendant’s liability. It was the representative of Jenny, Inc., engaged in performing its contract, when the delict occurred. Jenny, Inc.’s liability was limited to $100. Is defendant’s liability similarly limited? We are of the opinion that it is so limited. Section 347 of Restatement of the Law of Agency is: ‘An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.’ Had the principal acted in person in carrying this coat and had been sued for the damage done, no matter what the form of action, its liability would have been limited to $100. When it engaged the defendant to get the coat for it, it clothed the defendant with all the authority and rights which it, the principal, had against the owner, including the right to have liability limited to $100. It was a defense pro tanto, available equally to Jenny, Inc. and any and all in possession of the coat under its authority.”

In Berger v. 34th Street Garage, 3 N. Y. 2d 701, 171 N. Y. S. 2d 824, 148 N. E. 2d 883 (Ct. App. 1958), plaintiff, an expressman, was engaged in the business of picking up merchandise for various shippers for delivery to connecting carriers under contracts Hmiting his liability to $50 for each shipment. He stored his truck and contents in the defendant’s garage and, while thus stored, the contents disappeared. It was held that the plaintiff, as bailee, had a right to sue the defendant on behalf of the shippers, his bailors, but that the defendant was entitled to the limited liability enjoyed by plaintiff. The Court of Appeals of New York ruled:

' “Upon such a showing, the defendant garageman was not an interloper or stranger to the original bailment, but was in truth and fact the plaintiff’s chosen representative authorized to discharge for the time being their own responsibilities to the original bailor. Such being the fact, the garageman became an agent ad hoe and, while acting pursuant to his authority, was entitled to ‘such immunities of the principal as are not personal to the principal’ which, in this instance, was the limited liability as fixed in the original shipping documents (Restatement, Agency, § 347; Schoeffer v. United Parcel Service of N. Y., 277 App. Div. 569, 101 N. Y. S. 2d 451; Collins & Co. v. Panama R. Co., 5 Cir., 197 F. 2d 893, certiorari denied 344 U. S. 875, 73 S. Ct. 168, 97 L. Ed. 677).” (171 N. Y. S. 2d, at p. 826, 148 N. E. 2d, at p. 884.)

Other authorities supporting the rule of the Restatement are Ivy H. Smith Co. v. Warffemius, 201 Md. 367, 93 A. 2d 764 (Ct. App 1953); Herzog v. Mittleman, 155 Or. 624, 65 P. 2d 384, 109 A. L. R. 662 (Sup. Ct. 1937); Hudson’s Bay Co., Fur Sales, Inc. v. United Air Lines, 33 Misc. 2d 930, 225 N. Y. S. 2d 573 (Sup. Ct. 1962); Revillon Freres v. Cassell Trucking Co., 24 A. D. 2d 845, 264 N. Y. S. 2d 24 (App. Div. 1965); Harding v. Ohio Casualty Ins. Co., 230 Minn. 327, 41 N. W. 2d 818 (Sup. Ct. 1950); 3 Am. Jur. 2d, Agency, § 300, p. 660.

In the few reported eases found which deal with the question as to whether or not an employee or agent is entitled to the benefit of the employer’s release from liability for damage under an exculpatory clause in a lease, the employee or agent has been held entitled to the benefit thereof. In Surface v. Chicago, Milwaukee & St. Paul Railway Company et al., 191 Ill. App. 261 (App. Div. 1915), a railroad company leased property located on its right of way to a lessee for use as a granary. The lease provided that the lessee “assumed the risk of all loss and damage to the buildings. * * * which may arise from fire escaping from engines operated upon the railway of lessor. * * * that the lessor shall in no event be or become liable for any loss or damage that may occur. * * * whether said loss or damage be caused by the negligence of the lessor or its employees or otherwise.” Thé above provision by its terms granted exculpation only to the lessor. The Court held, however, that exculpation was granted to another railroad being sued for negligence in the destruction of the buildings by fire, saying:

“If the Chicago, Indiana and Southern Railroad Company permitted the ■ engine of the other defendant upon its tracks under circumstances and conditions that made it responsible for its acts, it would seem that the stipulations in the lease should apply to both companies. It seems to us that the stipulations cannot be construed as protecting merely the corporation from liability for negligence and leaving its agents and servants liable.” (191 Ill. App., at p. 268)

In Hyman v. 230 So. Franklin Corporation, 7 Ill. App. 2d 15, 128 N. E. 2d 629 (App. Div. 1955), the Court sustained the validity of an exculpatory clause in a lease relieving a landlord from liability for injuries to tenant’s property due to negligence of the landlord or his servants and, applying the principle that an agent may be privileged to do an otherwise tortious act because of a privilege held by his principal under which he acts, held that an agent who managed the premises was entitled to benefit of exculpatory provisions of the lease.

A similar result was reached, without specific comment on the point, in the recent case of Rock Springs Realty, Inc. v. Waid, 392 S. W. 2d 270, 15 A. L. R. 3d 774 (Mo. Sup. Ct. 1965), cited in Mayfair Fabrics — 2, supra, where the court sustained the validity of an exculpatory clause in a lease against loss or damage from fire and held that both the tenant and its employee, who allegedly caused the fire, were entitled to exoneration from liability under the lease. See also Annotation, “Validity, Construction, and Effect of Provision of Lease Exempting Landlord or Tenant from Liability on Account of Eire,” 15 A. L. R. 3d 786 (1967); Annotation “Validity, Construction, and Effect of Agreement, in connection with Real Estate Lease or License by Railroad, for Exemption from Liability or for Indemnification by Lessee or Licensee, for consequences of Railroad’s own Negligence,” 14 A. L. R. 3d 446 (1967); Annotation, “Effect, on Nonsigner, of Provision of Lease Exempting Landlord from Liability on Account of Condition of Property,” 12 A. L. R. 3d 958 (1967).

Supporting the rationale of these decisions is the general rule, followed by the decisions of our courts, that a release given by a third person to a master or servant serves to relieve a servant or employee from liability for negligence to the third person, and that a document of release is so construed where no rights are expressly reserved to proceed against the servant or employee. Aljian v. Ben Schlossberg, Inc., 8 N. J. Super. 461 (Law Div. 1950); United States Fidelity and Guaranty Co. v. Goetze, 108 N. J. Eq. 210 (Ch. 1931); Annotation, “Release of (or covenant not to sue) master or principal as affecting liability of servant or agent for tort, or vice versa,” 92 A. L. R. 2d 533 (1963); 35 Am. Jur., Master and Servant, § 535, p. 963; Bestatement, Torts, § 885; Restatement, Agency 2d, §§ 217 (A), 359 (B).

The rule of the Bestatement and of the other pertinent authorities referred to above is, therefore, that where a valid agreement is entered into between an employer and a third person, exculpating the former from liability to the latter for ordinary negligence, an employee is ordinarily entitled to the same exculpation as his employer, even though he is'ndt expressly named as a.beneficiary of such exculpation. The rule is' applicable here. To use the words of the Court in Miller v. Muscarelle, 67 N. J. Super. 305, 330 (App. Div. 1961); certification.denied 36 N. J. 140 (1961), “Upon consideration of the foregoing authorities and of their several underlying rationales, and in the absence of clear controlling contrary • authority in this State, we are of the view that the Restatement principles reflect New Jersey law, and we will be guided by them, as well as by our cases, insofar as they áre applicable to the issues * *

• The application of the rule is peculiarly appropriate here and conforms to the interpretation of the clause made in Mayfair Fabrics—1 and Mayfair Fabrics—2, supra, and the intention of the' contracting parties gleaned from the language which they used, viewed in the light of the circumstances in which they used it. We have held that the landlords and the tenant, acting as reasonable businessmen in the circumstances, intended to mutually exculpate each other from liabiilty for negligence and to look solely to their property insurance to recoup their property losses caused by fire. They contemplated that the cost of the insurance was to be paid for by the landlords out of rentals received from the tenant and that the tenant would pay such rentals, as well as its own insurance premiums, out of profits derived from its business operations conducted on the premises. They therefore clearly intended that insurance protection should be provided as a cost or expense of business, but that the ultimate burden of loss should fall upon the insurers.

Having so agreed and having mutually exculpated each other as principals, neither had any advantage to be gained" by retaining a right to hold the other’s employees liable as the ultimate source of payment of a business loss. Such result would be for the sole benefit of their insurers. To impoverish one of their own employees by imposing such loss upon him, without benefit to themselves, could only serve to impair the working force employed in the venture and to disrupt or adversely affect the business operations upon the premises which both parties desired to be successful. And it is clear that complications directly detrimental to each other as master or employer might ensue if the exculpation were not broad enough to cover employees. Although normally it is the master or employer who has a right of indemnity against a negligent employee under traditional concepts, the contrary is sometimes the case. As reasonable businessmen, the contracting parties might contemplate that if an employee of either were held liable for negligence in causing a fire loss but not entitled to the benefit of the employer’s exculpation, there would be distinct possibility that the acts or omissions for which the employee was held liable might be such as to entitle him to indemnification from his employer. See Hagen v. Koerner, 64 N. J. Super. 580 (App. Div. 1960).

