author: Consodine, J. S. C.

text:
    LORRAINE EGBERT, PLAINTIFF, v. THEODORE RICHARD EGBERT, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided September 19, 1973.

      Mr. Sidney N. Lane for plaintiff (Newark Legal Services Project, Walter M. Mitchell, attorney).
   Consodine, J. S. C.

Plaintiff proves and corroborates an action for divorce (N. J. S. A. 2A :34-2) and for alimony and support (N. J. S. A. 2A :34-23). Service was made by publication (R. 4 :78-2(a)) with special substituted service (R. 4 :78-2(c)) on the mother of defendant who resides in this State. The file discloses a communication from her after the substituted service in which she states that while she did not know defendant’s whereabouts, he had telephoned to her recently from Florida on several occasions; to prevent her “involvement” in the matter, he declined to give hex any address. Four months elapsed between substituted service and trial. It is inconceivable that he did not have notice of this suit from her.

There are six infant children of the parties. Plaintiff receives from the county welfare board $462 a month and other benefits for the support of herself and their children. The funds therefor come from appropriations of 50% from the Federal Government and 25% each from the State and County Governments.

In a prior action in our Juvenile and Domestic Relations Court personal service had been made on defendant. He participated in that case for six years. He still remains on probation from that court until 1974. With the issuance of a bench warrant in that court, defendant left this State for parts unknown and still remains away by choice.

There being no evidence that this itinerant husband has acquired domicile elsewhere, I find that his domicile has remained in this State at all times. N. J. S. A. 2A :34-8.

Kase v. Kase, 18 N. J. Super. 12 (App. Div. 1952), well expressed our then precedents concerning service in a matrimonial action vis a vis due process.

Foris v. Foris, 103 N. J. Super. 316 (Ch. Div. 1968), in sustaining service by registered mail in Nevada on a husband visiting there for an ex parte divorce, review the “long arm” cases in this State and concluded that

* ... jg jn the gtate’s interest in the commercial sphere to protect its citizens by diminishing the harsh and arbitrary effect of state boundaries, it is of no less importance in the area of law now before us. * * 51 [at 323]

(Judge Horn advises me that the underlined word was inadvertently eliminated from the printed opinion).

Foris was followed by Wright v. Wright, 114 N. J. Super. 439 (Ch. Div. 1971), where, although service was made outside of New Jersey, separate maintenance was awarded under the “long arm” doctrine, and by E. v. T., 124 N. J. Super. 535 (Ch. Div. 1973), where the question involved was whether personal service of process in Nevada constituted due process to defendant in a custody case?

Since International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), it is undisputed that

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”, [at 316]

There has been over a quarter of a century a general easing of due process requirements. This easing applies as well to individuals as to foreign corporations. Rosenblatt v. American Cynamid Co., app. dism. 382 U. S. 110, 86 S. Ct. 1, 15 L. Ed. 2d 39 (1965). See also, J. W. Sparks & Co. v. Gallos, 47 N. J. 295 (1966); Avdel Corp. v. Mecure, 58 N. J. 264 (1971). Requirements as enunciated in Pennoyer v. Neff, 95 U. S. 714, 95 L. Ed. 565 (1877), were eased, among other cases, by International Shoe Co. v. Washington, supra; Travelers Health Ass'n v. Virginia, 339 U. S. 643, 70 S. Ct. 927, 94 L. Ed. 1154 (1950); Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).

McGee v. International Life Ins. Co., 355 U. S. 220, 222-223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), premised this moderation on the increasing nationalization of commerce due to modern transportation and communication.

See also, “Jurisdiction — Past Contacts with State Held Sufficient Basis for In Personam Alimony Award against Non-Resident Spouse,” 1 Rutgers Camden L. J. 117 (1969) :

* * On the contrary, a fair assessment of the relevant policy supports the majority’s conclusion that the minimum contacts concept is “peculiarly” suited to this type of case [concerning Mizner v. Mizner, 84 Nev. 268, 439 P. 2d 679 (Sup. Ct. 1968) cert. den., 393 U. S. 847, 89 S. Ct. 130, 21 L. Ed. 2d 117 (1968), reh. den. 393 U. S. 972, 89 S. Ct. 391, 21 L. Ed. 2d 386 (1968)
In addition to those considerations offered by the majority to support its decision, there are many others which can be cited. Rapid technological developments improving the speed and facility of transportation necessitate an expanded scope of jurisdiction. The inconvenience and hardship exj>erienced in requiring resort to a foreign forum, the cost of which could inhibit the plaintiff-spouse from ever bringing any action and financially dilute whatever award the spouse might win, further supports an expanded base of jurisdiction. Also, the convenience of hearing the action where the cause of action arose; the enjoyment, by the departed spouse, of the rights and protections of the matrimonial state while residing in that state; the contraction of the marriage and residence in the marital state and the consequent obligations arising therefrom; and the perpetration of the acts in the matrimonial state which gave rise to the cause of action, all support the legitimacy and need of a minimum contacts jurisdictional basis, [at 128]

