author: Belopolsky, J. 0. 0.

text:
    FRANCES YOUNG AND KENNETH E. YOUNG, PLAINTIFFS, v. BUNNY BAZAAR, INC. AND GARY HUGHES, DEFENDANTS.
    Superior Court of New Jersey Law Division
    September 18, 1969.

      Mr. 'Foster 0. Ergood argued the motion for plaintiffs (Messrs. Asbell & Ambrose, attorneys).

      Mr. G. Wesley Manuel, Jr. argued the motion for defendants (Messrs. Kisselman, Devine, Deighan & Montano, attorneys).
   Belopolsky, J. 0. 0.

(temporarily assigned). This matter came before the court on motion of the attorney for defendants to dismiss plaintiffs’ complaint pursuant to B. B. 4:12-2 because of the lack of jurisdiction over the person of defendants due to insufficiency of service of process.

The case arises out of an accident which occurred on July 8, 1966. The complaint was filed on July 2, 1968. On July 11, 1968 summons was issued and served upon the Few Jersey Director of the Division of Motor Vehicles pursuant to N. J. 8. A. 39:7-l eb seq. because both defendants were nonresidents of the State of Few Jersey. However, the certified mail sent by the Director of Motor Vehicles to defendants was returned marked “unknown” for one defendant and “unclaimed” for the other. On September 6, 1968 service pursuant to N. J. 8. A. 39 :7-3(c) was initiated and proved to be similarly unsuccessful. Fumerous other attempts by plaintiff to locate either defendant also proved futile.

On Eebruary 17, 1969 plaintiff directed a letter to Crawford & Company, the insurance adjusting firm for defendant Bazaar’s insurance carrier. A copy of the summons and complaint was enclosed for Crawford & Company’s perusal. Settlement negotiations were then entered into with the adjusting firm and continued up until the time of this motion. On April 25, 1969 a motion to dismiss for lack of prosecution was denied. On May 16, 1969 the sheriff of Philadelphia County, Philadelphia, Pennsylvania, served the summons and complaint on George Chapman of Crawford and Company, allegedly pursuant to B. B. 4:4-4(j) and 4:4-5(a). On August 1, 1969 Crawford and Company moved under B. B. 4:14-3 to dismiss the complaint for lack of jurisdiction over the person of defendants due to insufficiency of service of process. Plaintiff, in opposing the motion, relies on Rudikoff v. Byrne, 101 N. J. Super. 39 (Law Div. 1968). In that ease defendant, a New York resident, moved without notifying the New York Department of Motor Vehicles of his new address, as required by New York Law. After similar diligent efforts to locate defendant were unsuccessful, service was made upon defendant’s insurance carrier by registered mail sent to the carrier’s New York office.

The court found service insufficient on two grounds. First, B. B. 4:4-4(j) had not been complied with because “a copy of the summons and complaint was not sent to Byrne 'addressed to his dwelling house or usual place of abode.’ ” 101 N. J. Super., at 34. Secondly, the court found that B. B. 4:4-5 (a) had not been satisfied because service was not made by any of the persons described in the rule. Id., at 36.

However, the court felt that justice dictated that plaintiff should not be deprived of his right to prosecute the action, especially since it was defendant’s own breach of a legal duty which caused the difficulty in service. On grounds of equitable estoppel and the demands of justice, the court allowed plaintiff to serve process again, this time complying with the rules.

This left the question of whether service upon the insurance carrier could be made under New Jersey law and consistent with due process.

Buie B. B. 4:4-4(j) (now B. 4:4-4(e)) reads

* * ~ where service is attempted to be made by registered mail but the same is not effected * * * then service may be made outside the State as provided in Bule 4:íh-5(a) upon any person upon whom service is authorized by the law of this State or of the state wherein service is effected, (emphasis added)

The court found that under New York law, specifically, Keller v. Rappoport, 21 N. Y. 2d 490, 289 N. Y. S. 2d 161, 236 N. E. 2d 451 (Ct. App. 1968), service could be made icby mailing a copy of the summons and complaint to the defendant’s last-known address, and (2) by delivering copies thereof to the defendant’s insurance carrier.” 101 N. J. Super., at 36. Thus R. R. 4:4-4(j) was satisfied. The court did not decide whether such service would be authorized solely by New Jersey law in the absence of the New York decisions.

The court also found that the New York procedure was consistent with due process. In Keller the court relied on Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), wherein the Supreme Court said “ fit has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits’ and does not render the service unconstitutional.” 289 N. Y. S. 2d, at 171, 236 N. E. 2d at 458, quoting 339 U. S., at 317, 70 S. Ct., at 658.

In Walker v. City of Hutchinson, 352 U. S. 112, 77 S. Ct. 200, 1 L. Ed. 2d 178 (1956), the Supreme Court, in commenting on Mullane, said

That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with the circumstances and conditions. We recognized that in some cases it might not be reasonably possible to give personal notice, for example, when people are missing or unknown. [289 N. Y. S. 2d, at 171, 236 N. E. 2d, at 458, quoting 352 U. S., at 115, 77 S. Ct., at 202.]

The Keller court then noted four factors that go into a decision of what kind of notice will be constitutionally adequate in a given situation: (1) plaintiff’s need, (2) the public interest, (3) the reasonableness of plaintiff’s efforts to inform defendant, and (4) the availability of other safeguards for defendant’s interest. In Rudilcoff the New Jersey Supreme Court approved of this analysis and found the elements satisfied in that case.

On the issue of plaintiff’s need, the court in Keller quoted from Olberding v. Illinois Cent. R. R. Co., 346 U. S. 338, 341, 14 S. Ct. 83, 98 L. Ed. 39, that “ ‘The potentialities of damage by a motorist, in a population as mobile as ours’ are so widespread ‘that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defend himself.’ ” 289 N. Y. S. 2d, at 172, 236 N. E. 2d, at 459. That statement was made in 1953. The vast increase in the use of the automobile and in accidents arising out of that use only reinforce its applicability today.

The public interest of New Jersey is apparent. New Jersey compels nonresidents to remain subject to suit here by the use of N. J. 8. A. 39 :1—1 ei seq., and reliance on the driver’s address as registered in his own state. Also there is a policy to provide a source of recovery for injured plaintiffs by recourse to the Unsatisfied Claim and Judgment Fund.

On the question of plaintiff’s efforts to inform defendant, the court in Keller said it could not “ignore the fact that it was no lack of diligence on the plaintiffs’ part but, rather, the conduct of the defendants themselves, their removal without informing anyone of their whereabouts, which prevent them from receiving more direct service of process.” 289 N. Y. S. 2d, at 112, 236 N. E. 2d, at 459. Defendant knows of the accident, that people were injured, and that a claim may be made against him. He can keep in touch with either his insurance carrier or the injured victim in order to protect himself against not receiving actual notice. Thus the fourth element of safeguarding the defendant is also satisfied. As the court said

Due process does not require that defendants derive any advantage from the sedulous avoidance of any of these measures. Indeed, in an automobile case, no defendant need be without notice unless he chooses and wants to be; many an injured plaintiff, however, will go without recompense if, in a proper case, the standards of informative notice may not be relaxed. [101 N. J. Super., at 41, quoting 289 N. Y. S. 2d, at 173, 236 N. E. 2d, at 459.]

The court in Keller also found it relevant that either the insurance carrier or the Motor Vehicle Accident Indemnification Corporation, the Hew York equivalent of the Unsatisfied Claims and Judgment Fund, if the insurance carrier could deny liability under the policy, e. g., for failure to cooperate, were “the real parties in interest in all but form.”

While Zander v. Martine, 66 N. J. Super. 310 (Cty. Ct. 1961), holds that under the language of the nonresident motor vehicle statute a complaint and summons forwarded by the Director of Motor Vehicles to the nonresident defendants must be actually received by them, service upon a nonresident motorist is not limited to that one method. N. J. 8. A. 39:7-l provides, “This chapter shall be construed as extending the right and manner of service of process upon nonresidents, and not as limiting any other lawful manner for such service.” The court in Rudilcoff found the procedure there used to be lawful” and consistent with due process.

Therefore, while the procedure employed in this case is constitutional, Rudikoff v. Byrne does not make it a provision authorized by Hew Jersey rules, but merely approves its use, if authorized by another state in which defendant is served under R. R. 4:-4-5(a). In order to be valid the source attempted must be authorized by some provision of our rules. Is there then any rule under which this procedure can be validated? R. 4:4^4(i), effective September 8, 1969, provides as follows:

As Provided by Court Order. If service cannot be made by any of tbe modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.

The comment to this new rule states that “the utility of such a provision is significant in circumstances where usual modes of service are either impossible or unduly oppressive upon the plaintiff or where the defendant successfully evades service of process. Cf, e. g., Rudikoff v. Byrne, et al.” Therefore, under B. 4:4—4 (i) service on the insurance carrier is authorized if provided by court order.

In this case, as in Rudikoff, the four criteria set up in Keller have been met. Plaintiff’s efforts to locate and serve the defendants have been as diligent as in either of those cases.

While R. 4:4-4(i) was not in effect when service was initially made on the insurance adjuster here, the demands of justice and the principle of equitable estoppel noted in Rudikoff warrant the court’s giving plaintiff further opportunity to serve the defendants by serving a copy of the summons and complaint upon the carrier itself, Eeliable Insurance Company of Ohio.

The fact that plaintiff here has dealt with an insurance adjuster rather than the carrier itself, is not significant, especially if the carrier is served. In Rudikoff plaintiff dealt with an adjuster in the negotiations. In Lerman v. Church, 54 Misc. 2d 402, 282 N. Y. S. 2d 622 (Sup. Ct. 1967), where plaintiff had dealt only with an adjuster for the carrier, the court held that service on the carrier was valid. In that case, as in this one, the carrier was aware of the accident all along.

As the carrier to be served under the court’s order represents only defendant Bazaar, the service authorized will be effective only against that defendant.