In the usual ease where an employer is held liable for the negligent acts of an employee, the employer’s liability is a vicarious one imposed under the doctrine of respondeat superior. The Supreme Court in McAndrew v. Mularchuk, 33 N. J. 172, 191 (1960), has stated the following with respect to the underlying rationale of that doctrine:

“The responsibility of the master or principal for the negligent acts of a servant or agent, committed while performing his delegated tasks, has always existed in this State its a matter of public policy. One basis for the doctrine is that it creates an incentive to be careful in the selection, instruction and supervision of such persons. And from the standpoint of the injured third person, the master is better able to bear the burden of the losses resulting from such tortious acts by absorbing them as an incident of the operation of his enterprise.” (Emphasis added)

In 2 Harper and James, The Law of Torts (1956), § 26.1, p. 1363, the following is stated with respect to the doctrine of respondeat superior and the practicalities of the enforcement against an employer and his negligent employee of liability arising from a tort to a third person:

“Another thing to be borne in mind is that by and large vicarious liability means that A (e.g., the employer) alone pays the damages. It is true that vicarious liability on the part of A is not necessarily inconsistent with liability on the part of B \e. g., the employee!, too. Indeed in most eases both A and B are theoretically liable under the current law. Yet in the vast majority of cases plaintiff seeks satisfaction from the employer alone. It is also true that in the typical case A, when he has satisfied his vicarious liability for B’s wrong, has an action over against B for indemnity. Yet again in the vast majority of cases this right to recovery over is purely theoretical and is not pursued. * * * The fact that the ultimate onus of vicarious liability rests in practice on the employer is a good thing from several points of view. If it were passed on to the negligent workman, that would be a blow to him as crushing (financially) as the original injury was to the victim, and would have like tendency to pauperize him and his family. Employees are ill equipped to provide for the distribution of such losses through liability insurance or otherwise and do not in fact do so. The whole structure of our economic and business practices and institutions puts the employer in a better position than the employee to absorb and distribute these costs. * * *”

In Pedrick, “Civil Liability of an Employee to His Employer, His Fellow Workers, and Third Parties: United States Report,” 18 Rutgers L. Rev. 489, 505 (1964), the author stated:

“* * * As suggested in earlier passages, but with special force as regards third party claims, it is difficult to believe that the employer and employee would in this day and age expect the employee to assume the cost of losses negligently inflicted on third parties as an incident to the operation of the business. The magnitude of possible losses is beyond the employee’s means and the compensation paid to him does not include any amount earmarked for liability insurance. The costs of third party claims are typically met by the employer through insurance, with premiums regarded as a cost of the business operation. In some large enterprises the employer may act as a self-insurer and the price for his product ought to reflect a charge to cover third party claims.
The practice of employer provision of enterprise liability insurance is. socially desirable and its effect is to distribute among the consuming public the inevitable costs of third party claims arising from the conduct of the business. The added circumstance that the employer’s indemnity action has largely fallen into disuse and the general practice of liability insurance’ companies not to pursue uninsured employees on subrogated’ indemnity claims, provide a persuasive basis for the conclusion that in the employment relationship, the .employer and employee do-’not contemplate that the employee will underwrite his liability to third parties, a liability eliargeable against the enterprise. The implied contract is, rather, that the employee is to have the benefit of an insurance arrangement effected by the employer. This does not mean that the employee is under no duty to use ordinary care and skill on the job. On the contrary, he is always subject to such a duty within the limits of human frailty. But the sanction for breach of the duty to work with care is the risk of discipline or discharge rather than complete and lasting financial ruin under a crushing indemnification judgment.”

Eeasonable businessmen operating in today’s society generally expect that the ultimate burden of property losses arising from their business operations will be borne by the business, usually by insurance paid for out of the business, rather than by their individual employees. Coverage provided by the omnibus clause in automobile liability insurance policies paid for by the employer usually relieves a negligent employee of liability for automobile accidents which arise during the course of employment. As indicated above, actions by employers to enforce indemnity against their employees and actions by third persons to impose ultimate liability upon negligent employees, rather than upon their masters, in cases involving other types of business losses are now rare. See also Geiser, “Indemnity Agreements,” 88 N. J. L. J. 645, 650 (1965). A realistic interpretation of the agreement before this court is that the parties did not intend to exculpate themselves, relieving themselves of liability imposed by the doctrine of respondeat superior, and thrust the ultimate burden of their business losses on subordinate employees under some doctrine of respondeat inferior. See Renee Cleaners, Inc. v. Good Deal etc., N. J., 89 N. J. Super. 186, 190 (App. Div. 1965), certification denied 46 N. J. 216 (1966); Mayer v. Fairlawn Jewish Center, 38 N. J. 549 (1962). They intended that the ultimate burden be borne by insurance.

Jensen’s motion for summary judgment is granted.

       As is apparent from the above, the language of Section 347 was changed when the Restatement, Agency 2d, was published, but the meaning thereof has not changed. As stated in the Reporter’s Notes, Appendix, Restatement, Agency 2d'.

      “Sections 345, 346 and 347 deal with the defenses which an agent may have because he is doing an act which the principal would be privileged to do or is himself protecting the interests of the principal. Section 347 in its original form stated that ‘an agent acting in pursuance of his authority has the immunities of a principal which were not j>ersonaI to the principal.’ Reconsideration of this language has convinced the group that the word immunity was improperly used to cover situations for which other phrasing should be used. Hence the Section has been changed to read as it is at present, distinguishing between immunities, privileges, and the lack of duty or diminished duty of care which is owed to special groups of persons under some circumstances. This distinction is pointed out in § 217.” (at p. 565)

       There is not complete uniformity and consistency in the results reached in the cases dealing with the construction and effect of provisions dealing with limitation of liability and exoneration from liability for negligence as they relate to railroads, steamship companies and other carriers in their functions as such. The problem commonly arises in connection with the interpretation of exculpatory clauses in “free passes” issued by railroads. These cases present somewhat different problems and different considerations of public policy and, in some instances, involve statutory provisions. They usually involve the question whether the benefit of the limitation or exculpation shall bo granted to connecting carriers, terminals, stevedores, and the like, and do not involve conventional employer-employee situations such as we have in this case. In general these decisions support the rule of the Restatement. See Lunsford v. Cleveland Union Terminals Co., 170 Ohio St. 349, 165 N. E. 2d 3 (Sup. Ct. 1960) ;
        McKaig v. Kansas City Terminal Railway Co., 355 S. W. 2d 409 (Mo. Ct. App. 1962) ; Wilder v. Pennsylvania R. Co., 245 N. Y. 36, 156 N. E. 88, 52 A. L. R. 188 (Ct. App. 1927) ; Brown v. Terminal Railroad Assn. of St. Louis, 298 S. W. 2d 471 (Mo. Ct. App. 1957) ; Hall v. North Eastern R. Co. (1875) L. R. 10 Q. B. (Eng.) 437; Bicknell v. Grand Trunk R. Co. (1900) 26 Ont. App. Rep. 431; A. M. Collins & Co. v. Panama R. Co., 197 F. 2d 893 (5 Cir. 1952) certiorari denied, 344 U. S. 875, 73 S. Ct. 168, 97 L. Ed. 677 (1952). Compare Herd & Co. v. Krawill Machinery Corp., 359 U. S. 297, 79 S. Ct. 766, 3 L. Ed. 2d 820 (1959) ; Parker v. Bissonette, 203 S. C. 155, 26 S. E. 2d 497, 147 A. L. R. 773 (Sup. Ct. 1943) ; Annotation “Contractual exemption from or limitation of liability for injury to passenger traveling on pass as available to one other than the carrier issuing pass,” 147 A. L. R. 778 (1943).


source: Caselaw Access Project

author: Camarata, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. HERBERT TUCKER, DEFENDANT.
    Superior Court of New Jersey Law Division — Criminal
    Argued June 7, 1968
    Decided June 11, 1968.

      Mr. Angelo Bianchi, Assistant County Prosecutor for the State of New Jersey {Mr. Joseph P. Lordi, County Prosecutor of Essex County, attorney).

      Mr. George L. Schneider, Assistant Deputy Public Defender, for the defendant {Mr. Peter Murray, Public Defender, attorney).
   Camarata, J. C. C.