These eases focus on (1) the nature and extent of defendant’s connection with the. State; (2) the interest of a party in having the litigation in a particular forum, and (3) the interest of the State in providing plaintiff with an effective means of redress. This last would, of course, include the right and duty of the State to seek reimbursement of public funds expended for the welfare of defendant’s dependents.

|2, 3] The eases as a group are equally relevant to matrimonial actions where alimony, child support, or both, are sought. The last matrimonial domicile would seem to be the proper forum where divorce, support and custody cases can be litigated. The existence of a marital domicile in a state has as many consequences as economic activity does (McGee v. International Life Ins. Co., supra) and should satisfy due process requirements so as to permit in personam jurisdiction for the award of alimony and child support against a vagrant spouse.

In Milliken v. Meyer, 311 U. S. 457, 61 S. Ct. 339, 85 L. Ed. 278 (1940), the Supreme Court left no room for interpretation where judgment was entered after service pursuant to statute in another state, holding that:

® * * the authority of a state over one of its citizens is not terminated by the more fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. * * ® One such incidence of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.

See discussion in Goodrich on Conflicts, “Jurisdiction of Courts”, § 73 at 118 (1964); see also, Lea v. Lea, 32 N. J. Super. 333 (App. Div. 1954). And the Restatement, Conflict of Laws 2d, § 77, comment (C) (1971), states:

The state of matrimonial domicile, which is the state where the spouses were domiciled when they last lived together as man and wife, should usually at least have jurisdiction to grant support if the plaintiff spouse has continuously remained domiciled there.

The “long arm” statutes of various states were enacted to secure jurisdiction over non-residents for tortious acts and breaches of contract. The courts of these states reject expansive construction of the statutes to matrimonial matters (but see Poindexter v. Willis, 87 Ill. App. 2d 213, 231 N. E. 2d 1 (App. Ct. 1967)), even though marriage is a contract, although in some jurisdictions the statute has been held applicable to matrimonial suits involving separation agreements as contracts. See Kochenthal v. Kochenthal, 28 A. D. 2d 117, 282 N. Y. S. 2d 36 (App. Div. 1967).

The jurisdiction this court asserts is not based on statute but on the facts found and case law cited. Cf. 19 N. J. Practice (Ackeson, Fulop, Lodge, Skills and Methods), § 688, at 465 (1973). Personal service could not be made on defendant because his whereabouts were unknown and he continued to keep them unknown. In that vacuum additional service was made on his mother in New Jersey. And, as stated, defendant, who had been personally served in New Jersey in the Juvenile and Domestic Relations Court case and appeared therein, was admittedly in frequent communication with his mother. There is little doubt that if defendant was personally served in any state, alimony and child support would haye been adjudged in New Jersey. The service made herein gave defendant opportunity of notice of the action and does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, supra; see also, U. S. v. Smith, 398 F. 2d 173 (3 Cir. 1968), holding that the test under due process and under full faith and credit clause, of validity of notice given nonresident defendant in divorce proceeding, is not whether the absent spouse received notice, but whether the method used was one reasonably calculated to give actual notice.

It would seem that there is little extension of the rule of the cases in holding that personal service in the Juvenile and Domestic Relations Court can be carried over into the Superior Court. Matrimonial Division, where the parties are the same and part of the relief sought in the latter court is alimony and support of wife and children, where the forum is the last matrimonial domicile of the parties and plaintiff-spouse has continuously remained domiciled there, where service was made at the only address and to the only available person whence notice might get to defendant, and where the forum state has, at the least, the legitimate interest that it is supporting the dependents of the recalcitrant defendant. The contacts are more than minimal. There is no offense to traditional notions of fair play and substantial justice. Interfamilial notice was made available. United States v. Smith, supra. Moreover, defendant knew his wife and children were in New Jersey without any support from him. The balance of trial convenience is in favor of New Jersey.

Legal writers have not been silent on the subject matter. Generally, “Long Arm Jurisdiction in Alimony and Custody Cases,” 73 Columbia L. R. 289 (1973) — the existence of a marital domicile has as many consequences as economic activity. Holding an individual responsible for his actions in the state where they occurred does not violate due process, (at 296-297); “Using Long Arm Jurisdiction to Enforce Marital Obligations,” 42 Miss. L. J. 183 (1971) — wives who need support most are least able to litigate across state lines; “Extension of the Illinois Long Arm Statute-Divorce and Separate Maintenance,” 16 DePaul L. R. 45 (1966) — a state is as interested in marriage and the family as it is in tortious acts or the doing of business; “Long Arm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness,” 69 Mich. L. R. 300 (1970); 1 Rutgers Camden L. J. 117, supra. See also, Stucky v. Stucky, 186 Neb. 636, 185 N. W. 2d 656 (1971); Mizner v. Mizner, supra.