The motion to dismiss is hereby denied.


source: Caselaw Access Project

author: Dalton, J. S. C.

license: Public Domain

text:
    T & W ICE CREAM, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. CARRIAGE BARN, INC., A NEW JERSEY CORPORATION, WILLIAM H. NUCKEL AND CALVIN F. SERGENT, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, v. JOHN H. TERWILLEGER AND JOHN L. WERSHING, JR., THIRD-PARTY DEFENDANTS.
    Bergen County Court Law Division
    October 22, 1969.

      Mr. Robert W. MacQuesten appeared for plaintiff.

      Mr. Roger W. Breslin, Jr. appeared for defendants and third-party plaintiffs (Messrs. Goodman, O’Dea & Breslin, attorneys).
   Dalton, J. S. C.

This is an action for deficiency on a promissory note, executed by Carriage Barn, Inc., in favor of National Community Bank of Rutherford, New Jersey.

In 1965 William H. Nuckel and Calvin E. Sergent, individual defendants in this case, were the principals of a corporation known as Hinchman Hills Corp. which was the owner of a tract of land on Route 302 in Oakland, New Jersey. In May 1965 Nuckel and Sergent joined with third-party defendants John H. Terwilleger and John L. Wershing, Jr., both of whom were also stockholders and officers in the plaintiff T & W Ice Cream, Inc., to form a new corporation called Carriage Barn, Inc.

Carriage Barn, Inc. was formed for the purpose of carrying on an ice cream parlor business. Hinchman Hills Corp. contributed the use of the land on Route 202 in Oakland and T & W Ice Cream, Inc. invested $50,000 on improvements and equipment. The officers of Carriage Barn were Terwilleger, president; Sergent, vice president; Nuckel, treasurer and Wershing, secretary. Registered agent of the new corporation was Sidney Y. Stoldt, Jr., and his office at 215 Main Street, Ridgefield Park, New Jersey was designated as the principal office of the corporation.

On May 22, 1967 Carriage Barn executed a promissory note in the amount of $8,983.41 in favor of National Community Bank of Rutherford, New Jersey, and as collateral simultaneously executed a security agreement in favor of the bank covering certain furniture and equipment used in the business. Payment of the obligation was personally guaranteed by all four of the officers of Carriage Barn, Inc.

Sometime after execution of the promissory note to the National Community Bank, the ice cream business carried on by Carriage Barn failed and the corporation became defunct. On November 20, 1967 plaintiff T & W Ice Cream paid off the promissory note for $6,908.36, the amount then due, and at the same time received an assignment from the National Community Bank of all its right, title and interest in the security agreement which had accompanied the note.

Subsequently Terwilleger, acting on behalf of T & W Ice Cream, went to the Carriage Barn premises in Oakland and in the presence of defendant Nuckel repossessed the furniture and equipment which had been pledged as collateral under the security argeement on May 22, 1967.

On April 10, 1968 plaintiff T & W Ice Cream, by its president, E. F. Wakefield, addressed a letter to Carriage Barn, Route 202, Oakland, New Jersey. This letter purported to give notice to Carriage Barn that plaintiff intended to sell at private sale the collateral which had been previously repossessed and to apply the proceeds against the unpaid balance on the promissory note. Though the letter was addressed to Carriage Barn, at Route 202, Oakland, New Jersey, it was actually delivered by Wakefield, president of T & W Ice Cream, to Terwilleger, president of Carriage Barn, at Terwilleger’s office, 1184 Ridgewood Avenue, Ridge-wood, New Jersey, which is the office of T & W Ice Cream.

No notice of the scheduled private sales was given to Carriage Barn at its principal office, nor was any notice given to either of defendants Nuckel or Sergent, although Terwilleger attempted to phone Nuckel twice and Sergent once, but none of these calls was completed. Then, on April 24, May 14 and June 24, 1968, the collateral was sold to various purchasers (with whom T & W Ice Cream had been doing business) for a total price of $2150.

Following the private sales, plaintiff T & W Ice Cream instituted this suit against Carriage Barn, Nuckel and Sergent to recover the deficiency. Action against Nuckel and Sergent is based on their personal guarantee of the promissory note which had been executed by Carriage Barn on May 22, 1967.

Thereafter, defendants Nuckel and Sergent filed a third-party complaint against Terwilleger and Wershing as co-guarantors of the note, demanding contribution on any judgment which may be entered against them on the complaint of T & W Ice Cream. Both Terwilleger and Wershing admit the allegations of the third-party complaint and their liability thereunder.

I

Defendants’ defense is that, as accommodation endorsers, they are entitled to notice from the secured party of the private sales. The court finds that defendants were entitled to notice of the private sales and that this was not given.

The collateral in this case is “equipment,” as defined by N. J. S. A. 12A:9-109(2) which states: “Goods are * * * ‘equipment’ if they are used or bought for use primarily in business. * * *” Since this is so, N. J. S. A. 12A :9-504 (3) controls the disposition of the collateral after default:

Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral. * * *

Since there is no evidence in this case that the equipment is perishable ox threatens to decline speedily in value, or that there is a recognized market for this type of equipment, the statute requires that notice be given to the debtor. The term “debtor” is defined by N. J. S. A. 12A:9-105(1) (d) :

‘Debtor’ means the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts, contract rights or chattel paper. * * *

It would seem from this statute that the accommodation endorsers in this ease would fit within the definition of debtor.

Carriage Barn was a defunct corporation, and this was known by all the officers of Carriage Barn, including Terwilleger. Since Terwilleger knew and since he was an officer of T & W Ice Cream, knowledge of the defunct corporation was imputed to T & W Ice Cream, and being half-owner of the corporation they should have had actual knowledge. Knowing the corporation was defunct, T & W Ice Cream was, in effect, proceeding against the individual guarantors of the security agreement. The exact words of the guarantee signed by the individual guarantors in the security agreement between Carriage Barn and plaintiff’s assignors was: “Payment and performance of the above obligation absolutely, unconditionally and continuously guaranteed.”

This language of the guarantee is almost exactly the same as that of the definition of a debtor (a debtor being a person who “owes payment or other performance of the obligation secured”). Therefore, the court finds that the accommodation endorsers in this case are debtors under N. J. S. A. 12A:9-105(1) (d) and thus entitled to notice. We must determine whether they did, in fact, receive such notice.

II

There is no doubt that Carriage Barn received notice because its president, Terwilleger, received notice, and there also was no doubt that Terwilleger individually received notice. The question is whether the notice given to Terwilleger and Carriage Barn can be imputed to its officers and the individual endorsers, Nuckel and Sergent. We must determine whether this notice can he imputed, because the notice to Nuckel and Sergent was not actually given in any manner — this is admitted by Terwilleger. Plaintiff claims that notice given to the president of the debtor corporation is imputable to the corporation. He relies on N. J. S. A. 12A:1-201 (26) which says:

A person ‘notifies’ or ‘gives’ a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it.

But the statute goes on to say that

A person ‘receives’ a notice or notification when
(a) it comes to Ms attention; or
(b) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

In the ordinary case the notice to the president would be imputed to the corporate debtor, and since the individual endorsers are members of the corporation, the notice could also be imputed to them.

In A. J. Armstrong, Co., Inc. v. Janburt Embroidery Corp., 97 N. J. Super 246 (Law Div. 1967), in an action by an assignee of a promissory note for a deficiency judgment against certain accommodation parties to the note, the court said regarding the question of notification of the sheriff’s sale that:

N. J. S. 12A:9-504(3), N. J. S. A. provides that only the debtor [Janburt Embroidery Corp] or other secured party need receive notice, [at 263]

The only testimony in that case on that point was to the effect that Tollman, who was president of the assignor corporation, told LoOurto, president of the debtor corporation, that the sale would take place in two weeks. The court goes on to say:

N. J. S. 12A:1-201 (26), N. J. S. A. states that a person “receives’ notice or notification when it comes to his attention. A. J. S. 12A:1-201(30), N. J. S. A. defines ‘person’ to include an individual or organization. N. J. S. 12A:1-201(28), N. J. S. A. defines organization to include a corporation. [Thcreforel BoCurto, as president of Janburt, received notice from Vollman of the impending sale. Under ordinary agency principles this knowledge must be charged to the corporate debtor.

The court therefore concluded that defendants were personally liable as accommodation endorsers.

It must be pointed out that although in Armstrong the endorsers were members of the defendant corporation, as in the instant case, that case can be distinguished because there the assignee corporation and its officers were not involved at all in the ownership or operation of defendant corporation, as is the situation in the present ease. Here, the assignee of the note (T & W lee Cream) was also an owner of a half-interest in the debtor corporation (Carriage Barn). Tn addition, the notice of the private sales was given by T & TV Ice Cream to the president of Carriage Barn, Terwilleger, who was also an officer of T & W lee Cream.

These facts raise a strong probability of a conflict of interest problem. Yet T & W Ice Cream, aware of the probability of a conflict of interest, failed to send notice of the private sales either to the corporate premises of Carriage Bam or to its registered agent or registered office. Because of this the court finds that the notice cannot fit within the provisions of N. J. S. A. 12A:1-201 (26), The reason is that with the probability of a conflict of interest, it cannot be said that T & W Ice Cream, in giving their notice, took “such steps as may be reasonably required to inform the other party in the ordinary course.” Therefore, because of the failure of the notice to fit within the provisions of N. J. S. A. 12A:1-201 (26) and because of the requirement of N. J. 8. A. 12A:l-203 that “Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement,” the court holds that the notice given by T & W Ice Cream to Carriage Barn cannot be imputed to the accommodation endorsers, Nuckel and Sergent.