The defendant is under indictment for murder and made application to be admitted to bail. The state sought to introduce a statement signed by the defendant dated March .15, 1968 so as to show that “the proof is evident or the presumption great” that the defendant will be convicted of first degree murder. See N. J. Const. (1947), Art. I, par. 11.

Defendant objected to the use of the statement and contended that on an application for bail the court may not consider the defendant’s statement in a capital case without having a full hearing to determine whether the requirements and warnings of Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were met.

The purpose of bail is to assure the presence of the accused at the trial and all prior stages in the proceedings. State v. Konigsberg, 333 N. J. 367 (1960).

There are two stages in every bail hearing in a capital cause: first, to determine the admissibility of the evidence presented; and second, to determine the sufficiency of the evidence, i. e. whether the proof is evident or the presumption great that the defendant is in danger of a jury verdict of first degree murder. In both stages the burden is on the state to overcome the constitutional right to bail. State v. Konigsberg, supra.

Only where the state carries its burden in both stages should the accused’s application for bail be denied. State v. Konigsberg, supra, 374, 377 — the state may do so on affidavits and depositions. State v. Konigsberg, supra, pp. 378-379. State v. Kehr, 33 N. J. 381 (1960).

A full pretrial hearing as to the admissibility of a statement on a bail application is in contravention of State v. Yough, 49 N. J. 587, 590 (1967) and State v. Green, 49 N. J. 244 (1967). A bail application is a preliminary proceeding. In Yough., supra, the court referred to Miranda, supra and stated:

‘‘Under our long-standing practice, the determination as to the admissibility of a confession is properly made at rather than prior to trial.” (emphasis added) (at p. 590)

The full import of Miranda, supra, is not understood to apply to the admissibility of a defendant’s statement at a hearing on application for bail.

At this stage of the proceedings the court does not sit to try the merits of the case or enter into any nice inquiry as to the precise weight that ought to be given the evidence, State v. Capawanna, 3 N. J. Misc. 876, 877 (O & T 1925), nor is there a need to go into detail when considering the evidence for purposes of a bail application. Tn State v. Konigsberg, supra, the court stated:

“It is essential that the proceeding be kept in proper perspective as a preliminary one; one which cannot and should not be allowed in any way to bear upon or influence the ultimate outcome of the plenary trial or the evaluation of the resulting verdict.” lEmphasis added), (at p. 378)

Considering the preliminary nature of this application for bail, the liberal use of evidence in hearings in connection therewith and the policy against fragmenting the trial by a pretrial hearing on the admissibility of the statement, all the state need do is demonstrate by prima facie proof that the requirements of Miranda, supra, were met before the defendant signed the statement.

The state need not demonstrate or offer any proof as to the voluntariness of the statement. That must await the trial. State v. Green, supra.

Detective Acocella a .detective in the Homicide Squad of Essex County testified for the state. There was admitted into evidence a signed “preamble ,to signed state-: ments (Miranda warning).” The court concludes that the state has demonstrated by prima facie evidence that it can prove at the trial that the safeguards and requirements of Miranda, supra were knowingly and intelligently waived by the defendant. The sworn statement of the defendant was then reviewed and considered by the court from which it appears that the proof is evident that defendant is in danger of a jury verdict of murder in the first degree.

Defendant’s application for bail is denied.


author: Kentz, J. J. & D. R. C.

text:
    STATE OF NEW JERSEY IN THE INTEREST OF A. A. STATE OF NEW JERSEY IN THE INTEREST OF R. A.
    Juvenile and Domestic Relations Court Union County
    Decided June 28, 1968.

      Mr. Eoward Schwartz for petitioners {Mr. Francis J. Simone, assigned attorney for A. A.; Mr. Schwartz, assigned attorney for R. A.)

      Mr. Dominick A. Mirabelli, County Attorney, for the County of Union.

      Mr. Richard A. Mink, Assistant Prosecutor, for the State {Mr. Leo Kaplowitz, Union County Prosecutor, attorney).
   Kentz, J. J. & D. R. C.

Francis J. Simone and Howard Schwartz, attorneys at law of the State of New Jersey, were assigned by this court to represent the above-captioned juveniles under the provisions of R. R. 6 :3-4. Messrs. Simone and Schwartz are partners engaged in the general practice of law under the firm name of Simone- and Schwartz. They entered -their appearances and diligently represented the juveniles at the hearings. Upon the conclusion of - the hearings they both filed petitions for the allowance of counsel fees, serving notice on the office of the Treasurer of Union County as well as the prosecutor. At the hearing on the petitions this court granted their application to consolidate their respective motions.

Prior to the decision of our Supreme Court in State v. Rush, 46 N. J. 399 (1966), compensation was allowed to assigned attorneys only in murder cases. See N. J. S. 2A :163-1. This statute was consistently given a narrow construction, as in State v. Donaldson, 36 N. J. 45 (1961), where the attorney, assigned to represent a defendant charged with murder was denied compensation even though he had begun to prepare the matter, because the grand jury failed to return an indictment. Compensation was specifically denied in a juvenile matter in State in re Steenback, 34 N. J. 89, 103-104 (1961), although the offense charged would have been murder were it not for the provisions of N. J. S. 2A :4-14.

In Rush the Court held that all attorneys assigned to represent criminal defendants were entitled to compensation. It based its decision on the heavier burden of such assignments due to rapidly changing concepts which had greatly increased the demand on counsel. Because of the decision of the United States Supreme Court in In Re Gault, 387 U. S. 1, 87 Ct. 1428, 18 L. Ed. 2d 527 (1967), it is clear that many of these same burdens will have to be assumed by assigned counsel in juvenile matters. See State in Interest of L. B., 99 N. J. Super. 589 (J. & D. R. Ct. 1968).

On page 412 of the Bush decision the Court recognized the possible need of assigned attorneys in juvenile matters but it carefully declined to make any decision with respect to compensation in such matters at that time. Petitioners argue that In Re Gault, supra, by requiring the assignment of attorneys for indigent juveniles in cases where there is a possibility of a commitment to an institution, in effect put juvenile cases in the same category as adult criminal cases with respect to compensation to assigned attorneys. I fail to agree with this reasoning. The mere fact that the United States Constitution requires that a particular class of individuals (indigent) be given attorneys’ advice by the State when they are unable to afford it does not of itself mean that such attorneys be compensated. Attorneys were required for years to represent non-murder criminal defendants in this State without any compensation for their time and effort. State v. Horton, 34 N. J. 518 (1961). It was only when this burden became grossly unfair that our Supreme Court acted.

Further, I ain not satisfied that this court has the power to order the payment of reasonable fees for the' defense of indigent juveniles. The Juvenile and Domestic Relations Court is strictly a creature of statute. Mattox v. Mattox, 43 N. J. Super. 111 (App. Div. 1956). All of its power is derived from the Legislature. In contrast, our Supreme Court is a creature of the Constitution of this State. The distinction is significant. In Bush the court predicated its power to award compensation to assigned attorneys on Art. VI, Sec. II, par. 3 of the New Jersey Constitution of 1947, which provides in part that the Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of the persons admitted. This court does not have such power.

Finally, even if I were to assume that this court did have the power, justice would require us to defer the decision to a court having state-wide jurisdiction. Since this issue relates to a policy matter, it is conceivable that varying practices could exist in different counties. It would be patently unfair for attorneys in some counties to be compensated while others were not. The duty to represent indigent juveniles, or adults in criminal matters, lies on all members of the Bar. Any right to compensation should be uniform throughout the State. An assigned attorney’s right to receive a fee for representing a juvenile in the Juvenile and Domestic Relations Court must be derived from the Supreme Court under its rule-making power or by an act of the Legislature.

Attorneys have been assigned to represent juveniles in ever-increasing numbers since the Gault decision was rendered May 15, 1967. At the present time in this county attorneys can expect to be reassigned to a juvenile ease within nine months of receipt of the prior assignment. Some cases call for a minimum amount of preparation, others require a great amount of time. Hearings may last less than a half an hour, or be carried over the course of several full days. Some juveniles have only one charge alleged against them, while others may have several. All of these varying factors create a hardship and in many cases an unfairness upon the assigned attorney which can be corrected only by just compensation.

While I am deeply cognizant of the injustices resulting from the assignment of counsel to represent juveniles without compensation in the Juvenile and Domestic Relations Court, I must deny the application for allowance of fees in these matters for the foregoing reasons. An order shall be entered accordingly.


author: Kolovsky, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANGOLO GEORGE ORLANDO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1968
    Decided June 14, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Daniel J. O’Hern argued the cause for appellant (Messrs. Abramoff, Apy & O’Mern, attorneys).

      Mr. Thomas L. Taccarino, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Defendant appeals from judgments of conviction entered on jury verdicts finding him guilty on each of two counts of an indictment charging him with inducing and forcing two children under the age of 16 to do and to submit to acts tending to impair the morals of the said children, in violation of N. J. S. 2A :96-3.