Cooke v. Yarrington, 62 N. J. 123 (1973), is instructive in the liberality of approach in an analogous situation to the proposition that our system of justice is both living and vigorous. Even the dissent is relevant to our facts

* * * There is no indication whatever that defendant’s removal from the State in the meantime was motivated in any way by plaintiff’s pending claim against him. [at 131-132]

Appropriate thereto is comment contained in Shanks, The Art and Craft of Judging The Decisions of Judge Learned Hand, 17. See also, Bartkus v. Illinois, 359 U. S. 121 (1959), where the Supreme Court speaking through Mr. Justice Frankfurter, stated:

The Anglo-American system of law is based not on transcendental revelation but upon the conscience of society ascertained as best it may be by a tribunal disciplined for the task and environed by the best safeguards for disinterestedness and detachment, [at 128, 79 S. Ct. at 680]

There will be a judgment of divorce, with alimony and support of $462 a month payable to the county welfare board through our Probation Department, with allocation in accordance with the welfare board rules.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ALBERT I. WIGLER, PLAINTIFF-RESPONDENT, v. CITY OF NEWARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1973
    Decided October 9, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Melvin Simon argued the cause for appellant (Mr. William E. Walls, attorney).

      Mr. Conrad N. Koch argued the cause for respondent (Messrs. Accardi, & Koch, attorneys).
   Per Curiam.

Defendant appeals from a judgment entered on a jury verdict in favor of plaintiff in the amount of $54,300.

Plaintiff owns certain buildings and personal properties located on Springfield Avenue and Sayers Street in Newark, which he contends were damaged and vandalized by riots during the nights of July 12 through 19, 1967. He filed a complaint seeking damages from defendant city, based upon A. J. S. A. 2A :48-1 which authorizes recovery against municipalities for damages caused by riots if certain conditions are met.

Defendant first argues that plaintiff failed to present sufficient evidence to prove that the loss sustained was the result of riot rather than a criminal event committed impersonal gain. In support of this contention defendant relies upon the case of A & B Auto Stores of Jones Street v. Newark, 59 N. J. 5, 17 (1971), wherein the court observed that N. J. S. A. 2A:48-1 is not applicable to damages resulting from a common criminal event committed for the private gain or gratification of the offenders merely because they number three or more.

The city, in effect, asserts that since plaintiff did not produce any witnesses to the actual entry and destruction of his premises, he cannot prevail in this suit against the city.

The damaged properties were located in the eye of the storm. Plaintiff was prevented from approaching them for several days by police, who had sealed off that particular area. There is sufficient credible evidence in the record from which the jury could properly conclude that plaintiff’s losses were the result of a riot.

It is next argued that it was error for the court to exclude from evidence plaintiff’s sworn petitions for tax appeal purposes previously filed with the city, as admissions against interest under Evidence Rule 63(7). The trial judge permitted extensive cross-examination based upon the petitions. He excluded them from evidence, exercising the discretion vested in Mm by Evidence Bule 4, on the ground they contained irrelevant material. Defendant was not prejudiced, and we hold there was no abuse of discretion.

The further contention that it was error to exclude the complaint from evidence is specious for the record does not disclose any offer of the complaint into evidence by defendant.

Defendant also alleges reversible error in the conduct of the trial, resulting from note-taking by a single juror, under the following circumstances. During the course of deliberations, the jury requested supplemental instructions on two matters, namely, the fact-finding procedure outlined by the court in its charge and the inventory list. The court reinstructed the jury on the first and then read to the jury the inventory list, which consisted of over 20 items with dollar amounts ascribed to each. After the requested instructions were given and the jury retired to continue with their deliberations, defense counsel came to the court and indicated he was informed that a juror was making a list of the items as the court read them. It appears the list was made on an envelope. Neither counsel observed the procedure, and it was brought to the attention of defense counsel by someone else in the court room. It is contended this constitutes reversible error.

The practice of note-taking by jurors is not prohibited by any New Jersey statute, rule of court or decision. The matter becomes one of first impression.

The reasons advanced against this practice include the contention that the taking of notes by a juror may tend to distract his mind from the evidence which is being presented while he is taking notes; may distract the attention of other jurors from consideration of the evidence being presented; may tend to overemphasize either to himself or to other jurors the evidence on which he is taking notes; further, that the taking of notes might tend to be a confusing element for those jurors not trained or skilled in the note-taking process. Thorton v. Weaber, 380 Pa. 590, 112 A. 2d 344 (Sup. Ct. 1955); Corbin v. Cleveland, 144 Ohio St. 32, 56 N. E. 2d 214 (Sup. Ct. 1944).