Ill

Having decided that plaintiff has not complied with N. J. S. A. ISA:9-504 (3), we must then determine the secured party’s liability. N. J. S. A. 12A:9-507, entitled “Secured Party’s Liability for Eailure to Comply With This Part,” states:

(1) If it is established that the secured party is not proceeding in accordance with the provisions of this Subebapter disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Subchapter. * * *

Since Sergent and Nuckel were entitled to notice and did not receive it, it follows that they have a right to recover from the secured party any loss caused by the failure to give notice. A problem presents itself here. The problem is how to determine what damages defendants Nuckel and Sergent have sustained by the failure of plaintiff T & W Ice Cream to give notice of the private sales. The usual measure of damages in such a case is the difference between what the collateral was sold for and what it would have been sold for had Nuckel and Sergent been given notice. So, we must determine what the value of the collateral would have been. The burden of proving that the value of the collateral was received at the sale is on the secured party where there is noncompliance with the notice of sale provisions of N. J. S. A. 12A :9 :504 (3). Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S. W. 2d 538 (Sup. Ct. 1966); Weaver v. O’Meara Motor Co., 452 P. 2d 87 (Alaska Sup. Ct. 1969).

Plaintiff failed to meet this burden. His proof as to the value of the goods was that he had contacted a friend, Charles Bess, who, Terwilleger said, knew something about the equipment although he was not actually in the business of selling such equipment, and asked him about the value of it. This is insufficient to establish the value of the equipment because, even if Bess were an expert, the court did not have the benefit of Ms testimony.

Since the burden of proving market value has not been met, the court must then rely on a presumption which arises in situations like this. The presumption is that where a secured party repossesses and resells collateral, and notice of the resale is required and not given, the burden of proving the value of the collateral in a deficiency action is on the secured party. Railing this, the value is presumed to be at least the amount of the debt. Norton v. National Bank of Commerce of Pine Bluff, supra; Barker v. Horn, 245 Ark. 315, 432 S. W. 2d 21 (Sup. Ct. 1968). The court will indulge in this presumption because it would be manifestly unjust to allow plaintiff to profit by its own wrongdoing.

The court thus finds that the collateral was worth at least the amount Nuckel and Sergent owed on the note and security agreement as accommodation endorsers. Therefore, they are discharged on the note and security agreement. Judgment is ordered in fovor of defendants Nuckel and Sergent.


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

text:
    JOHN R. VAN DYKE, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, AND NINA VAN DYKE, PLAINTIFF, v. HERBERT A. BOLVES, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND JAMES M. MORGAN, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued October 6, 1969
    Decided October 30, 1969.

      Before Judges Goldmans, Lewis and Matthews.

      Mr. Thomas R. Rumana argued the cause for respondent and cross-appellant (Mr. Ira D. Dorian, of counsel).

      Mr. Milton D. Liebowiiz argued the cause for appellant Bolves (Messrs. Liebowiiz, Iirafie & Liebowiiz, attorneys).

      Mr. Peter Peletz, Jr. appeared for respondent James M. Morgan (Mr. Philip G. Geibel, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

John R. Van Dyke sued for personal injuries and property damage arising from an accident when a truck owned by defendant Bolves and driven by defendant Morgan crashed head-on into his automobile on Harristown Road, Glen Rock, N. J. His wife sued for loss of consortium. The jury returned a unanimous verdict of $40,000 for Mr. Van Dyke and $1,500 for his wife against both defendants. Bolves moved for a new trial on the grounds that the verdict was excessive and against the weight of the evidence; the trial judge, over objection, had charged the jury on the New York Motor Vehicle Law as being applicable to the case and, further, the judge had refused to charge as requested by Bolves. The motion was denied, the judge stating that Bolves’ request to charge related solely to the question of agency, which issue had been eliminated from the case; that the charge on the New York Motor Vehicle Law was given because the car was registered in New York and controlled by New York law as far as permission was concerned, and that the verdict was not against the weight of the evidence. He refused to set aside the $1,500 verdict in favor of Mrs. Van Dyke, holding that it was reasonable. However, insofar as the verdict for John Van Dyke was concerned, he said:

* * * j don’t think the «$40,000 shocks the court, but I think on the basis of the injuries sustained and the pecuniary losses amounting to $3,201.95 that the $40,000 is rather generous.

Accordingly, he entered an order sustaining Mrs. Van Dyke’s $1,500 verdict, reducing her husband’s $40,000 verdict to $25,000, and ordering that plaintiffs make known to the court within ten days whether they accepted the reduced verdict and, if not, Van Dyke was to have a new trial as to damages only.

Van Dyke rejected the reduced verdict and notified the court he was moving for leave to appeal. Leave was denied. Defendant Bolves then appealed from so much of the order as granted plaintiffs (sic — Mrs. Van Dyke should not have been included) a new trial on damages only. Van Dyke cross-appealed from the reduction of his verdict.

The accident took place in New Jersey and the Van Dyke car was registered here. Bolves was a resident of Suffern, N. Y. He was a roofer-contractor and his shop was located in Airmont, N. Y. Morgan was Bolves’ employee and a New York resident. The truck driven by Morgan was registered in New York and insured there. The main factual issue at the trial was whether Morgan was driving the truck with Bolves’ permission, express or implied. The assignment judge for the vicinage had, before trial, ordered that the jury was to make a special finding of fact as to whether Morgan drove Bolves’ truck with the latter’s permission.

Bolves testified that he noticed the truck was missing at about 2:15 p.m. He said that the keys were usually left in the ash tray, seat or ignition of the truck. Bolves went in search of Morgan and, after making two stops locally in New York, headed for Paterson shortly after 3 p.m. He passed the truck as it was driving north, turned around in pursuit and finally caught up with it. Bolves further testified that he blew his horn, shouted to get Morgan’s attention, and got out of his car. Morgan saw him and drove off. Bolves’ car stalled, and he decided to let Morgan go. Shortly before 4 p.m. he again met up with the truck when he saw it coming up behind him. Bolves pulled over into a small parking lot and tried flagging Morgan down. Morgan did not stop; Bolves took up the pursuit and witnessed the accident. It was not until about 4:50 p.m. that Bolves reported to the local New York police department that the truck had been stolen.

Van Dyke’s father testified that 12 days after the accident he and his wife went to the Bolves home where they spoke to Bolves and his wife. Mrs. Bolves, in the presence of her husband, told the Van Dykes that Morgan had worked for them a long time. “He was a nice boy, he seemed like one of the family. * * * He never gave them any trouble and he was a good worker.”

Morgan did not appear for depositions or at the trial, and the interrogatories he answered were correctly ruled to be not binding as to Bolves.

Based upon what was admitted in evidence, the jury could well have resolved the issue of permission by concluding there was implied permission, despite Bolves’ contention that permission had not been asked by Morgan, nor was permission given, but rather that Morgan had taken or stolen the car for his own purpose.

Bolves argues that the law of New Jersey, and nQt that of New York, was applicable because the accident occurred in New Jersey and plaintiffs were New Jersey residents. Therefore, he says, the judge was wrong in charging the jury under the New York statute, section 388 of the New York Yehicle and Traffic Law, McKinney’s Consol. Laws, c. 71, which provides that

Every owner of a vehicle used or operated in this State shall be liable and responsible for a death or injuries to person or property resulting from negligence in the use or operation of such vehicle in the business of such owner or otherwise by any person using or operating the same with the permission, express or implied, of such owner.

The trial judge charged the jury in those words, leaving out only the words “in this State.” The charge was objected to by Bolves’ attorney on the grounds that proper notice was not given pursuant to Rule 9 of the Rules of Evidence and that the law of New Jersey applied.

The applicability of Rule 9 is not urged on this appeal, and understandably so since the second paragraph of the rule provides that judicial notice may be taken, without request by a party, of the public statutory law of any state. However, Bolves still insists that the law of New Jersey should have been charged — specifically, the so-called “initial permission rule” projected in Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488 (1960). We hold that the New York law was properly charged.

Historically, the choice of law process in tort cases has been governed by the doctrine of lex loci delicti, rigidly

applying the law of the place where the wrong occurred. Marshall v. Geo. M. Brewster & Son, Inc., 37 N. J. 176, 180 (1962). So mechanical a principle, allocating all of the issues of a case to the law of a single state, often fails to come to grips with the legitimate interests and policies of the several concerned states and may result in the arbitrary selection of the law of a state with little rational relationship to the litigants and to the issues.

The modification imported by the Restatement, Conflict of Laws 2d, §§ 379, 379(a) (Proposed Official Draft, Part I, 1967), potentially suffers from the same deficiencies. The Restatement would require that the court, in adjudging the proper law to be applied, balance a constellation of factors, some of which are often inequitable and immediately irrelevant. The dilemma posed by such a weighing process was aptly questioned by Chief Justice Traynor: “Can you weigh a bushel of horsefeathers against next Thursday?” 28 Law and Contemporary Problems 754 (1963).

Increasingly, the courts and commentators have questioned whether the uniformity and predictability provided by such rules outweigh the frequent capricious nature of the result. See Cavers, The Choice-of-Law Process, 65-66 (1965); Mellk v. Sarahson, 49 N. J. 226, 228-229 (1967); Dym v. Gordon, 16 N. Y. 2d 120, 262 N. Y. S. 2d 463, 209 N. E. 2d 792 (Ct. App. 1965), overruled by Tooker v. Lopez, 24 N. Y. 2d 569, 301 N. Y. S. 2d 519, 249 N. E. 2d 394 (Ct. App. 1969); Reich v. Purcell, 67 Cal. 2d 551, 63 Cal. Rptr. 31, 432 p. 2d 727 (Sup. Ct. 1967); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N. W. 2d 365 (Sup. Ct. 1967). Thus, where the place of the commission of the tort is merely adventitious and that state has no further interest in the proceedings, it is more reasonable to effectuate the legitimate concerns of a foreign jurisdiction by applying foreign law. In sum, the appropriate procedure is to segregate the respective issues and then to view each in light of the conflicting interests of the concerned states in resolving them under the local law.