Each count of the indictment charged defendant with a separate and distinct offense; the first, alleged to have occurred on April 15, 1966, involving a nine-year-old girl, A; the second, alleged to have occurred on June 16, 1966, involving a seven-year-old girl, K.

Defendant concedes that charging the two offenses in separate counts of one indictment was permissible under R. R. 3 :4 — 7, which provides:

“Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged, whether high misdemeanors or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

While there was neither charge nor proof that the offenses were “based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan,” both were “of the same or similar character.”

Defendant’s principal contention on appeal is that under the circumstances of this case the trial court abused its discretion and committed prejudicial error in denying his pretrial motion under R. R. 3 :5-7 to order the two counts tried separately. We agree and reverse.

R. R. 3 :5-7, entitled “Relief from Prejudicial Joinder” provides:

“If it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in an indictment or accusation or by such joinder for trial together, the court, in its discretion, may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.”

The rule recognizes, as do our cases, the possibility of harm and prejudice in the joint trial of unrelated ofEenses, see State v. Baker, 49 N. J. 103, 105 (1967), certiorari denied 389 U. S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967); State v. Coleman, 46 N. J. 16, 24 (1965), certiorari denied 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966), and affords a method of relief therefrom. However, application for a severance is to be made before trial; “after a trial of several charges without objection, it takes a strong showing of probable prejudice in fact to warrant a finding of 'plain error’.” State v. Baker, supra, at p. 105.

Here, there was a pretrial motion for a severance which the court undertook to hear and decide on the merits after denying defendant’s motion for an adjournment of the trial so that that application and other motions might be presented formally.

The rules contemplate that “[w]here prejudice appears, the defendant may readily obtain a severance or other suitable relief. See R. R. 3 :5-7.” State v. Coleman, supra, at p. 24. Further, as the court noted in State v. Baker, supra:

“We are not indifferent to the possibility of harm, and we do not suggest that a motion for severance or an objection to joinder of unrelated offenses should be regarded lightly.” (at p. 105)

Unfortunately, it is impossible to ascertain from the record whether defendant’s motion was or was not “regarded lightly.” The court’s ruling denying the motion is embodied in the single word “Denied,” without any accompanying statement of reasons. We are afforded no explanation of why it was deemed an appropriate exercise of discretion to deny severance in circumstances indicating, at least prima facie, serious prejudice to defendant and tactical advantage to the State if the two charges were tried together.

Defendant and the parents of the children, who were not related, lived in neighboring homes. The State contended that the offenses were perpetrated during visits to defendant’s home while only the child and defendant were present — • the incident involving the nine-year-old shortly after Easter, that involving the seven-year-old some two months later, the indictment approximating the latter date as June 15. Neither child said anything to anyone about what had allegedly occurred until June 25 when, while K, A and A’s sister and brother, and perhaps also K’s brother, were engaged in making potholders, the stories were told by A and K, resulting in a report to the parents of the children who, in turn, went to the police.

When the motion for a severance was made, it was apparent that the only evidence to be adduced by the State in support of each charge was the testimony of the one child involved therein. There was not to be, nor was there evidence of a “fresh complaint.” Cf. State v. Balles, 47 N. J. 331 (1966), certiorari denied 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). Yet, in reality, although the jury was told to consider each count separately, the effect of the joinder was to give the State two witnesses instead of one to overcome defendant’s denial of either offense and, in view of the abhorrent nature of the offense, to multiply the chances that defendant would be convicted. Purther, the prejudice to he anticipated from joint trial of the two offenses Was confirmed by what in fact did occur at the trial.

There was no compelling valid reason why the State should insist, over defendant’s objection, that the two charges,' involving offenses allegedly committed some two months apart, be tried at one time. No appreciable saving of time resulted from the joinder of the two distinct offenses for trial rather than offering the proofs specifically applicable to each offense at separate trials, each of which would he of short duration.

Only one of the several other arguments advanced by defendant for reversal calls for our comments, and that one only because the problem will recur at the new trial.

Defendant offered into evidence certain work and pay records of the New Jersey Highway Authority, his employer, for the two-week periods ending April 19 and June 20, 1966. The authenticity of the records was verified by the Authority’s engineer of maintenance. They evinced that defendant had worked a full eight-hour day on each of the days shown therein. An objection to the admission of the records was sustained. The trial transcript does not reveal the reason for the court’s ruling or the basis for the State’s objection to the offer. The State argues before us that since the records do not reveal the particular hours worked by defendant on any day, they are irrelevant and immaterial. They are clearly relevant; their weight is for the jury.

The records should have been admitted into evidence; they were probative, negative to some degree the fortuity of defendant’s presence at home during working hours of the periods involved in the charges. They were admissible as “business entries.” Cf. Rules of Evidence, Rule 63 (13). The method and circumstances of preparation of the records were properly proven. The “sources of information” justified admission. Although the number of hours listed were compiled from information given by defendant himself, he was duty-bound to report hours of work, cf. Fagan v. City of Newark, 78 N. J. Super. 294 (App. Div. 1963), and there was evidence of independent verification by the Authority’s landscape engineer.

The judgments of conviction are reversed and the cause remanded for a separate trial on each count of the indictment.

       The problem of joinder and severance of offenses and defendants in criminal cases has been the subject of a recent study by the American Bar Association Project on Minimum Standards for Criminal Justice and a report by its Advisory Committee on the Criminal Trial (November 1967). The rule recommended by the Committee authorizing joinder of offenses (§ 1.1) is substantially identical with R. R. 3:4-7. So, too, as under our rules, defendant’s motion for severance normally would have to he made before trial. § 2.1 However, while R. R. 3:5-7 leaves the matter of severance in all cases to the discretion of the trial judge upon a showing of prejudice, the rule relating to severance of offenses recommended by the Advisory Committee (§ 2.2) provides that when the two or more offenses had been joined “solely on the ground that they are of the same or similar character,” defendant has an absolute right to a severance on demand and that in other cases, the court may order a severance either upon the application of defendant or the prosecutor if the severance is “deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.”


author: Collester, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANDREW A. VALERIANI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 20, 1968
    Decided June 17, 1968.

      Before Judges Coxeord, Coeeestek and Labkecque.

      Mr. Peter P. Cascone appeared on behalf of appellant.
    No one appeared on behalf of respondent.
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant was convicted in the Municipal Court of Hamilton Township of leaving the scene’ of an accident in violation of N. J. S. A. 39 :4-129. On appeal following a trial de novo in the County Court the conviction was affirmed and a fine of $25 and costs were imposed. He appeals.

The facts set forth in the agreed statement in lieu of record show that at about 11:20 p. m. on July 10, 1966, defendant entered his automobile parked in his driveway and backed it across the street into the driveway of Mr. and Mrs. Bitler. It struck the rear, of Mr. Bitter’s automobile which, in turn, collided with Mrs. Bitler’s car — both of which were parked in the driveway. At the time of the accident Mrs. Bitler was standing in her doorway watching defendant, whom she knew and who had been a neighbor for four years.

Mrs. Bitler testified that following the impact defendant drove his car forward, then backed it up so he could make a turn into the street and drove off without stopping. She said both Bitler cars were damaged by the collision.

. Defendant testified that as he left his house to enter his-ear he observed Mrs. Bitler standing in the doorway of her home. As he backed across the street into the Bitler driveway he felt the impact of “bumpers tapping.” He said he observed Mrs. Bitler still standing in her doorway, pulled his car forward and saw with the aid of his backup lights that there was no damage, then drove away. He further testified that no one approached him about the accident until a month and a half later when Mr. Bitler showed him a dent in the bumper of his car. Thereafter he bought a new bumper for Mr. Bitler.

The County Court judge found that defendant made no attempt to stop at the scene of the accident in order to assess the damage caused by the collision or to notify the owners of the damaged cars. He said defendant’s testimony that he assumed Mrs. Bitler knew who had hit the cars did not fulfill the requirement of the statute. He concluded that the provisions of N. J. S. A. 39 :4-129 were violated even though the collision did not occur on a public highway. This appeal followed.

The “hit-and-run” statute, N. J. S. A. 39 :4-129, in effect on the date of the accident (it has been subsequently amended) provided in pertinent part:

“Thp driver of any vehicle knowingly involved in an accident resulting in injury or death to a person or damage to property shall immediately stop the, vehicle at the scene of the accident, give his name and address and exhibit his operator’s license and registration certificate of his vehicle to the person injured or struck and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with * *’’ (Emphasis added)

Defendant first alleges the trial court erred in denying his motion to dismiss the complaint on the grounds that (1) Mrs. Bitler knew he was the driver of the car involved in the accident, and (2) he did not know that the Bitler cars sustained damage.