During the trial of a case the judge, counsel and the court reporter are all busily engaged in taking notes. It is incongruous to expect only the jury to have the evidence, as it is given, indelibly inscribed on the “tablets of their memory.” Counsel would hardly urge as error, in a case tried by a judge without a jury, the fact that the trial judge took notes. The majority and better view is that in the absence of statute the matter of note-taking by jurors rests largely within the discretion of the trial judge. United States v. Campbell, 138 F. Supp. 344 (N. D. Iowa 1956) United States v. Standard Oil Company, 316 F. 2d 884, 897 (7 Cir. 1963); Watkins v. State, 216 Tenn. 545, 393 S. W. 2d 141 (Sup. Ct. 1965). See Annotation, “Taking and Use of Trial Notes by Jury,” 14 A. L. R. 3d 831 (1967).

As a general rule we see nothing improper in a juror taking notes during the course of trial. The trial jiidge has discretion to determine in the first instance if the case lends itself to the practice and to exercise control and direction over the manner in which the jurors exercise the right.

Tn this instance, assuming the single juror was taking notes, the practice was limited to that time period when the judge was recharging the jury in response to two specific questions posed by them. The instructions were concerned with an inventory list of over 20 items with values being ascribed to each in the testimony. Defendant points to no evidence of confusion, distraction, or prejudice. There was no testimony introduced disputing the individual items on the list or the dollar amounts read by the judge. Under our Rules of Court, R. 1:8-8, a list of various items of damages could properly have been prepared by either the attorney or the court and given to the jury to take into the jury room.

We see no error under the facts of this case in the juror taking and using notes to assist his memory.

The remaining grounds of appeal are that the verdict was excessive, against the weight of the evidence, that plaintiff was incompetent and should not have been permitted to testify, and that the court’s instruction was in error. Our examination of the entire record leads to the conclusion that they are without merit.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES ELLIS FOYE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1973
    Decided March 2, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Miss Rita L. Bender argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Miss Bender, of counsel and on the brief).

      Mr. Stephen S. Lippman argued the cause for respondent (Mr. Geoffrey Gaulkin, Prosecutor of Hudson County, attorney; Mr. Lippman on the brief).
   Per Curiam.

Defendant James Ellis Foye was indicted jointly with John Edward Turner for the February 8, 1970 felony murder of Wanda Edwards. N. J. S. A. 2A:113-1. At a separate trial he was convicted of murder in the first degree and sentenced to life imprisonment. N. J. S. A. 2A:113-4.

Wanda, who was 14 years old, was last seen alive at approximately 8:30 p.m. on February 8, 1970. Her body was found in the back of an abandoned truck in a vacant lot in Jersey City on February 21, 1970. An autopsy revealed four stab wounds in tire anterior chest wall which were the immediate cause of death. She also had sustained a moderate amount of subarachnoid brain hemorrhage. Her slacks had been torn in the seat and crotch, and her body yielded physical evidence that someone had had sexual intercourse with her shortly before her death.

The victim had attended a sorority meeting at about 6 r.M. on February 8 and had been expected to return home by 8 p.xr. At about 8:30 p.k., when last seen alive, she was walking towards her home. When she failed to arrive, and a search of the neighborhood was unsuccessful, the police were notified.

Wanda knew the defendant, He had taken her and hex sister to a Newark drive-in on one occasion, and on another occasion had taken them shopping. He had also given her a radio. On the evening of February 8, he, accompanied by Turner, had given her sister a ride to the bus stop. En route she had mentioned to them that she was looking for Wanda.

In a statement given to the police defendant related that on the night of Wanda’s disappearance her sister had told him and Turner that Wanda would be coming home from a sorority meeting, and they had waited for Wanda to come home in order to ask her “io have sex with them.” He stated: “We just took a chance to see if she would be alone. We had discussed between us whether we should ask her if she would or not. We had thought about it for a few days.” They waited until Wanda came down the street, he called her over, and she accepted his invitation to take a ride in his car. The three of them rode around for some time until they arrived at 95 Golden Street where they stopped and he and Wanda got out and urinated. Turner then came over and “fondled” Wanda, and when she started to scream Turner cut off her scream by placing his arm around her neck and stabbing her four times. Turner told him he did so because he saw a “cop coming on a motorcycle.” He used a hunting knife that belonged to defendant and was kept in his car over the sun visor. They then threw her body into the truck, Turner wiped the knife off with a rag, and they drove away.

Defendant was picked up on February 24, 1970 and detained for possession of a dangerous weapon (a knife) which was found in his car. Later he was questioned about the murder and at 9:15 p.m. he signed a paper indicating that he had been advised of his Miranda rights, that he understood them, that he wished to consult with his attorney, and did not wish to make a statement. At 4:45 a.m. on February 25 he signed another statement giving his version of the killing in which he indicated that he was familiar with his Miranda rights and waived his right to an attorney. This inculpatory statement constituted the keystone of the State’s case.