In Mellk v. Sarahson the Supreme Court dealt with a case where two New Jersey residents engaged in an automobile trip to Wisconsin and back. On the return trip the parties were involved in an accident in Ohio, and the New Jersey passenger brought suit in New Jersey against the New Jersey driver. In rejecting the application of the Ohio host-driver statute the court followed the landmark case of Babcock v. Jackson, 12 N. Y. 2d 473, 240 N. Y. S. 2d 743, 191 N. E. 2d 279, 95 A. L. R. 2d 1 (Ct. App. 1963), and held that “New Jersey has the paramount interest in fixing the rights and liabilities arising from this host-guest relationship * * *.” (49 N. J., at 234)

Maffatone v. Woodson, 99 N. J. Super. 559 (App. Div. 1968), certif. den. 51 N. J. 577 (1968), involved an accident in this State between a car owned by a New York resident and registered there, and a car owned and driven by a New Jersey resident and registered here. All persons in the New York car were residents of that state. The driver had borrowed the car from his father to go to Garfield, N. J. His wife was killed in the fatal accident which occurred in Passaic, N. J. Her administratrix ad prosequendum sued the New Jersey driver and the New York owner of the car. The trial judge charged the New York statute quoted above. On appeal by the New York owner from a judgment entered on a jury verdict in favor of plaintiff, this court held that the charge was correct: “There were no New Jersey residents with interests to be protected by the law of the forum State, whereas New York had an interest in the adequate compensation for the wrongful death of a New York resident.” (at 563)

The core issue in the present case was the question of implied permission, and it centered around the New York employment relationship involving New York parties and a New York business. The fact that New Jersey was the situs of the accident was purely fortuitous and had no bearing on that issue. New York had the paramount concern in governing the conduct and consequences of its local employment relationships, and New Jersey has evinced no express public policy to regulate such foreign interests in any way. Indeed, Bolves could reasonably have expected that his con-

This brings us to the cross-appeal addressed to the re-duct would have been controlled by New York law. miltiiur. Van Dyke was unconscious for three or four days, and there was testimony that he suffered a fractured skull and cerebral concussion, shock, laceration of the forehead, a collapsed right lung, multiple fracture of the right index finger, bone fracture of the right hand, a cut left artery with the loss of four pints of blood, a punctured leg causing an indentation and scar, sprained neck requiring extended ultrasonic treatment, and many lacerations. Residuals included sears, headaches and numbness in the forehead, impairment of use of the finger, weakness due to low blood pressure, lung fibrosis and psychological effects. (Before the accident Van Dyke and his wife went out on weekends; he took care of his room and never lost his temper. He now walks in his sleep. He is no longer interested in a normal sex life. He was out of work for three months.)

The fact is that the trial judge was not shocked by the $40,000 verdict, and said so. His only reason for reducing the verdict was, as stated, “on the basis of the injuries sustained and the pecuniary losses amounting to $3,201.95,” and that $40,000 was “rather generous.” Van Dyke’s injuries were serious and he has obvious residuals. His injuries, pain and suffering cannot be measured by his special damages. And if the judge thought the $40,000 verdict “rather generous,” that was no reason for the reduction. What this court said in Andryishyn v. Ballinger, 61 N. J. Super. 386 (1960), certif. den. 33 N. J. 120 (1960), is directly in point as to this issue:

* * * Generally, the measure of damages in personal injury cases is not gauged by any established graduated scale; within reasonable limbs the appraisal of the amount of damages is left to the sound discretion of the jury, and the value of the award must be appraised in the light of existing economic conditions. Cermak v. Hertz Corp., 53 N. J. Super. 455, 465 (App. Div. 1958), affirmed per curiam 28 N. J. 568 (1959). As we said in Calakov v. Thatcher, 37 N. J. Super. 249, 257, 258 (App. Div. 1955), the trial court “will interfere with the verdict on the mere ground of excessive damages only with reluctance and never except in a clear case. * * * Neither the trial court nor an appellate court may invade the constitutional function of the jury and substitute its judgment for that of the jury as to the amount of damages to which plaintiff may be entitled in an action to recover for a personal tort unless the verdict be so excessive in amount as inevitably to give rise to the inference of mistake, passion, prejudice or partiality, and by that standard to be palpably against the weight of the evidence.” And see R. R. 4:61-1 (a). .4? * * * * * *
The trial judge gave only one reason for reducing the verdict: in his opinion it was “excessive.” However, as we observed in Oabaleov v. Thatcher, above, and as has repeatedly been said by our courts, the mere fact that the award may appear somewhat excessive to the court does not conclusively indicate that it was the result of mistake, prejudice, partiality or passion. [61 N. J. Super., at 393-395]

The jury verdict of $40,000 should not have been reduced. The trial judge applied the wrong standard. Accordingly, the order reducing the verdict is vacated and the trial court directed to reinstate the $40,000 award.


author: Halrern, J. A. D.

text:
    HARRY E. NEWTON, PLAINTIFF-RESPONDENT, v. WILLIAM J. DEMAS, CALVIN ELDRIDGE AND HENRY W. PETTY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 31, 1969.

      Before Judges Stjllivan, Carton and Halrern.

      Mr. Martin L. Haines argued the cause for appellants William J. Demas and Calvin Eldridge (Messrs. Dimon, Haines & Bunting, attorneys).

      Mr. Myron H. Gottlieb argued the cause for respondent (Mr. John H. Queenan, Jr., attorney).
   The opinion of the court was delivered by

Halrern, J. A. D.

A brief statement of the facts is necessary to understand the narrow issue to be decided.

Plaintiff Harry E. Newton is a New Jersey licensed engineer who was duly appointed and served as municipal engineer for North Hanover Township, Burlington County, from 1958 to 1966, inclusive. Defendant Calvin Eldridge was the owner of farm land in North Hanover Township which was to be utilized for the construction of garden apartments by defendant developer William J. Demás. Eldridge had given Demás an option to purchase for such use.

While plaintiff was township engineer he was employed by Demás, or his architect, to prepare plans and specifications for the sewer system to be utilized in the project, together with an outbound survey and a topographical plan of the Eldridge property. Plaintiff never completed all the work called for in connection with the sewer system but was paid $2,000 for the work actually done. He completed the outbound survey and the topographical plan, but Demás abandoned the project without submitting it to the township, and did not pay plaintiff for such work. The court rendered judgment for plaintiff against Demás in the sum of $2,878, plus costs, and this appeal followed.

Before discussing the legal issues involved it should be noted that the engineering work to be performed by plaintiff would be relied upon by Demás in submitting his proposed garden apartment project to the township for its approval, and for any required subdivision approval of the Eldridge property. Such engineering work, of necessity, would also be the basis for plaintiff’s opinion concerning the adequacy of the project’s drainage, street layout, boundary line locations and the sewer system. The township’s special zoning ordinance dealing with garden apartment projects required plaintiff, as township engineer, to determine whether such portions of the project met the specifications in the ordinance, and if not, “such drainage design and materials shall be installed as required by the Township Engineer.” In addition, plaintiff knew he would be called upon by other municipal agencies to advise with them concerning other features of the project. See N. J. 8. A. 40:55-1.20 to 40; 55-1.24.

The legal issue for determination is whether, on these facts, plaintiff, a public officer, was in such a conflict of interest position that his agreement to perform the engineering work for Demás was against public policy and, therefore, void and unenforceable even though the project was abandoned.

The courts of this State are committed to the principle that public officials hold positions of public trust; they are under an inescapable obligation to serve the public with the highest fidelity, good faith, and integrity. Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 474 (1952), cert. den. 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952). Such required conduct demands undivided loyalty and compels public officers to refrain from outside activities which interfere with proper discharge of their duties, or which may expose them to the temptation of acting in any manner other than in the best interests of the public.

These principles are imposed by law on all public officers and become effective upon their entering public office. If it be determined that such a conflict of interest exists, their agreements are against public policy and may be declared void; and this is so even though there is no proof of fraud, dishonesty, loss to the public or whether in fact they were influenced by their personal interest. S. & L. Associates, Inc. v. Washington Tp., 61 N. J. Super. 312 (App. Div. 1960), partly reversed on other grounds, 35 N. J. 224 (1961); Driscoll, supra.

Justice Jacobs, by way of dictum but in clear and unmistakable terms, expressed the view of our Supreme Court on the issue we are called upon to decide and with which we are in accord. In Virginia Construction Corp. v. Fairman, 39 N. J. 61 (1962), the court determined that a developer acquired no vested rights because of tentative and final approval of a subdivision which were improperly obtained. The court noted that the approvals of the subdivision were given by the part-time municipal engineer who had been hired by the developer to design the drainage plan for the proposed project. In poignant terms Justice Jacobs stated: “Although this type of dual employment has not been uncommon in the past, it gives rise to highly offensive conflicts of interest and should not be tolerated hereafter by municipalities.” (at 64, 65).

With these principles and standards in mind we have concluded that a municipal engineer who does engineering work for a developer, when he knew, or should have known, that it will be used by the developer in connection with a project in the municipality he represents, and requiring him to pass judgment thereon, is in a conflict of interest position. The facts in this case bring plaintiff within that proscription.

Plaintiff argues that our condemnation of this contract would in effect deprive a municipal engineer of the opportunity of performing engineering work for third parties in the municipality where he holds public office. We disagree. We have merely disapproved the practice of a municipal engineer accepting private conflicting employment when he knows, or should know, that it will require the exercise of direct or indirect action on his part on behalf of the municipality.

The verdict for plaintiff is reversed; and a verdict for no cause of action entered. No costs.


author: Halpehn, J. A. D.

text:
    LLOYD WARD AND ERNESTINE WARD, PLAINTIFFS-RESPONDENTS, v. GEORGE WEEKES AND WILLIE BELL, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1969
    Decided November 6, 1969.
    Before Judges Sullivan, Carton and Halpern.

      Mr. Peter E. Wegener argued the cause for appellants (Messrs. McCarter <& English, attorneys).