We are satisfied that both contentions are without merit. The purpose of the hit-and-run statute is to prohibit an automobile driver involved in an accident from evading his responsibilities by escaping or departing before his identity is made known. State v. Gill, 47 N. J. 441, 443 (1966).

It is undisputed that defendant knew his automobile struck Mr. Bitier’s car, that he made no attempt to comply with the requirements of the statute and drove away. The fact that he saw Mrs. Bitler in her doorway and assumed that she had witnessed the collision and knew that he was the operator of the car is no defense to his failure to comply with the mandatory requirements of the statute. Cf. Commonwealth v. Joyce, 326 Mass. 751, 97 N. E. 2d 192 (Sup. Jud. Ct. 1951). Moreover, his belief that the Bitler car had sustained no damage was no justification for his failure to comply with the statute. Having knowledge that he had collided with the car, it was incumbent upon him to stop and make an investigation to determine whether, in fact, the Bitter car had sustained damage. Whether the damage was slight or great is immaterial, so long as there has been damage. See Lo Biondo v. Allan, 132 N. J. L. 437, 438-439 (Sup. Ct. 1945); cf. State v. Herbst, 2 Conn. Cir. 236, 197 A. 2d 550 (App. Div. 1963).

Defendant’s second point is that the trial court erred in not dismissing the complaint because the accident occurred on private property, namely, the driveway on the Bitter property. He claims the hit-and-run statute applies only to conduct of a motor vehicle operator following an accident on the public highway. Although N. J. S. A. 39 :4-129 does not itself contain words which would restrict its application to violations occurring on the public highways, defendant contends that the section of the statute in question should be read as if those words appear therein because of the prefatory statement contained in N. J. S. A. 39 :4-l. We do not agree that N. J. S. A. 39 :4-129 is so limited in its application. Cf. State v. Sisti, 62 N. J. Super. 84, 86-87 (App. Div. 1960).

The defendant contends that State v. Sisti supports his position. In that case this court held that N. J. S. A. 39:4-50 (driving a motor vehicle while under the influence of intoxicating liquor), which also contains no language limiting its application to violations which occur on the public highway, was applicable to a motorist who, while intoxicated, operated her car in a gwasi-public shopping center parking lot. (See also State v. Gillespie, 100 N. J. Super. 71 (App. Div. 1968)). Defendant argues that the implication to be drawn from Sisti is that if it were not for the public use of' the property where the offense took place, the court would have held that N. J. S. A. 39 :4-50 was inapplicable. We do not agree. In both Sisti and Gillespie the court was called upon to decide only the narrow issue of the application of the the statute to quast-public places. It did not pass upon the broad question of whether the statute applied to offenses which occurred on private property not ordinarily used by the public.

Although the appellate courts of our State apparently have not passed on the applicability of the hit-and-run statute to accidents occurring on private property, courts in other jurisdictions have uniformly held that such statutes do apply. State v. Gallagher, 102 N. H. 335, 156 A. 2d 765, 767-768, 77 A. L. R. 2d 1167 (Sup. Ct. 1959); People v. Bell, 197 N. Y. S. 2d 511 (Cty. Ct. 1960); Salazar v. State, 145 Tex. Crim. R478, 169 S. W. 2d 169 (Crim. App. 1943). See Annotation, “Hit-And-Run Statute — Applicability,” 77 A. L. R. 2d 1171 (1961); cf. People v. Stansberry, 242 Cal. App. 2d 199, 51 Cal. Rptr. 403 (D. Ct. App. 1966); Meadows v. State, 211 Miss. 557, 52 So. 2d 289 (Sup. Ct. 1951); State v. Smith, 264 N. C. 575, 142 S. E. 2d 149, 151 (Sup. Ct. 1965).

Ordinarily, if a motor vehicle statute makes no reference to offenses occurring on a public highway, it is usually held that the statute applies generally throughout the state. State v. Gallagher, supra. 156 A. 2d, at p. 767. The purpose of the statute, as hereinbefore stated, is to prohibit the automobile driver involved in an accident from evading his responsibilities by escaping or departing before his identity is made known. State v. Gill, supra. We are of the opinion that in view of the salutary purpose of the statute, the Legislature intended to provide the same protection to all persons who suffer damage or injury, regardless of where the motor vehicle accident occurs. If the Legislature had intended to apply the statute only to accidents occurring on the public highways, it undoubtedly would have so indicated.

Affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE C. RILEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1968 —
    Decided June 17, 1968.
    Before Judges Sullivan, Eoley and Leonard.

      Mr. Ralph A. Real, assigned counsel, argued the cause for appellant.

      Mr. Thomas L. Yaccarino, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   Per Curiam.

The order of the Law Division denying defendant’s motion to dismiss certain indictments then pending against him is affirmed for the reasons expressed by Judge Simmill and reported at 97 N. J. Super. 542 (Law Div. 1967).


author: Pee Ctjeiam:.

text:
    ORADELL VILLAGE, ESQUIRE ESTATES, INC., POVERSHON CONSTRUCTION CO., INC., SOUTHFIELD HOMES, INC., BROOKLAWN GARDENS INC., NEW JERSEY CORPORATIONS, AND RICHARD GEIGER AND WILSON KAPLAN, t/a WAYNE VILLAGE, PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF WAYNE, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1968 —
    Decided June 17, 1968.
    Before Judges Sullivan, Foley and Leonard.

      Mr. Oscar R. Wilensky argued the cause for appellants (.Messrs Cole & Oeany, attorneys).

      Mr. Jerome A. Vogel argued the cause for respondent (Mr. Salvatore J. Ruggiero, attorney).
   Pee Ctjeiam:.

The judgment is affirmed for the reasons expressed in the opinion of Judge Mountain reported at 98 N. J. Super. 8 (Ch. Div. 1967).

On this appeal, in addition to the argument that the separate classification of multi-tenant dwellings for rate making purposes as embodied in the amended ordinance is arbitrary, discriminatory and unreasonable, plaintiffs contend that the rates imposed by the amended ordinance were discriminatory as to them inasmuch as they were charged a greater amount per gallon for allowable gallonage than the rate imposed upon an owner of a single dwelling. This issue was not raised by the complaint, nor presented to Judge Mountain, and consequently was not decided by him. We therefore do not pass upon it.

Affirmed.


author: Mariano, J. S. C.

text:
    JOSEPH T. CLARKE, JR., PLAINTIFF, v. AMOS BROWN, DEFENDANT. LESLIE C. LYON, PLAINTIFF, v. AMOS BROWN, ET AL., DEFENDANTS. JOHN BALANETSKY, JR., PLAINTIFF, v. AMOS BROWN, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division.
    Decided June 5, 1968.

      Mr. Joseph A. Maressa argued the cause for Plaintiff Joseph T. Clarke, Jr. (Messrs. Maressa & Console, attorne3rs).

      Mr. E. Eurlburt Tomlin for defendant Amos Brown (Messrs. Tomlin & Lewis, attorneys).

      Mr. Joseph W. Clarke, Jr. for plaintiff John Balanetsky {Messrs. Field, Trimble & Clarke, attorneys).
   Mariano, J. S. C.

Plaintiff Balanetsky by motion seeks to intervene and, in the alternative, to restrain the Unsatisfied Claim and Judgment Fund (Fund) from making payment. The motion is submitted to the court for its determination on the following agreed stipulation of facts. The matters in brackets are supplied by the court.

“1. On September 1, 1965, plaintiff Joseph T..Clarke, Jr. was the owner and operator of a motor vehicle involved in an accident with a motor vehicle owned and operated by defendant Amos Brown. Plaintiffs Leslie Lyon and John Balanetsky, Jr. were passengers in the motor vehicle of Joseph T. Clarke, Jr. Notices of Intentions were timely filed, pursuant to N. J. S. A. 39 :6 — 65, with the Unsatisfied Claim and Judgment Fund on behalf of Joseph T. Clarke, Jr., Leslie Lyon and John Balanetsky, Jr.

“2. Suit was instituted on behalf of Joseph T. Clarke, Jr. against Amos Brown [September 29, 1965], Docket No. L-2655-65 [Superior Court, Law Division, Camden County]; and on behalf of Leslie Lyon aaginst Amos Brown and Joseph T. Clarke, Jr. [October 19, 1965] in October, 1965, [in the same Court], and defendants were duly served.

“3. In April, 1966 [May 5, 1966], Judge W. Orvyl Schaliek ordered the above two eases consolidated.

“4. In February, 1967 [January 25th] suit was instituted on behalf of John Balanetsky, Jr., against Amos Brown and Joseph T. Clarke, Jr. (Superior Court, Law Division, Camden County) Docket No. L — 15758-66 and defendants were duly served.