By his first and second points defendant challenges the admission of his statement into evidence upon the ground that it was obtained from him in violation of his right to counsel, that he did not waive such right, and that, in any event, it was involuntary.

The trial judge held a voir dire hearing out of the presence of the jury before ruling on the admissibility of the statement. The State adduced testimony that defendant had been initially arrested at approximately 4:30 p.m. on February 24 when he approached his car, which the police suspected had been involved in the murder. When they found what they considered a dangerous knife above the sun visor he was taken into custody and booked at the station house on that charge. When later, in response to a police inquiry, defendant stated that he wished to consult with his attorney, he was permitted to make a phone call. Instead of calling an attorney he called his wife, informed her of his arrest, and instructed her to call Goldstaub, his (then and present) attorney. The latter failed to appear and there was no further contact between defendant and his wife or the attorney.

While he was still in police custody, and without advising him that he was also a suspect in the homicide, one of the detectives inquired whether he knew a girl by the name of Wanda Edwards. In response defendant answered that he did know her and followed up by saying, “If you have any idea that I’m involved in the murder, I want to take a lie detector test.” He was then advised that he was a suspect in the homicide. When he was thereafter brought to the polygraph section oí the detective bureau he declined to take the test, stating that he wanted to “think about it.” About half an hour later he again declined to take the test. Eventually, at 7:5o p.m., he agreed to do so with results which were termed “partially conclusive.”

Thereafter, at about 9:15 p.m. defendant was formally charged with the murder, and the Miranda warnings listed on the charge sheet were read to him. He again stated that he had his own lawyer and wanted to consult with him. Although he had access to a phone ho made no request to make another phone call, nor did he again refer to his attorney. He was later taken downstairs to a room in which the “desk duty” officer was sitting, where he sat on a bench. While there he was given some food and coffee.

At approximately 11 p.m. defendant stated that he had decided to tell about his involvement in the homicide. His attention was then directed to his previous request for an attorney and ho was asked if he still wished to have one present before giving a statement. He said that he did not want a lawyer but wanted to get the matter “off his chest.” In his verbal statement he involved Turner stating, “I want to help you fellows. If you get Turner you have got your man.”

The police thereupon instituted a search for Turner and he was apprehended and brought in at about 3 a.m. He gave a statement admitting his complicity in the homicide, and thereafter confronted defendant in the presence of a number of police officers and related the events loading up to the murder, stating that defendant had been with him. At about 4:45 a.m. defendant gave his written statement to the police.

For the purpose of showing his familiarity with the procedures of custodial interrogation, defendant’s prior record of arrests and convictions dating back 20 years, was introduced.

Defendant sharply contradicted the testimony of the police; he denied ever having told the police anything about the murder of Wanda Edwards; he stated that he had been hit by a rubber hose and otherwise pushed, shoved and threatened by the police; that he had been denied permission to call his attorney; that he had only been permitted to call his wife and tell her that he was there and would be home shortly; that he had no sleep; that he signed his name to the “charge sheet” (which contained the Miranda warnings) only out of fear because the police had told him to do so. He averred that he never waived his right to consult with his attorney and never voluntarily consented to the giving of a statement. His attorney, Goldstaub, stated that he had received a message from his secretary informing him that Turner had called, but when he called the Eirst Precinct to speak to Eoye he was told that Poye had not been arrested but had only come to the Eirst Precinct to look at some photos. He testified that further efforts by him to locate Eoye were unsuccessful. Sergeant Borseso, with whom he testified he first spoke, denied having received a phone call from Goldstaub.

The court, in arriving at its conclusion as to admissibility, made detailed and specific findings of fact as to the events which transpired during defendant’s custodial confinement and found, beyond a reasonable doubt, that defendant had been advised of his constitutional rights, had freely and voluntarily waived those rights, and that the statement was voluntary. See State v. Hampton, 61 N. J. 250, 272 (1972).

We hold that the overwhelming weight of the evidence presented at the voir dire supports the findings and conclusions of the trial judge. As we read defendant’s brief he appears to contend that once he refused to give a statement and requested to consult with counsel, any statement given thereafter was of necessity coerced. However, merely because he had an attorney and had asked for him did not preclude him from thereafter affirmatively volunteering information, thereby waiving his right to remain silent and to have eounsel present. State v. Graham, 59 N. J. 366, 376 (1971). See also State v. McKnight, 52 N. J. 35, 44 (1968). The proofs fully support the conclusion that defendant was advised of his rights but voluntarily chose not to exercise them. See State v. Kremens, 52 N. J. 303 (1968).