      Mr. E. Albert Eyett argued the cause for respondent.
   The opinion of the court was delivered by

Halpehn, J. A. D.

Plaintiff, Lloyd Ward, was involved in an accident with a taxi owned by defendant George Weekes, and driven by his employee, defendant, Willie Bell. In Ward’s suit against the defendants jury verdicts were rendered and judgments entered against the defendants in the sums of $1,000 for Ward, and $200 for his wife on her per quod claim.

It is uneontradicted that when the jury was polled two jurors stated that they agreed with the verdicts on liability but not on the amount of the damage awards; two different jurors stated they disagreed with the verdicts on liability but agreed on the amount of the damage awards. This resulted in ten-two verdicts for plaintiffs, but the same ten did not agree on the issues of liability and damages.

Plaintiffs moved for a new trial on two grounds. (1) The verdicts were defective in that they were rendered by less than ten jurors; and (2) the verdicts were inadequate being the result of mistake, partiality, prejudice or passion. The court set the verdicts and judgments aside on the basis that at least the same ten jurors must agree on the issues of liability and damages. He granted a new trial as to liability and damages and did not pass upon the inadequacy claim.

The issue confronting us is whether a ten-two jury verdict is valid when at least the same ten do not agree on the issues of liability and damages. This issue has not been decided in Hew Jersey.

Jury verdicts by five-sixths of the jury are permitted by N. J. Const. (1947), Art. I, par. 9, the applicable portion of which provides that “The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury * * Pursuant to such authorization the Legislature enacted N. J. 8. A. 2A:80-2: “In any civil cause wherein a jury of 12 shall be impanelled, a verdict may be rendered by 10 or more of the jury agreeing * * *."

By rule of court the statute was implemented to permit litigants, by stipulation, to try cases with less than 12 jurors and a verdict to be rendered by only a majority. R. R. 4 :49-1(a), now R. 1:8-2(a), R. R. 4:49-l(b), now R. l:8-2(b), imposes an implied stipulation on the litigants that if one or two jurors are excused, the verdict may be rendered by ten or more of the jurors agreeing, unless, at the jury drawing any of the litigants object to such implied stipulation. In addition, R. R. 4:49-2 requires a jury to be polled if its verdict is not unanimous.

There is nothing in the provisions of the cited constitution, statute or rules requiring all issues in a case to be decided by at least the same ten jurors. On the contrary, reference is only made to the term “a verdict.” We must assume that the framers of the 1947 Constitution, the Legislature and the Supreme Court realized that “a verdict” is a single final decision of a jury on all the factual issues submitted to it by a court for determination. Andres v. United States, 333 U. S. 740, 68 S. Ct. 880, 92 L. Ed. 1055 (1948). If these bodies intended to have each issue decided by at least the same ten jurors, they would have so provided. The failure to do so in dicates they realized that trials consist of many issues and to require at least the same ten jurors to agree on all issues would be impractical and undesirable.

The opposite approach was taken in Wisconsin, a state where the doctrine of comparative negligence is used. The Wisconsin statute makes it mandatory that “If more than one question must be answered to arrive at a verdict on the same cause of action, the same five-sixths of the jurors must agree on all such questions.” This statute makes it clear that at least the same ten jurors must agree on all issues before a jury verdict is valid, and their decisions so hold. Christensen v. Petersen, 198 Wis 222, 222 N. W. 231 (Wis. Sup. Ct. 1928), rehearing den. 198 Wis. 222, 223 N. W. 839 (1929); Hupf v. State Farm Mutual Ins. Co., 12 Wis. 2d 176, 107 N. W. 2d 185 (Sup. Ct. 1961); Strupp v. Farmers Mutual Automobile Ins. Co., 14 Wis. 2d 158, 109 N. W. 2d 660 (Sup. Ct. 1961).

The court below set aside plaintiffs’ verdicts because the two jurors who voted against liability did not have the right to consider the issue of damages. He concluded it would be inconsistent with their finding defendants not guilty of negligence. We disagree with such conclusion because it implies improper conduct and prejudice upon the part of the dissenting jurors.

The instant case is tjrpical of the many auto accident cases tried daily in the courts. The dispositive issues in these cases are usually negligence, contributory negligence and damages. A typical charge explains the function of the court and jury, defines the applicable law, and suggests to the jury that (a) they first consider the issue of defendant’s negligence, and if they absolve him from responsibility, they need go no further; (b) if they find defendant to be negligent as defined to them, they should then consider the issue of plaintiff’s contributory negligence, and if they find him to have been negligent as defined, then again they need go no further; and (c) if they find defendant to have been negligent and plaintiff free from contributory negligence then, and only then, should they consider the issue of damages. The charge generally concludes with the explanation that their verdict may be no cause for action if they find for defendant, or one lump sum of money if they find for plaintiff; and that their verdict may be rendered as soon as at least ten of them are in agreement. We are unaware of any charge, nor has any "been brought to our attention, which instructs the jury to vote separately on each issue and that at least the same ten must agree on all issues.

In the vast majority of cases the jury’s verdict, whether for plaintiff or defendant, does not indicate how each juror voted on each issue before arriving at their ultimate verdict. This is likewise true even when the jury is polled. Therefore, in the ordinary case we never know how each juror voted on the separate issues considered in arriving at their verdict.

To adopt the reasoning that the one or two jurors voting against liability (either because of defendant’s freedom from negligence or plaintiff’s contributory negligence) cannot consistently participate in the solution of the remaining issue of damages is untenable. It presupposes that because such dissenting juror concluded plaintiff was not entitled to recover, he would then prejudice the other jurors in their consideration of the damage issue — it is inferred he would hold out for a minimum verdict for plaintiff resulting in a compromise, or otherwise improper, verdict. We see no sound reason to assume that such juror would violate his oath of office and not render “a true verdict according to the evidence.” It is more proper to assume that when a juror is outvoted on an issue (liability) he will accept the outcome and continue to deliberate with the other jurors honestly and conscientiously to decide the remaining issues. If such is done, and we have no proof to the contrary in this case, then the ultimate verdict by at least ten is proper and in compliance with N. J. S. A. 2A :80-2.

Our determination is consistent with the decision in Malinauskas v. Public Service, 6 N. J. 289 (1951), where the court stated:

It is a well established rule that a verdict is to be liberally construed, and all reasonable intendment will be indulged in its support, and it will not be held insufficient, unless, from necessity, there is doubt as to its meaning. * * * [at 277]

It is advisable to consider the alternatives. If it be determined (.hat at least the same ten jurors must agree on all issues to have a valid verdict, then it will be necessary in the future to specifically charge juries to that effect. Assuming that two jurors dissent on the liability issue, should the judge instruct the jury that the two dissenters must leave the room so as not to taint the remaining issues to be decided ? Or should he instruct them to remain but refrain from participating in any further discussion and disposition of the case F Either alternative would be an unwarranted and unreasonable construction of the previously cited provisions in the Constitution, statute and rules. It would improperly remove two minds from considering all the issues to be resolved in reaching a verdict. It also would be in derogation of the purposes sought to be accomplished in allowing five-sixth verdicts, which were (a) to avert unjust verdicts resulting from one or two recalcitrant or dishonest jurors holding out; (b) to prevent the economic loss to the public, litigants, attorneys, and witnesses, because of mistrials, and (c) to alleviate court congestion and unfairness resulting from prolonged delay. See F. v. M., 96 N. J. Super. 335, 342 (App. Div. 1967), certif. den. State v. Billings, 50 N. J. 300 (1967). In the future, to avoid possible error, it may be advisable for trial judges to specifically charge juries, where applicable, that their verdicts are proper if each dispositive issue to be decided is agreed upon by any ten of them, and they should participate fully in determining all issues.

Eor the reasons expressed, we reverse the judgment of the court below in setting aside the verdicts and judgments. In light of our determination, and since the trial judge deemed it unnecessary to decide plaintiffs’ second ground for seeking a new trial based on the inadequacy of the verdicts, the case is hereby remanded with instructions to decide that issue.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ENRICO A. LICCIARDELLO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1969
    Decided November 10, 1969.

      Before Judges Golbmaiot, Lewis and Matthews.

      Mr. Frank F. Vittori argued the cause for appellant (Messrs. Piarulli & Vittori, attorneys).

      Mr. Carl G. Bowman, Assistant Prosecutor, argued the cause for respondent (Mr. Alvin E. Granite, Prosecutor, attorney).
   Per Curiam.

Defendant appeals from a judgment of conviction entered after a jury had found him guilty of bookmaking, N. J. 8. A. 2A:112-3. As a result of police surveillance of defendant’s activities over an extended period of time, they obtained a search warrant and conducted a search of his home. Defendant had locked himself in a small room at one end of the basem ent which was protected by a metal door. Upon their forced entrance into the room, the police noted a substantial volume of smoke and the odor of burning paper. They found none of the usual indicia of bookmaking or lottery but did find two telephones, a clock radio, and an off-on electric switch. The switch was in an off position and the telephones inoperative. One of the officers activated the switch, again tried the phones and found them still inoperative. This led the police to the garage where the terminal block for the telephones was legated. An attempt to restore service at this point was alsj| unsuccessful. The police traced the wires from the telephone pole to the garage where the wires entered at a point under the eaves. Upon breaking through the garage ceiling into the eight-foot space above, the police found a remote control relay switch hidden there. The incoming telephone wires were attached to that switch and from that point a wire ran down to and connected them with the terminal block. The police did not reactivate the switch; instead, they disconnected the wires leading from the telephone pole to the switch and attached their own head-set to the incoming wires. Service having been restored, the police were able to receive incoming calls.

One of the detectives then followed the electric wires used in connection with the remote control relay switch. They led to the cellar of the home, with one wire connected to the power source and the other to an off-on switch which was located in the crawl space and concealed in a floor joist. This switch was connected with the off-on switch earlier found when the police entered the cellar room. The arrangement of these switches was interdependent; the two off-on switches were so connected that if one were discovered, phone service could not be restored unless the other was found and the two then turned on.