“o. On March 23, 1967 Judge W. Orvyl Schaliek denied a motion to consolidate all three cases on the grounds that said application was out of time.

[From the statements of counsel it appears that defendant Clarke in the Balanetsky suit made a motion to consolidate all three cases, which motion was denied on March 23, 1967. There is no such order in the file. The pleadings indicate that Balanetsky received notice of said motion. No counter-motion to intervene was made by Balanetsky.]

“6. The plaintiff, Leslie Lyon, settled his claim with the Unsatisfied Claim and Judgment Fund for the sum of $3,250 in November 1967 [judgment entered November 29, 1967].

[From the oral argument the court was informed that judgment in the sum of $3,250 in favor of Lyon was entered on November 29, 1967, and an order to compel the Fund to pay was entered in January 8, 1968 and the same has been paid.]

“7. Plaintiff, Joseph T. Clarke, Jr., obtained a judgment by jury verdict on January 8, 1967 against Amos Brown in the amounts of $2,660 for property damages and $12,500 for personal injuries. [December 15, 1967].

[The motion to intervene and the motion by plaintiff Clarke to compel the Fund to pay were heard on April 5, 19(58, at which time the court entered an order compelling the Fund to pay Clarke the statutory amount and at the same time withheld execution of the said order until the disposition of Balanetsky’s motion to intervene or to restrain payment.]

“8. Plaintiff, John Balanetsky, Jr., has not, to date, recovered a judgment, however, it is hereby stipulated and agreed that his claim would have a value in excess of $6,750, the balance remaining from maximum amount recoverable, $20,000, after a deduction of $10,000 for Joseph T. Clarke, Jr. and $3,250 for Leslie Lyon, but provided this stipulation is to be without prejudice to future procedural conduct of the Fund’s defense of the Balanetsky claim, and it is to be limited to the needs of resolving a presently contemplated procedure to resolve claimed priorities to the Unsatisfied Claim and Judgment Fund’s $20,000 maximum.”

Plaintiff Balanetsky seeks to intervene pursuant to B. B. 4:37-1(6) which reads as follows:

“Upon timely application anyone shall be permitted to intervene in an action: * * *
(b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof; (Italics mine)

The main purpose of plaintiff’s motion is to restrain the Unsatisfied Claim and Judgment Fund from making payment of the statutory limit of $10,000 to Clarke, Jr. (N. J. 8. A. 39:6-73 (c) (1)) and the $3,250 to Lyon until his claim, i. e. Balanetsky’s, has been determined either by settlement or jury verdict so that he may share on a pro rata basis in the limited fund available under the provisions of N. J. S. A. 39:6-73 (c) (2) which is $20,000.

R. R. 4:37-1(b) is patterned after Federal Rule 24(3) prior to its amendment in July 1966. Neither rule grants an absolute right to intervene. They provide that application to intervene must be “timely.” The question of timeliness cannot be considered in vacuo. Whether an application to intervene is timely does not depend solely upon the amount of time that may have elapsed since the institution of action by the moving party, although of course that is a relevant consideration. See 4 Moore’s Federal Practice, p. 98. Other factors which must be considered in connection with timeliness are whether the granting of the motion would entail appreciable prejudice to the other parties or the court, and at what stage in the total proceedings the motion to intervene is made. State v. Lanza, 74 N. J. Super. 362, 372 (App. Div. 1962), affirmed 39 N. J. 595 (1963), appeal dismissed, certiorari denied 375 U. S. 451, 84 S. Ct. 525, 11 L. Ed. 2d 477 (1964), rehearing denied 376 U. S. 935, 84 S. Ct. 697, 11 L. Ed. 2d 655 (1964).

Balanetsky was injured in a,n accident which happened on September 1, 1965 and instituted suit on January 25, 1967. The motion to intervene was made on February 19, 1968, almost 13 months after institution of the suit, and heard on April 5, 1968. Within the said 13-month period, to wit, on December 15, 1967, plaintiff Clarke obtained a judgment based on a jury verdict in the sum of $12,500 for personal injuries. Within the same period plaintiff Lyon settled with the Fund for the sum of $3,250, and judgment was entered on November 29, 1967; an order to pay the same was executed on January 8, 1968. This judgment has been paid by the Fund.

Dismissal of a motion for intervention under R. R. 4:37 — 1 is within the discretion of the trial court and untimelinoss is sufficient ground for denying the same. Tesseyman v. Fisher, 231 F. 2d 583 (9 Cir. 1955). Also, intervention after judgment is not often granted. 4 Moore’s Federal Practice, p. 99.

Clarke, Jr. and Lyon had obtained final judgments prior to the filing of the motion. A judgment is the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. Black’s Law Dictionary 4th ed. p. 977; Bullock v. Bullock, 52 N. J. Eq. 561, 27 L. R. A. 213 (E. & A. 1894).

A final judgment is one which disposes of the subject matter of the controversy or determines the litigation as to all the parties on its merits. France & Canada S. S. Co. v. French Republic, 285 F. 290, 294 (2 Cir. 1922).

The first and most obvious consequence of a judgment is that it establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement. The right to use the process of court for its enforcement is a consequence which the law attaches to it. West Jersey Title & Guaranty Co. v. Industrial Trust Co., 27 N. J. 144, 150 (1958). Rights established by judgments of judicial tribunals are generally regarded as resting upon the firmest foundations, and this, mainly, because of the confidence reposed in their inviolability. Ibid.

The rights acquired by the plaintiffs Clarke, Jr. and Lyon are property rights which cannot be taken without due process of law. That such rights are property rights is unquestioned, and that they cannot be taken without due process of law is equally well settled. Collins v. Welsh, 75 F. 2d 894, 99 A. L. R. 1319 (9 Cir. 1935). The characterization of a final judgment being a property right is substantiated in Shade v. Colgate, 3 N. J. 91, 95 and 96 (1949) wherein it was stated, “* * * when the time within which an appeal may be brought has expired, it ripens into an unchangeable contract, and becomes property, which can be disposed of or affected only by the act of the owner, or through the power of eminent domain. It is then beyond the reach of legislation affecting the remedy, because it has become an absolute right, which cannot be impaired by statute. * * *”

To permit Balanetsky to intervene at this stage of the proceedings would appreciably prejudice the rights of Clarke and Lyon. What the movant seeks is the right to share on a pro rata basis with Clarke and Lyon in the maximum statutory amount of $20,000. N. J. S. A. 39 :6-73(c) (2). In accordance with the stipulation it is agreed that Balanetsky’s claim has a value either by settlement or jury trial in excess of $6,750. It is clear, therefore, that the total amount of all three judgments would exceed the $20,000 statutory limitation. I shall assume only for the purpose of illustration that the settlement or judgment of Balanetsky’s action amounts to $15,000; the total amount of all three judgments would then equal $30,750. Using this figure as a basis for the pro rata distribution of the $20,000 statutory limit would result in reducing plaintiff Clarke’s judgment of $12,500 to approximately $8,000, and plaintiff Lyon’s judgment of $3,250 to approximately $2,000. Clearly, this would be prejudicial in that it would reduce the valuable property rights which each possesses through their final judgments. In addition, I think it is fair to assume that Lyon, who has long ago received the $3,250, has paid therefrom counsel lees, medical expenses, etc., and further, that the net sum which he received has since been put to useful purposes.

In light of the agreed factual situation I conclude that Balanetsky’s application to intervene should be denied because it was not timely made as required, and further, that to allow intervention at this late stage of the proceeding would inflict appreciable prejudice on plaintiffs Clarke and Lyon.

The denial of plaintiff Balanetsky’s motion to intervene necessarily precludes any need to determine his alternative motion, which seeks to restrain the Fund from making payment to Clarke and Lyon until his, i. e., Balanetsky’s, claim is determined. Since movant’s alternative motion raises an issue of first impression in our State and elsewhere, the court will proceed to adjudicate the same.

No authoritative decision or treatise bearing on this issue has been found after thorough research by the court and counsel.

Our courts have frequently stated that the underlying purpose of the Unsatisfied Claim and Judgment Fund, N. J. S. A. 39:6-61 et seq., is not to make every claimant whole but to provide some basic measure of relief from claimant’s absorption of the entire economic loss occasioned by the accident. Dixon v. Gassert, 26 N. J. 1, 8 (1958); Wormack v. Howard, 33 N. J. 139 (1960).

It has also been stated that the purpose of the Eund is to mitigate hardships caused by highway accidents for which uninsured and impecunious motorists are liable. Dietz v. Meyer, 79 N. J. Super. 194 (App. Div. 1963).