While defendant in his brief refers to several examples of “malpractice” by the police during the period he was in custody, we conclude that they were for consideration by the trial judge on the issue of voluntariness and find no cause to disturb his finding on that issue. The suggestion that defendant may have been under the influence of alcohol because he allegedly had consumed two pints of gin and some bourbon prior to his arrest — and another drink while in custody — is belied by tire State’s proofs and by defendant’s appearance at the time of and immediately following his arrest, as well as when his statement was given on the following morning. His testimony that he had been mishandled by the police was inconclusive at most, was supported by no physical evidence, and was disputed by all of the State’s witnesses. Their testimony is persuasive that defendant himself had asked to take the polygraph examination (apparently in the belief that it would clear him by involving Turner), and that it was not administered until he had signed the requisite permission. While the initial inquiry of defendant before he was advised of his Miranda rights (which revealed only that he knew the victim and owned a car) should not have taken place, there is nothing to indicate that a continued interrogation was conducted at that time or that the posing of those questions coerced defendant’s waiver and written confession on the following morning. Cf. State v. Billingsley, 46 N. J. 219, 234-35 (1966). We find State v. Slobodian, 57 N. J. 18 (1970) to be inapposite. In that case defendant had requested to talk with his attorney before making a statement and had not waived his right to counsel. Likewise in Schenk v. Ellsworth, 293 F. Supp. 26 (D. Mont. 1968), cited by appellant, the defendant had never been specifically informed by the police before he gave his statement that he was a murder suspect. Here there was testimony that at 9 p.m. on February 24th defendant had been so advised. He was 41 years of age, intelligent, and not unfamiliar with legal process (his criminal record included six prior arrests for rape).

By his second point defendant urges that the jury was not properly charged as to the intent essential to a finding of guilt on his part. We do not agree. Defendant was tried for felony murder on the theory that he had been either a principal or an aider and abettor in the forcible rape of the victim. On the question of intent the trial judge charged, in pertinent part:

To find the defendant guilty of murder, you must first find that he committed or attempted to commit the rape. A specific intent to commit the offense of rape is an essential element in the crime of murder as charged in this ease. An intent to kill is not an essential element, but there must be an intent to commit the crime of rape.

Immediately before this the jury had been correctly charged:

Rape as a crime is defined as the carnal knowledge of a woman forcibly and against her will. Carnal knowledge means sexual intercourse between a male and female. The essential elements of the crime of rape are carnal knowledge by force by the male and non-consent by the female.

This was a correct exposition of the law. Later, after correctly defining aiding and abetting, the jury was instructed that any person who aided and abetted another in the commission of a crime was punishable as a principal. The judge went on to state:

Therefore, if you find beyond a reasonable doubt that the defendant and John Edward Turner associated themselves in a criminal venture, and each participated in the venture, then it is immaterial, for instance, that only one participant actually murdered Wanda Edwards or that only one participant physically did the killing.

This correctly stated the law. N. J. S. A. 2A:85-14; State v. Rosania, 33 N. J. 267, 270 (1960), cert. den. 365 U. S. 864, 81 S. Ct. 828, 5 L. Ed. 2d 826 (1961).

Under this point it is suggested that the jury may have been misled into believing that if defendant intended only to have consensual, as distinguished from forcible, intercourse with the victim he could be found guilty of felony murder. We disagree. Consideration of the charge as a whole makes it clear that the rape referred to was the forcible rape of the victim and that defendant could only be found guilty if he forcibly raped or attempted to forcibly rape the victim, or aided and abetted Turner in doing so. We hold that the jury was properly a.nd adequately instructed and the court’s refusal to supplement the charge was not error. State v. Thompson, 59 N. J. 396, 411 (1971).

Defendant’s final point challenges the court’s denial of his motion for acquittal. We find it to be without merit. Applying the test laid down in State v. Reyes, 50 N. J. 454, 458-459 (1967), we are satisfied that there was sufficient evidence upon which the jury could have found defendant guilty beyond a reasonable doubt of the crime charged. The evidence was plenary that the deceased had been the victim of a forcible rape. When her body was found her panties were missing and the slacks she had been wearing had been torn in the crotch and seat. An autopsy revealed the presence of spermatozoa and (nonmenstrual) blood. Her screams which, according to defendant’s statement, were silenced by Turner by means of his knife, are strong evidence that the two were attempting to accomplish their objective by force or had already done so. The jury was not bound by defendant’s statement that he and the victim got out of the car only to urinate and that Turner had only attempted to “fondle” her when she started to scream. The presence of the knife outside the car (which defendant stated he kept above the sun visor), the fact that defendant and (allegedly) the victim were the first to exit the car, and that when Turner’s turn came he had the knife in his hand — as well as the cool, precipitate manner in which defendant and Turner disposed of the body and drove away from the scene — adequately support an inference that the victim had been raped.

The judgment of conviction is accordingly affirmed.


author: Marzulli, J. S. C.,

text:
    MILDRED S. BLUM, PLAINTIFF, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    Superior Court of New Jersey Law Division
    Decided September 14, 1973.

      Messrs. Podvey and Sachs for plaintiffs.