Defendant’s appeal raises only one point. He argues that what the police did to receive his incoming telephone calls (which unmistakenly were related to the bookmaking activity) constituted an illegal wire tap under N. J. S. A. 2A-.146-1, since repealed by L. 1968, c. 409, § 27, thereby rendering all evidence of the telephone calls inadmissible at his trial. N. J. S. A. 2A:146-1 read:

Any person who wilfully and maliciously:
a. Cuts, breaks, taps or makes any connection with a telegraph or telephone line, wire, cable or instrument belonging to any other person; ■r * * v ^ * * *
is guilty of a misdemeanor.

From State v. Vanderhave, 47 N. J. Super. 483 (App. Div. 1957), affirmed sub nom., State v. Giardina, 27 N. J. 313 (1958), defendant gleans what he characterizes as the “mechanical test,” i. e., that if the means of interception is a mechanical connection to the transmittal system, connection through a device which is not part and parcel of the transmission line as set up by the telephone company amounts to a wire tap and violates N. J. S. A. 2A: 146-1. Since the police used a device not authorized by the phone company and not part and parcel of the system used by the sender and the receiver, this, it is argued, constituted an illegal wire tap.

Had the police found the telephones in working order, they could legally have received any incoming telephone calls, and testimony relating to such calls would have been admissible against defendant. If defendant had not unauthorizedly broken into the phone system and installed cut-off switches, it is clear that the police would have used the phones found when they entered the basement room. What they did do was nothing more than to reinstate service by using their own telephone receivers. This, in our view, was not a “mechanical interference” by the police officers, who were lawfully on the premises. Cf. State v. Giardina, above.

The judgment of conviction is affirmed.


author: Eiek, J. S. 0.

text:
    OTTO BAHRLE ET AL., PLAINTIFFS, v. JOSEPH MIRABELLI, TOWNSHIP OF WEEHAWKEN, DIVISION OF PENSIONS IN THE DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, AND THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 30, 1969.

      Mr. Lee A. Holley, attorney for plaintiffs.

      Mr. George P. Moser, attorney for defendants Mirabelli and Weehawken Township.

      Mr. Franldin D. RenJcoff, Deputy Attorney General, for Division of Pensions and Board of Trustees of P.E.R.S. (Mr. Arthur J. Sills, Attorney General, attorney).
   Eiek, J. S. 0.

This action was instituted as a “proceeding in lieu of prerogative writs.” In my judgment that form of proceeding is inappropriate in this case.

The action is a tort action by multiple plaintiffs for money based upon defendants’ alleged wrongful neglect of duty. Plaintiffs’ factual contentions in the pretrial order and the statement of issues contained therein make this abundantly clear, and the trial itself proceeded on that theory.

The pretrial order also included a waiver of trial by jury and the abandonment by plaintiffs of their claims for punitive damages.

The precise issues presented in the context of the facts of this case are apparently of first impression and the case itself is purportedly a “test case,” with others awaiting its outcome.

Plaintiffs, about 26 in number, contend that they are regular employees of the Township of Weehawken and required by law when hired to join the Public Employees’ Retirement System (PERS). They allege that defendant Mirabelli, the township clerk, was designated by the municipality as certifying agent and that it was his duty to inform them of their obligation to join the Pension Fund and to enroll them as required by law. Plaintiffs assert that Mirabelli neglected his duty to advise them of their obligation to join the Fund and to enroll them, and as a consequence they were not enrolled until sometime in 1966, which was a considerable period of time after they were hired.

The law provides that each employee is required to contribute to the Pension Fund by deductions from his salary. Employers are also required to contribute. Because plaintiffs were enrolled much later rather than when they were hired, each of them was, in addition to deductions for current contributions starting in 1966, required to contribute on a monthly basis, by deduction from his salary, installments on account of accumulated arrears. At the request of the employees, who complained that the double deductions constituted a hardship, the Eund materially reduced the installments on account of arrears.

This suit, originally instituted against Mirabelli and the Township of Weehawken, was later amended to include the Division of Pensions and the Board of Trustees of the Public Employees’ Eetirement System of the State of New Jersey. In the interest of brevity I shall refer to both of those public bodies as the “State.” Mirabelli and the township then cross-claimed against the State- for contribution in the event that plaintiffs were successful in their action against them. In their amended complaint plaintiffs charge the State with a violation of duty in that it failed to enforce the statute which makes mandatory the enrollment of new employees.

The responsibility imposed on the Board is defined in N. J. S. A. 43:15A-17 which states that the “general responsibility for the proper operation of the Public Employees’ Eetirement System and for making effective the provisions of this Act shall be vested in the Board of Trustees subject to the limitations of the law.”

The specific duty to inform a new employee as to his duties and obligations under the act as a condition of his employment is upon the employer. N. J. 8. A. 43:15A—29 provides that

Upon the employment of a person to whom this act may apply, his employer shall inform him of his duties and obligations under this act as a condition of his employment.

N. J. 8. A. 43 :15A-67 provides that

The chief fiscal officer of the employer shall submit to the retirement system such information and shall cause to he performed in respect to each of the employees of the employer such duties as would he performed in the State service by the head of a Department of the State employing members of the retirement system.

Prior to the 1966 amendment of the above statute the employer was required to submit the information to the Board of Trustees rather than to the retirement system.

N. J. 8. A. 43:15A-80 provides that

The chief fiscal officer of the county or municipality or the secretary of board of education of the school district shall submit to the Public Employees’ Retirement System such information and shall cause to be performed in respect to each of the employees of the county, municipality or school district such duties as would be performed in the State service by the head of a department of the State employing members of the retirement system.

N. J. 8. A. 43:15A—15 prescribes the duties of the head of a State Department and provides that

The head of a department or branch of the state service not included in a department employing a member shall submit to the board of trustees a statement showing the name, title, compensation, duties, date of birth and length of service of the member and any other information the board requires.

The employer is the Township of Weehawken. By resolution executed on February 19, 1962 Weehawken designated Joseph Mirabelli its township clerk, as certifying agent and the person responsible for the processing at the local level of all documents pertaining to PEES, particularly enrollments, members accounts, retirements and withdrawal claims.

The proofs establish that in 1965 the State undertook a survey of all New Jersey municipalities to determine whether any employees who had not established membership in PEES were required to establish membership as a condition of their employment. In accordance therewith, on November 22, 1965 a roster was sent to the Township of Weehawken with instructions that the information contained on the roster be completed for all employees who were not contributing to the Pension Fund or Social Security.

On February 15, 1966 Mirabelli, in response to the State’s request, sent to the Division of Pensions a roster of township employees who were not then contributing to the Pension Fund.

On March 2, 1966 the Division, by William R. Murphy, Jr., supervisor of field services, wrote to Mirabelli after a review of the roster and informed Mirabelli which of the persons who were included in the roster were required to join the Fund, and in his letter he set forth the mechanics of enrollment.

On April 27, 1966 Mirabelli wrote to Murphy stating that there was much dissension among employees over 60 years of age to joining the Pension Fund and requested that a representative of the Division of Pensions visit the employees to enlighten them as to the benefits to be derived by enrollment.

On May 6, 1966 Mirabelli again wrote to the Division stating that May 26, at 4 p.m. at the Weehawken Municipal Building, would be a convenient time and place to meet.

On that date John P. Olender, an examiner of the Division of Pensions, visited Mirabelli who informed him of the objections of the employees to enrollment. Thereafter, that same day Olender met with the individuals involved and explained the benefits of the system and answered all of their questions. In his report of the meeting Mr. Olender stated that the chief objection of the employees to joining the system was the fact that they earned only $10 a day and were just about able to live on those earnings. They also objected to the fact that many of them were 60 years of age and over.

Plaintiffs offered no proof that the State had any knowledge that plaintiffs were in the employ of Weehawken prior to February 1966, and I find as a fact that prior to receiving the roster Mirabelli sent to it on February 15, 1966, the State had no knowledge that they were in Weehawken’s employ.

On behalf of the State, William J. Joseph, Director of the Division of Pensions, testified that since the participation of the Township of Weehawken in PERS in 1948, the township was regularly advised by the Retirement System, and

later by the Division of Pensions, of the categories of eligibility for membership and specifically as to the category of employees who were required to be enrolled. He testified that numerous bulletins, field manuals and pamphlets, copies of some of which were received in evidence, were prepared by the Retirement System and the Division of Pensions, and sent to the Township of Weehawken and its certifying agent Joseph Mirabelli, reminding them of their statutory duty and changes in those duties in regard to enrollment procedures. In addition to the informational brochures referred to by him it appears that the back of the enrollment application sets forth the categories and obligations of membership. These enrollment applications were distributed to the township and Mirabelli as well as to every municipality in the State, and their certifying agents.

As noted, the statute imposes the primary obligation to enroll employees upon the municipality and its certifying agent. The imposition of such a duty upon the State would require constant vigilance upon its part to ascertain the hiring of new employees in the more than 500 municipalities of New Jersey. The statute cannot reasonably be interpreted to impose such a burden upon the State. It does specifically impose that burden upon the municipality, which obviously is in a far superior position to make known to the State the fact that a new employee was hired by it. In my judgment the State complied with its duty by circularizing to the municipalities and their certifying agents by way of pamphlets and other periodicals information which clearly indicated the mandatory requirement of enrolling new employees in the Pension Fund.

For the foregoing reasons I conclude that the State did not violate any duty it owed to plaintiffs or to Mirabelli or the township, and judgment of no cause for action is therefore entered in favor of the Division of Pensions and the Board of Trustees of the Public Employees’ Retirement System of the State of New Jersey.