Where more than one person in any one accident is injured or killed, the Fund’s liability is clearly limited by the following legislative mandate:

“N. J. S. A. 39:6-73. Limitation on amounts payable from fund. No order shall be made for the payment, and the treasurer shall make no payment, out of the fund, of
(e) The unsatisfied portion of any judgment which, after deducting $100.00 therefrom if the judgment is for damage to property, exceeds
(2) The maximum amount or limit, subject to such limit for any 1 person so injured or killed, of $20,000.00, exclusive of interest and costs, on account of injury to, or death of, more than 1 person, in any 1 accident, * *

See also N. J. S. A. 39 :6-69(6). This financial limitation is applicable in the instant case since all three plaintiffs were injured in a single accident.

Balanetsky’s contention that he is entitled to a prorated portion of the $20,000 requires this court to look to the statute to find whether there is anything therein which will justify taking charge of the fund for the purpose of marshalling it for the benefit of all persons who may now, or who might at some future time have an interest therein. From a reading of N. J. S. A. 39 :6-73 (c) (2) and other pertinent sections of N. J. S. A. 39:6-61 et seq. I do not find any language which would indicate a legislative intent authorizing such action by the court. The Fund merely proposes to give to those who suffer injury through the negligence of an uninsured motorist some basic measure of relief through a special fund.

Had the Legislature intended that the statutory amount should be shared proportionately by all persons who, within the time fixed by the statute of limitations, might sue and recover judgments against the uninsured driver, it would have definitely said so, or it would have provided that the amount should be for the benefit of every person injured to the extent of $10,000 per person. See Turk v. Goldberg, infra. To hold that the statutory amount is for the benefit of all injured persons pro rata would make it necessary for the Fund to ascertain, before it could safely pay anyone, how many persons might have claims therein, and what the total amount of judgments which might be presented would be. Settlements have a very high priority in our judicial system. In fact the act itself provides for the making of settlements. N. J. S. A. 39 :6-72. Good faith settlements are encouraged in order to avoid or terminate litigation, and ofttimes a settlement by the Fund reduces the amount which it is called upon to pay. The practical effect of Balanetsky’s contention would be to bar any settlement by the Fund, at least where more than two persons are injured in a single accident.

Where the wording of a statute is clear and explicit the court is not permitted to indulge in any interpretation other than that called for by the express words set forth. Duke Power Co. v. Patton, 20 N. J. 42 (1955). The duty of the court in construing statutes was clearly set forth by Mr. Justice Francis in Canada Dry Ginger Ale, Inc. v. F. & A. Distrib. Co., 28 N. J. 444 (1958) :

“When language employed by the Legislature is clear and unambiguous, the interpretive function of the judicial branch of government is simple and confined. The law should be applied as written. Under our tripartite system of government, we cannot concern ourselves with matters of legislative wisdom or policy. If the constitutional power exists to promulgate the particular fiat, it must be accepted even if personally we believe it to be a legislative mistake. Nor can the judiciary under the guise of interpretation read into an enactment a more limited policy than that which is clearly projected into action by the words of the lawmakers.” (at p. 458)

Once a claimant recovers a judgment against an uninsured motorist is a court of this State, he must comply with certain statutory provisions before his claim will he satisfied by payment from the Fund. After the termination of all proceedings, including appeals, the judgment creditor must file a verified claim in the court where the judgment was rendered; N. J. S. A. 39:6-69. The court then considers this application summarily and if it is satisfied that the requirements of N. J. S. A. 39:6-70 have been met, it then issues an order pursuant to N. J. S. A. 39 :6-71 directing the treasurer to pay the judgment.

What the Legislature has definitely and clearly stated is that one who establishes his claim by judgment against an uninsured driver shall proceed to collect from the Fund in accordance with the above provisions. Had the Legislature intended that the statutory amount should be shared proportionately by all persons who might sue and recover judgments against an uninsured driver it would have said so. To hold that the Fund is for the benefit of all injured persons pro rata would be contrary to the provisions of the statute respecting collection of judgments. This court cannot expand the provisions of a statute beyond the plainly expressed legislative intent. Eckert v. New Jersey State Highway Department, 1 N. J. 474 (1949). What plaintiff movant seeks, therefore, is a modification of the statute. Such a request should be addressed to the Legislature, the appropriate body for such a revision, and not to the courts. Mountain Lakes Board of Education v. Maas, 56 N. J. Super. 245 (App. Div. 1959), affirmed per curiam 31 N. J. 537 (1960), certiorari denied 363 U. S. 843, 80 S. Ct. 1613, 4 L. Ed. 2d 1727 (1960).

Admittedly, the issue involved is novel. However there are several adjudicated cases in New Jersey, the rationale of which is applicable.

In a case decided by our former Court of Chancery, Turk v. Goldberg, 91 N. J. Eq. 283 (Ch. 1920), the facts were as follows. The Jitney Act, L. 1916, p. 283 (now N. J. S. A. 48:16-23 et seq.), required the owner of a licensed auto bus to file an insurance policy in the sum of $5,000 with a designated official in order to insure against loss imposed upon the owner in any action for damages for bodily injury or death resulting from an accident. Subsequent to just such a mishap a succession of suits was brought, some of which were reduced to judgment at the time plaintiff, who had not yet reduced her claim to judgment, brought suit against the insurer to restrain it from paying any more judgments, $2,200 having been paid by that time. Plaintiff alleged, without substantial dispute, that the several suits were likely to total $30,000, and since the policy was issued for the benefit of all parties injured, the proceeds should be paid into court or to a receiver pending final judgment in all the suits to assure pro rata distribution. In denying relief the court proceeded on the theory that since plaintiff’s claim was not yet reduced to judgment, it did not have the status of a lien on the proceeds, and that had the Legislature anticipated such a situation and intended a pro rata distribution, it would have said so expressly.

The case of Ward Trucking Corporation v. Philadelphia National Insurance Company, 4 N. J. Super 434 (App. Div. 1949), involved the destruction by fire of property consigned to plaintiff, an interstate carrier, and delivered by plaintiff to the premises of the City Line Express Company where the fire occurred. Plaintiff sued City Line and obtained a judgment for $2,999.69, which was not satisfied. Subsequently, plaintiff brought this action against City Line’s carrier and obtained a judgment for the policy limit of $2,000. One of the issues raised by defendant on its appeal was whether plaintiff’s recovery should be prorated with the other shippers whose property was also destroyed in the fire. The insurance policy had a $2,000 limit for all loss but was silent as to any provisions for prorated distribution. ' The court held that the defendant was not entitled to limit plaintiff’s recovery to a pro rata portion of the $2,000. The court said:

“It seems to us that in view of the omission from the endorsement of any express provision for prorating, the plaintiff’s diligence, in contrast to the inaction of the other shippers or consignees, entitles it in this proceeding to a full recovery against the defendant.” (at p. 440.)

In Liguori v. Allstate Insurance Co., 76 N. J. Super. 204 (Ch. Div. 1962), an automobile operated by Alfred Liguori was involved in a collision with a vehicle driven by Harold A. McDermott on January 26, 1962. As a result thereof Liguori’s wife, who was a passenger in his ear, and Nicholas Bonelli Jr., one of the passengers in the McDermott automobile, were killed. Shortly thereafter, actions were instituted by Liguori both individually and as administrator ad prosequendum of his wife’s estate, and by Thomas Pederson, Jr., who was the other passenger in the McDermott vehicle. The' McDermott automobile was covered by an Allstate Insurance policy in the amount of $10,000 for each injury and $20,000 for each accident. Prior to any disposition of the Liguori and Pederson claims, Allstate negotiated a settlement with the parents of decedent Bonelli in the amount of $8,000. Liguori then instituted proceedings directing defendant Allstate to show cause why it should not be restrained from consummating the $8,000 settlement with the Bonelli estate, and why it should not institute an interpleader action for the purpose of evaluating and rateably distributing the proceeds of the MeDermott insurance' policy. One of Liguori’s contentions was that unless consummation of the settlement was prevented by the court, a serious reduction of available proceeds to all prospective claimants would occur resulting in irreparable harm to plaintiff.

The court concluded that the order to show cause be discharged. Relying in part on Turk v. Goldberg, supra, it held that a pro rata distribution' was, not required. The court stated that the non-judgment claimant Liguori had no right to interfere with the settlement distribution merely because such distribution would diminish the proceeds available under the policy. The court further indicated that this was especially true where to hold otherwise would interfere with the judicially favored policy of avoiding unnecessary expense and delay through settlement practice.

Applying the rationale of the foregoing cases to the instant case, it must be concluded that there is no right of a claimant to intervene in the distribution merely because such payment diminishes the fund. Thus pro rata distribution in the circumstances under consideration is not required.

By reason of the foregoing, that part of the order of the court dated April 9, 1968, restraining the payment by the Treasurer of New Jersey to plaintiff Clarke of the statutory amount of $10,000, is hereby vacated.


author: Per Curiam:

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DUKE E. MOORE, SR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1968 —
    Decided June 19, 1968.