      Messrs. Stryker, Tams and Dill for defendants.
   Marzulli, J. S. C.,

Temporarily Assigned. This is a motion for summary judgment brought by the defendant Prudential Insurance Company of America. The court’s decision turns on the meaning of the clause “actively at work on full time” contained in an insurance policy issued by defendant to plaintiff’s deceased husband. It is plaintiff’s contention that her husband was “actively at work on full time” on the effective date of the policy. Defendant asserts that as a matter of law the assured was not so employed.

The facts of the case are as follows:

On October 1, 1947 Defendant issued a group life insurance policy to the trustees of the American Institute of Certified Public Accountants Insurance Trust. Pursuant to the issuance of this group policy, Max L. Blum, being a partner in a participating firm, was insured in the event of death for $10,000. Plaintiff Mildred S. Blum was the designated beneficiary.

This policy and later policies were issued without a physical examination but subject to the condition that the assured be “actively at work on full time” on the effective date of the policy. The purpose of such provision was to delay coverage to those who were incapacitated and not actively in the employ of the designated firm. The benefits payable to the designated beneficiary were raised to $20,000, effective October 1, 1954. On February 28, 1969 the American Institute of Certified Public Accountants Insurance Trust informed participating firms that they could increase death benefits receivable from $20,000 to $80,000, effective April 3, 1969. The increased coverage was dependent on the assured being “actively at work on full time” on the effective date of the policy.

During the months preceding April 1, 1969 Blum was in Florida because of a heart condition. During his stay there, his partner, Wizon, was in charge of office affairs in New Jersey. While in Florida Blum had telephone conversations and advised office clients who were in the Miami area.

Blum’s health took a turn for the worse, and in late . March 1969 he decided to return to New York “as the last chance.” PTe arrived in New York on March 30 or 31, 1969 and met with his partner. On March 31, 1969 he entered Beth Israel Hospital. He died at 4:30 p.m. on April 3, 1969.

Plaintiff concedes that there being no material fact in issue, the court’s sole responsibility is the construction of the phrase “actively at work on full time” on the effective date of the policy.

The court is mindful that the purpose of summary motions is to expedite matters and to avoid fruitless and frivolous litigation. At the same time, such motions should be granted only with extreme caution and only where the record shows palpably that there is no material fact in issue. Frank Rizzo, Inc. v. Alatsas, 27 N. J. 400 (1958). Concomitantly such motion should be granted where the single issue is one of law, as in the case at bar. R. 4:46-2, 4 :46-1 et seq.; Felbrant v. Able, 80 N. J. Super. 587 (App. Div. 1963). More importantly, the court, in considering such motion, will view that evidence in support of such motion most critically and that opposing the motion in a most favorable light. The reason for such perspective is to guard against closing the halls of justice to those most deserving of its protection.

While construction of the phrase “actively at work on full time” is of first impression in New Jersey, the courts of sister states have spoken on this issue and it is to these decisions that we must turn. In Elsey v. Prudential Ins. Co., 262 F. 2d 432 (10 Cir. 1958), the court, in addressing the question of whether the employee was actively at work on the effective date of the policy, said:

Actively at work on full time means actually on the job and performing the employee’s customary work. Similiarly in McLean v. Metropolitan Life Ins. Co. 153 N. E. 2d, 349, 351 (Ohio Court Common Pleas 1957). The court finds nothing ambiguous about the term actively at work, and from the facts stipulated, John H. McLean was not actively at work at any time after September 1, 1951. In fact he was totally disabled, unable to work, and did not appear at his place of employment after September 1, 1951, (the effective date of the insurance). [At 435]

Accord: Williams v. Metropolitan Life Ins. Co., 448 S. W. 2d 295 (Mo. Ct. App. 1969); Marshall v. Connecticut General Life Ins. Co., 371 S. W. 2d 363 (Kansas City Ct. App. 1963); White v. Great American Reserve Ins. Co., 342 S. W. 2d 793 (Tex. Civ. Ct. App. 1961).

In the aforementioned cases the employee was clearly not performing any services for his employer on the effective date of the policy. The case at bar is somewhat different in that the assured is a partner in the accounting enterprise and therefore has different rights and obligations in comparison with the usual employee. The court in Commercial Ins. Co. of Newark v. Burnquist, 105 F. Supp. 920 (D. Iowa 1952), addressed this question when it said:

It seems clear that a lawyer who is a. bed patient in a hospital conferring only occasionally with the members of his firm and less frequently with clients cannot he regarded as being on “active full time duty”. The situation is not changed by the fact that the firm of which he is a member continues to pay him his usual percentage of the firm earnings. The Court holds as a matter of law that the defendant was not on “active full time duty-’ on [the effective date of the policy"]. [At 930]

Had Blum actually performed any of his usual functions while in the hospital the court might be faced with a different decision. In Boyer v. Travelers Ins. Co., 7 Cal. 2d 615, 61 P. 2d 925 (Sup. Ct. 1936), the court stated:

In order for the employee to have been “actively at work,” it would have been necessary for him to have been doing some of the things for which he was employed, i. e. making contacts, instead of being confined to his bed under an oxygen tent, entirely unable to make those contacts for which he was employed. The evidence here discloses that Boyer was not able to do what Mr. Lowe wanted and requested his employer to wait until he got out. [At 927]

The court in Jackson v. Metropolitan Life Ins. Co., 34 Ohio St. 2d 138, 296 N. E. 2d 679 (Sup. Ct. 1973), rejected the contention that the term “actively at work” was ambiguous, stating:

We hold that where decedent was not performing his job or assigned duties on [the effective date of the policy] he was not “actively at work.”