AS TO MIRABELLI AND THE TOWNSHIP OE WEEHAWKEN

As I previously pointed out, N. J. 8. A. 43 :15A-29 imposes upon an employer and its certifying agent the duty for processing at the local level all documents pertaining to PERS, particularly enrollment. The evidence is clear that prior to 1966 Mirabelli was totally unaware of the fact that it was mandatory for new employees to become enrolled in PERS. Obviously, therefore he was in no position to advise new employees of their mandatory obligation to join, and he likewise failed in. his obligation to follow mandatory enrollment procedures. Plaintiffs allege that Mirabelli’s neglect caused them economic damage and they seek money judgments to compensate them. Defendants Mirabelli and the township deny that any of the plaintiffs sustained any measurable damage, and they also defend on the ground that both are immune from liability because Mirabelli was acting in the performance of a public duty and under a public statute, and his dereliction of duty was neither malicious nor in bad faith.

AS TO IMMUNITY

I am satisfied that the failure of Mirabelli to advise new employees of their obligation to join the Pension Fund and to enroll them on a mandatory basis, was a result of ignorance on his part of those requirements of the law. He testified that his duties as town clerk occupied all of his time and he had no time to read the pamphlets that were sent to him by the State in connection with PERS. While this establishes a failure to perform his duty as a certifying agent, it nevertheless is not proof that he acted maliciously or in bad faith, or that his conduct was willful in the sense that he knew of the mandatory provisions of the law and purposely failed to comply.

In Miehl v. Darpino, 53 N. J. 49 (1968), our Supreme Court said that “there are certain kinds of acts or omissions of government, no matter how they are categorized, defined, or labeled or how governmental immunity from suit is to be regarded, which should not give rise to tort liability.”

In Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214 (1966), the Supreme Court noted: “It may here appropriately be noted that the non-liability of individual public officials for damages ensuing upon their good faith of exercise of judgment and discretion in the performance of their duties, has long been recognized in our State.”

In Tyrell v. Burke, 110 N. J. Law 225 (E. & A. 1933), the evidence disclosed that TyreJl applied for an embalming license (and probabty also for license as a funeral director, but this is not clear) and took an examination on August 3, 192?; that a month later he was informed by the secretary of the board constituted for that purpose that he had passed the embalmers examination, but “did not make the license as funeral director,” and it was intimated to him that the two went together. The license was not issued but he was told later that he had the secretary’s letter and could carry on his business under that. The matter rested in that situation until plaintiff interested certain public officials in his behalf and the license was formally issued.

The court held that it was the board’s duty, by law, to issue a license to such applicants as could, upon examination, satisfy the board of his qualifications. While testimony was given by board members to excuse their failure to issue the license, the court held that the conduct of the board exhibited “considerable ignorance of their duties and perhaps also negligence in their performance.” However, the court found nothing from which it could be inferred that what occurred exhibited malice or bad faith toward plaintiff. The court held that, absent malice or bad faith, the law affords no redress in the form of damages against the action of members of a public body, and followed the rule that members of a public board acting in the performance of a public duty and under a public statute are not personally liable in a civil action for damages arising out of their acts, provided that what they do was done in good faith, citing Valentine v. Englewood, 76 N. J. L. 509, 19 L. R. A., N. S., 262 (E.& A. 1908), and Johnson v. Marsh, 82 N. J. L. 4 (Sup. Ct. 1912).

As in Tyrell, the conduct of Mirabelli exhibited considerable ignorance of his duties and a consequent failure to properly perform his duty of mandatorily enrolling new employees in the Pension Eund. I find nothing in this case, however, from which it can be inferred that his conduct resulted from malice or bad faith.

Since Mirabelli was engaged in a governmental function in the administration of a statutory obligation, in the absence of a finding of malice or bad faith in the performance of those duties neither he nor his employer, the Township of Weehawken, is liable in tort for a negligent performance of those duties.

PLAINTIEES SUEEERED NO COMPENSABLE DAMAGE

Notwithstanding that plaintiffs were not enrolled in the PERS when they were hired, and despite the fact that they paid nothing into the Eund until years later, they automatically became members of the Eund when they were hired and were entitled to its benefits.

The proofs establish that the State adopted this policy in all cases of noncompliance with mandatory enrollment, and proof was received of death benefit payments to the legal representatives of five nonenrolled township employees who died while in service, and one instance of retirement benefits paid to a Weehawken employee who, too, had not formally been enrolled. In each case payment was made by the State after first deducting the amount that each employee would have paid, with interest, had enrollment taken place upon hiring.

Every plaintiff in this case, even though not mandatorily enrolled as required, was therefore entitled to the benefits of the Pension Eund as of the date each was hired, subject only to the requirement that they pay to the State what they should have paid.

The policy of the State conforms with judicial mandate. Employees required to enroll in a State Pension Fund are members of it despite the fact that the employer fails to make deductions from the employee’s salary as required by law. Board of Education of City of Linden v. Liebman, 56 N. J. Super. 556 (Ch. Div. 1959); Gerendasy v. Police, etc., Pension Comm’n of Elizabeth, 130 N. J. L. 226 (Sup. Ct. 1943); Caronia v. Police, etc. Pension Comm'n of Orange, 18 N. J. Super. 149 (App. Div. 1952).

In Geller v. Dept. of the Treasury, Annuity Fund, 53 N. J. 591 (1969), the Supreme Court required a member of the Pension Fund to make payment of arrears (although a smaller amount than that required by the Pension Fund, for equitable reasons) plus interest to achieve a pension status she would have achieved had the payment of arrears been made as of a date in 1947, citing, with approval Board of Education of City of Linden v. Liebman, supra. See also, Jacobs v. N. J. State Highway Authority, 54 N. J. 393-(1969).

In plaintiffs’ brief eight specific claims of damage are made. I shall deal with each claim in the order set forth in the brief.

1. A major portion of tho retirement system is the provision of free, as well as optional, insurance. N. J. S. A. 43:15A-45(c), 46(c), 48(c) (d), 50 and 57. Plaintiffs were not insured during the entire period and should not have to pay for a system calculated to include insurance costs during such period.

The above allegation that plaintiffs were not covered during the entire period of their employment was not supported by any testimony at the trial. In fact, the testimony of William Joseph, Director of the Division, was to the contrary. He testified that the Division had in the past paid claims in regard to the free or noncontributory insurance, despite the failure of an employee to enroll where such en•rollment was mandatory. This testimony is supported by Exhibit J1 in evidence wherein it is indicated that insurance benefits were paid on behalf of the following named plaintiffs : J. Rimmer, R. Temple, J. Coffee, K. Eckardt, 0. Bahrle and D. Lane.

It should be noted in regard to the optional or contributory insurance, that prior to July 1, 1963 enrollment in the contributory insurance program was optional. Subsequent to that date enrollment in the program was made mandatory for one year. There Iras been .no showing that any of the deceased named plaintiffs desired the contributory insurance, other than those who, in fact, did enroll in the program.

Since none of the named plaintiffs died without receiving the noncontributory insurance benefit, no loss has been shown to have been incurred by them. The evidence indicates that the deceased, as well as all other employees, were covered. Requiring payment by plaintiffs for such coverage is not unreasonable.

2. Plaintiffs should have been entitled to interest on their monies which they will not receive. N. J. S. A. 43:15A-33.

Plaintiffs had full use of their money during the period they should have been making contributions to the system. Having had that full use of their funds, their complaint of a lack of interest on those monies is not justified.

Interest on contributions is payable to a member only upon withdrawal from the system after three years of membership. N. J. 8. A. 43 :15A-41. Since the proofs at trial do not indicate that any of the withdrawing plaintiffs are eligible for interest, there has been no showing of damage to plaintiffs in regard to interest.

The “retirement allowance” is based on a five-year final •average salary and years of service and is not based on the amount of the member’s contributions in his account at the time of retirement. The retirement allowance is composed of the member contribution portion (an annuity) supplemenied by the employer’s contributions (a pension) in whatever amount is required to produce the statutorily guaranteed retirement allowance. The employer is billed annually under N. J. S. A. 43 :15A-24 to insure that the pension element will be sufficient to support the annuity in guaranteeing the retirement allowance. Thus, the absence of interest in the membership account results in a higher cost to the employer with no loss of benefit to the employee. Consequently, plaintiffs have suffered no damage in regard to interest on their account.

3. Plaintiffs would have had standing to question various real estate investments made during the past years by the Board of Trustees. N. J. S. A. 43:15A-33.1, 33.2 and 33.3.

By statute the investment of the pension funds is vested in the Division of Investment subject to the approval of investments by the Board. The membership elects a municipal representative to the Board twice in every three years. Thus, had the plaintiffs been members, their control over investments would be so remote as to be unaseertainable and to all intents and purposes is nonexistent. Neither the membership nor the Board makes any direct investments in real estate.

4. Plaintiffs would have been entitled to borrow money at favorable interest rates had they been members. ,Ar. J. S. A. 43 :15A-34. They were denied these rights.

The loan provisions of the Public Employees’ Retirement System allow a member to borrow up to one-half of the contributions in his account. Plaintiffs had the entire amount of their contributions for their use, not merely one-half of those funds, without the payment of interest to the Division. Thus, they not only deprived the entire membership of interest payments on the use of their contributions, but also deprived the system of the use of their monies for investment. To that extent, the Division and the membership have been injured by plaintiffs’ unlawful action in failing to enroll timely.

5. Plaintiffs would have been entitled to the security of knowing that they bad a retirement income provided for N. J. S. A. 43:15A-38. 39, 41, 42 and 43.

By statute, plaintiffs had the benefit and security of the retirement system. No evidence was adduced at trial to indicate a feeling of insecurity on the part of any of the named plaintiffs. No testimony indicated that plaintiffs inquired of the Board or Division as to what benefits they might be entitled to. This lack of inquiry serves as evidence of the fact that plaintiffs were not concerned with their securitjr.

0. Plaintiffs would have had standing to elect the Board of Trustees of the pension funds and were denied this right. 2V. J. S. A. 43 :15A-17.

Plaintiffs have failed to submit any proof to indicate any injury resulting from their inability to elect the Board of Trustees of the retirement system.