      Before Judges Goudmann, Kilkenny and Carton.

      Mr., 'Bernard Rudd argued the cause for appellant (Messrs. Rudd, Aolcerman, Breitlcopf Goodman, attorneys; Mr. Jerrold D. Goldstein, on the-brief).

      Mr. Alan Siller, Assistant County Prosecutor, argued the cause for respondent (!Mr.' Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was' delivered

Per Curiam:

Defendant was found guilty in the Newark Municipal Court of being a disorderly person, in violation of N. J. S. 2A :170-28, and was given1 a 60-day jail sentence (suspended), fined $58,' and placed on probation for six months. He appealed to the Essex County Court. The matter wa& heard on. the record made at the municipal court hearing, and resulted in an affirmance. The present appeal followed.

N. J. S. 2A :170-28 provides:

“Any person wlio by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, * * * is a disorderly person.”

Defendant argues that he did not violate the statute because he was neither noisy nor disorderly. Additionally, he contends that his arrest and conviction as a disorderly person violated his constitutional rights of free speech and assembly.

The basic facts are not in dispute. On Juno 12, 1965 the Newark Planning Board held a public meeting in the city council chamber to determine whether a certain area of Newark was “blighted” and therefore eligible for an urban renewal program involving the construction of the New Jersey College of Medicine and Dentistry. Just prior to the opening of the hearing, board chairman Booker recognized defendant as floor manager for a majority of those in attendance. He also outlined the procedure that would govern the hearing.

At the time of the incident in question one George Bichardson, who had been speaking for some time, had the floor. Miss Beverly Taylor arose for a point of information. Although the speaker agreed to yield for the purpose of entertaining the question, chairman Booker refused to permit the interruption. At this point defendant went to the microphone to quote Robert’s Rules of Order as supporting Miss Taylor’s request. The chairman ruled him out of order. When Moore continued with his reference to Robert’s, the chairman again ruled him out of order, stating that Moore was not following the procedure set by the board for the hearing — the board was not using Robert’s. Moore persisted in his efforts to explain what Robert’s held, so that the chairman had to rule him out of order throe more times.

Moore then said that he wanted to appeal the ruling to the entire board. Booker denied the request. Moore insisted that the chair had no legal right to deny such an appeal, that he would not yield, and that “if yon don’t know parliamentary procedure, ask someone; that is the least you can do. Don’t make a fool out of yourself and us, too. That is what you are doing.” Booker asked him to take his seat, and when Moore continued he again informed him that he had been overruled. Moore persisted in saying he had a right to appeal the rulings of the chair, and this resulted in Booker’s repeatedly requesting that he take his seat and that he yield the' floor.

■■ Booker’s remarks were temperate but firm. When Moore said, “I am asking the chairman to disqualify himself for being mentally incompetent to sit in the chair as chairman,” Booker replied, “We are going on. You are ruled out of order. You will have your opportunity to speak,” and “Sir, if the chair is wrong, you will have your recourse. We have ruled that you are out of order.”

: Finally, the chairman asked that the microphone be cleared so that the meeting could proceed, a request three times repeated. When Moore did not relinquish the microphone, the chairman called a brief recess. Following the recess Moore resumed from where he had left off. When Booker again asked him to leave the microphone and ruled him out of order, Moore replied, “I would suggest that you are going. ■ to. have to order that policeman, the police department to remove me.” The minutes of the meeting show that a disturbance ensued, and Moore was led from the council chamber by a police officer who placed him under arrest.

The episode just described consumed from 12 to 15 minutes of the meeting, with Miss Taylor and a Harry Wheeler standing; at the microphone- and occasionally interposing remarks. -

■ - -The policeman who took Moore from the council chamber testified at the municipal court hearing and described much of ■ what has been detailed above. When Moore would not relinquish the microphone, the. officer went up to him and told him that Booker was in charge of the meeting and that he would have to comply with the chairman’s directions. Moore maintained that he was in the right. The officer then said that he was leaving him with no alternative; if he persisted, he would have to remove him and probably arrest him. When Moore did not leave the microphone the officer said, “There is nothing else I can do,” and asked Moore to accompany him. Moore offered no resistance.

The officer also testified that during the course of the controversy there was noise in the place, the meeting was disrupted, and when he removed Moore there was quite a bit of noise. The aisles had become congested when he went up to the microphone to speak to Moore, and as he was removing him from the council chamber the aisles became very congested. The chairman had at no time instructed him to arrest Moore.

All the testimony was to the effect that Moore was never noisy. However, the statute speaks of “noisy or disorderly conduct” which disturbs or interferes with the quiet or good order of an assembly. Moore’s conduct clearly violated the statute; although he was not noisy, he certainly disturbed and interfered with the conduct of the hearing. His disregard of chairman Booker’s repeated rulings and requests that he leave the microphone, his insistence upon his point of order, and the ad hominem remarks he addressed to the chair, disrupted the meeting to the point where the assembly became noisy, Miss Taylor and Wheeler joined in the dispute and, finally, those in the audience took to the aisles.

Although the facts in State v. Smith et al., 46 N. J. 510 (1966), certiorari denied 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966), are distinguishable from those in the present, what was said there points the way to our conclusion. Smith also involved a public hearing on a proposed urban development project, held by the governing body in the municipal council chamber. While a citizen was speaking against the proposal there was a disturbance in the area where defendant Callender was sitting, the second such occurrence. The council president called for quiet so that the speaker might be heard and warned that otherwise he would have to ask the persons involved- to leave or be removed. Callender answered, “We haven’t started to disrupt your meeting yet,” or “We haven’t done anything yet.” The president, understanding that “yet” carried a threat-of further disturbance, directed a police officer to escort Callender from the room, whereupon Callender locked arms with someone seated next to him' and went limp to the floor. He was taken out' of the chamber and, as he lay in the corridor, his five co-defendants sat down around him, arms and legs intertwined. ' Callender was convicted in municipal court of violating N. J. S. 2A :170-28 and 29. His appeal to the County Court resulted in an’affirmance. On further appeal he contended, among other things, that N. J. S. 2A :170-28 did not apply and, in any event, his behavior was protected by the Pirst' Amendment.

■ The Supreme Court held against him on both counts. True, Callender’s resistance to the efforts to remove him interfered with the meeting in a degree somewhat greater than here. Nonetheless, defendant’s persistence for almost a quarter of an hour in refusing to accept the rulings of the chair, or to leave the microphone and resume his seat, was such conduct as disturbed and interfered with the quiet and good order of the planning board hearing.

Although the Chief Justice spoke in Smith of Callender’s physical resistance, what he said is applicable to this case: the decision of a chairman may not be tested by resisting his repeated rulings to bring order back into the meeting.

“* * * Government could not govern if its vital processes could thus be brought to halt. Again, no court would tolerate such interference with its proceedings; the need is the same in the legislative chamber, at the State and at the local level. The chair must have the power to suppress a disturbance or the threat of one * *
(at page 517)

. Dealing with Callender’s claim that his behavior was protected by the Pirst Amendment, the Chief Justice said:

“Here there was no denial of an opportunity to protest. On the contrary the meeting was called to the very end of permitting all to have their say, for or against the urban redevelopment proposal. Callender was not denied a chance to be heard. Rather he was denied a right he seemingly claimed to interfere with the right of others to hear and be heard. He was not ordered removed because he expressed views which displeased the presiding officer. He was ordered out because, in response to the president’s call for quiet, he threatened even greater disruption of this public meeting. “Whether the forum be the courtroom or the chamber of the legislature itself or of a political subdivision of the State, there must be order. It is frivolous to suggest the First Amendment stands in the way of that imperative.” (at pages 516-517)

Defendant relies on Cox v. State of Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). As the Chief Justice observed in Smith, that case is distinguishable on its facts and can give a defendant like ours small comfort. The majority in Cox said:

“* * * The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. * * *” (379 U. S., at page 554, 85 S. Ct., at page 464, 13 L. Ed. 2d, at page 484)

Although the facts in United States v. Woodard, 376 F. 2d 136 (7 Cir. 1967), differ from those before us, it may appropriately be quoted as supporting defendant’s conviction:

“* * * Public hearings of every character, executive, legislative, and judicial, are most often ‘public’ as to physical presence, but not as to participation. As such, they must be conducted with decorum. If each spectator were privileged to shout or even speak at will, pandemonium would likely result. “When, as here, activity engaged in by a spectator prevents the orderly continuation of the hearing, it falls within the prohibition of the statute. Cf., State v. Smith, 46 N. J. 510 * * (at pages 139-140)

Defendant’s conduct violated N. J. S. 2A :170-28. It was not protected under the First Amendment. The judgment of conviction is affirmed.