7. But most importantly, plaintiffs lost the economic use of their salaries and the advantage of paying as they worked for their retirement. The payment of a small percentage over the years creates a far lesser economic hardship than the payment of the large sum when plaintiffs became less mobile economically.

As heretofore noted, the State reduced installments on account of arrears to the minimum permissible.

In my judgment the payment of these minimal installments to achieve a pension status each was entitled to, does not constitute measurable, compensable damage. Moreover, whatever disadvantage has resulted is more than offset by the benefits which accrued to each plaintiff without the expenditure of any money. They had the advantage of a right to benefits without making contributions, as compared with all others who did enroll when they were required to and did make contributions.

8. The inability to speculate as to actual damages illustrates the real harm suffered by plaintiffs. It may be that the amount of contributions made was the straw that broke any one plaintiff’s back as to continued employment. Today, that plaintiff is given no choice; he either pays up or loses the benefit of service he has accumulated.

The reference in the first sentence above to an “inability to speculate as to actual damages” seems to be a tacit admission by plaintiffs that the alleged damages are in fact speculative and not real. Despite the fact that several years have passed since plaintiffs were enrolled in the pension system and paying small installments on account of arrears, there is no proof that anyone left his employment because he had to make those payments and there is no proof that anybody lost any benefit of service.

I find that no compensable damage has been sustained.

Judgment is therefore entered in favor of defendants Township of Weehawken and Joseph Mirabelli, and against plaintiffs of no cause for action.


author: Pusco, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANTHONY FALCETANO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 10, 1969.

      Paul Murphy, argued the case for plaintiff (Mr. Joseph P. Lordi, Essex County Prosecutor).

      Martin Greenberg, argued the case for defendant.
   Decision on motion for order directing psychiatric examination of witness.

Pusco, J. S. C.

Defendant, who is charged with homicide and assault with intent to kill under two separate indictments, moves for an order directing a psychiatric examination of Ealph Tino, a witness to the alleged murder of Michael Tino, his father, to determine his competency as a witness both at the time of the alleged murder and now for purposes of trial.

In State v. Butler, 27 N. J. 560 (1958), the trial court allowed the State to hold a pretrial psychiatric examination of a witness who had been indicted along with defendant but who had turned State’s evidence and who had been confined previously to an out-of-state mental hospital. In addition to allowing the State to examine the witness, it denied defendant’s motion to order a psychiatric examination of the witness. In making its determination of competency, the trial court based its decision, at least in part, on the State’s reports which it examined privately and ex parte. At 598-599.

The Supreme Court reversed the trial court on this motion by defendant, holding that, although there is no express practice rule authorizing a pretrial order for a psychiatric examination, a trial court, having jurisdiction of a criminal prosecution, has the authority to so order the examination by subpoena in its inherent powers. At 600-601. The ex parte decision of competency and the resulting lack of cross-examination deprived defendant of a basic fair trial right. At 605. Cf., Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 1965). The court was cognizant of Matter of Peterson, 253 U. S. 300, 312, 40 S. Ct. 543, 547, 64 L. Ed. 919 (1920), which holds:

Courts have (at laest in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.

The court warned, though, in Butler, supra, that the practice of granting psychiatric examinations of witnesses must be engaged in with “great care” and only upon a “substantial showing of need and justification.” 27 N. Jat 605.

A pretrial order was granted to defendants, appointing a psychiatrist to examine a witness in another murder trial, but when the witness refused to submit to the examination, the trial court denied defendant’s motion for an order compelling her submission. The Supreme Court remanded the case, holding that such an examination should have been ordered. State v. Franklin, 49 N. J. 286, 288 (1967). Here again, the witness had previously been committed to the state hospital for the insane. After the witness was examined by a psychiatrist, the trial judge determined that she was competent to testify and the trial continued. See State v. Franklin, 52 N. J. 386 (1968).

A slightly different question is presented in State v. Tate, 47 N. J. 352 (1966). In that ease, the defendant asked for orders permitting pretrial depositions in a murder trial. This request was denied on the grounds that such pretrial disclosure should only be allowed where it was anticipated that the witness could not attend a criminal proseeding. Id. at 353—354, State v. Farmer, 48 N. J. 145 (1966). Also, see, B. 3 :l3-2 (a) (formerly, B. B. 3 :5—8 (a). This situation is not present in the instant case — the scope of the examination sought is not similar to the scope of testimonial depositions.

In the instant case, there is no evidence that the witness involved has ever been hospitalized in a mental institution, nor is there any evidence that there was ever any question of his competence before the alleged murder and assault took place. There is, though, the report of a police record made on September 20 when three officers investigated a complaint emanating from the Tino home. That report is instructive in this case.

According to the report, Ealph Tino had threatened his mother and sister and had thrown ash trays, dishes and food about the kitchen, previous to the arrival of the officers. When the police arrived, Tino continued “screaming and swearing” at his mother, began choking her and shouted obscenities at her. After one of the officers pulled him away, he attacked his mother again “more violent [ly].”

The mother indicated to the officers that the condition of the house was caused by her son, who is the subject of this application, and that incidents of this nature had been happening since her husband’s death. She added that she had been trying unsuccessfully to have her son visit a doctor.

In an affidavit, Tino stated that he does not consent to a psychiatric examination. The State also alleges that the police report does not give rise to the right of the court to exercise its inherent authority to give the psychiatric examination.

Of course, the rights of the witness must be considered in this action, as well as the rights of the defendant. In Butler, supra, where the court disallowed a procedure whereby the defendant could speak to the witness only in the presence of a representative of the prosecutor’s office and the witness’s counsel, it noted, “Such action, except as to the presence of [the witness’s] counsel, we deem to be an undue limitation.” Butler, supra, at 600.

Here, Tino has sworn that he does not have the funds available to obtain an attorney and has requested the court to appoint one. If a psychiatric examination is ordered, certainly the witness should have the benefit of legal counsel so that he is not faced with the danger of losing rights at what must be described as a “critical stage in the criminal process.” Cf., State v. Williams, 97 N. J. Super. 573, 600-01 (Law Div. 1967).

• The State has a broad policy of representation of indigent defendants in criminal proceedings. Included in the declaration of policy of the establishment of the state Public Defender system is the aim “that no innocent man [should] be convicted.” N. J. S. A. 2A:158A-1. Under the new Rules of Court, the right to counsel has been expanded to certain non-indictable offenses. B. 3 :27-2. The Public Defender statute has been interpreted to include custodial interrogation and pre-indictment identifications “within the broad declaration of [statutory] policy. State in Interest of Anthony Antini, Jr., 53 N. J. 488, 492 (1969).

Considering the possibility that rights can be lost at a psychiatric; examination if incompetency is fmmd, regardless of the fact that the examinee is not the defendant in the action, the court must require court-appointed counsel to represent the witness at such an examination, if it is to decide that such an examination should be ordered.

Has there been the requisite showing of “need and justification” in this case? The actions of Kalph Tino are certainly those which indicate some kind of traumatic shock. The violence he exhibited, the attacks on his mother in the presence of police officers and the repetition of that violence (in stronger measures) after he was originally pulled away by the officers, indicate that there is more than a scintilla of evidence that such an examination should be ordered.

This is not an ordinary case, and this decision should not be used as a lever to open the doors to massive examination of witnesses in all kinds of actions. This is a capital case, and it is one in which the witness is the son of the deceased. Under the circumstances, it appears that it is a situation in which the court can use its “inherent power” to provide itself with “appropriate instruments required for the performance of [its] duties.” Matter of Peterson, supra.

The court will order a psychiatrist, appointed by the court, to examine the witness. The witness will have counsel to insure against a situation in which witness might be deprived of critical rights. The court will then hear the psychiatric testimony in open court to determine the competency of the witness to testify, as well as such other evidence as may be presented by the parties, a function well within the province of the court. Franklin, supra, 52 N. J., at 399.

In a case such as this, it is vitally imperative that adequate notice be given to the witness who is the potential subject of the court-ordered psychiatric examination. The need for such notice is apparent. This will be a critical stage of the proceedings for the witness, as discussed above, and the court would be derelict if it did not make notice obligatory on the party who is requesting the examination.

Under the Fifth and Fourteenth Amendments of the Constitution of the United States, no person should be deprived of “life, liberty, or property without due process of law.” Clearly, the possibility of deprivation of competency is a due process right as contemplated by the Constitution. Under these circumstances, the need for adequate notice becomes all the more vital. Cf., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1949).

As Butler, supra, noted, “great care” must be employed before a psychiatric examination of a witness will be ordered. Notice is one of the necessary safeguards that comports with “great care.” The court now rules that in the future notice must be given to the witness to be examined contemporaneously with the request to the court for the psychiatric examination. Service of notice should be as in B. 4:4r-i of the new rules.

Under this rule,

Service * * * shall be made as follows:
(a) Individuals Generally. Upon an individual other than an infant under 14 years of age or an incompetent person, by delivering a copy of the summons and complaint to him personally, or by leaving a copy thereof at his dwelling house or usual place of abode with a competent member of his family of the age of 14 years Or over then residing therein; or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on his behalf.
4 # $ # $ $ * $
(b) (2) Incompetents. Upon an incompetent person, by delivering a copy of the summons and complaint personally to the guardian of his person or a competent adult member of his family with whom he resides, or, if he is living in an institution then the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided for by court order; and, unless the court otherwise orders, also to the incompetent. R. 4 :4-4.

The court orders that counsel be appointed to represent the witness Ealph Tino and that a psychiatrist will be selected by the court to conduct the requested psychiatric examination of him. The psychiatrist to be chosen will be selected from the panel of impartial medical experts as maintained by the Administrative Director of the Courts, under B. 4:20-2. The examination will be carried out in the manner contemplated generally by B. 4:20. However, costs of both the psychiatrist and the attorney to be appointed for the witness will be assessed to the defendant.