This court, in granting defendant’s motion for summary judgment, holds that the phrase “actively at work on full time” on the effective date of the policy means that the assured must be engaged in some active advancement of the business. Mere passive use of name and reputation does not so qualify.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANGELO’S MOTOR SALES INC., NKA UNIVERSAL IMPORTS LIMITED, INC., AND ANGELO PARMIGIANI, DEFENDANTS-APPELLANTS, AND GREGORY RUE, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1973
    Decided October 1, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Alfred O. Powell argued the cause for appellants (Mr. James Logan, Jr., attorney; Mr. Alfred O. Powell, of counsel and on the brief).

      Mr. Carl W. Swanson, Jr., Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Carl W. Swanson, Jr., Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendants Angelo’s Motor Sales Inc., now known as Universal Imports Limited, Inc. (corporation), and Angelo Parmigiani, the president and principal stockholder of the corporation (Parmigiani), appeal judgments of conviction after a jury trial for offenses hereinafter mentioned. A codefendant, Gregory Eue, has not appealed judgment of conviction entered against him.

The record discloses that the jury could have found that during the month of August 1969 William E. Mullins Jr. visited the premises of the corporation to purchase a new ear and spoke with Gregory Eue, a salesman employed by the corporate defendant. During the discussion with Eue, Mullins came to realize that a new ear would be too expensive. Eue then showed him a 1969 Austin Healey Sprite. Eue represented that the Sprite was a new “demonstrator” and, therefore, was priced lower than an entirely new car. An order to purchase the Sprite was signed by Mullins on August 13, 1969 and title was transferred from the corporation to him on August 22, 1969.

After the purchase of the car, certain problems arose with respect to it. The father of the purchaser went to the premises of the corporation and asked for the warranty book. When he eventually received the warranty book, he noted that it indicated that one Ronald A. Boyd was the original purchaser of the Sprite. The father returned to the corporate premises and demanded an explanation. He was told on two occasions by Rue and Parmigiani that Boyd was a salesman employed by the corporate defendant and that the title to the Sprite had been placed in Boyd’s name for corporate reasons. Further investigation by Mullins revealed that the car was not in fact a new demonstrator but rather a used car, having been previously sold to and repossessed from Boyd. Negotiations to resolve the dispute could not be resolved and a civil action was instituted by Mullins against Angelo’s Motor Sales Inc. and the salesman Gregory Rue.

After the institution of the action interrogatories were propounded by Mullins’ attorney to the corporate defendant. Answers to the interrogatories were prepared by the attorney for defendants in the civil action, and were signed by Parmigiani as president of the corporation. The interrogatories contained a certification in lieu of oath, as provided by R. l :4-4(b). Two of the answers to those interrogatories are the subject of the false swearing counts of the indictment.

The civil action was settled. The Sprite was returned to the corporation and the entire purchase price was refunded to Mullins.

Parmigiani and Rue were summoned before a special Mercer County grand jury during November 1971. Both testified. On December 3, 1971 the grand jury returned a six-count indictment charging the corporation, Parmigiani and Rue with the following offenses: Count one charged the corporation, Parmigiani and Rue with conspiracy to defraud Mullins of money by means of false pretenses, by falsely pretending to Mullins that the Sprite was a new demonstrator when in fact the automobile was used. N. J. S. A. 2A:111-1. Pour overt acts committed in execution of the conspiracy were alleged. N. J. S. A. 2A:98-1 and 2. Count two charged the corporation, Parmigiani and Rue with obtaining money by false pretenses, N. J. S. A. 2A:111—1, and representing to Mullins that the automobile was a new demonstrator, when in fact it was used, having been previously sold to Boyd and subsequently repossessed. Count three charged Parmigiani with false swearing, N. J. S. A. 2A:131-4,.in that he gave false answers to interrogatories material to a civil action pending in the Chancery Division between Mullins, as plaintiff, and the corporation and Rue, as defendants, concerning the sale of the car in question. The alleged false swearing was that Parmigiani answered that the mileage on the automobile at the time of its sale was “approximately 1,911 miles” when in fact the mileage was greatly in excess of that figure. Count four charged Parmigiani with false swearing, N. J. S. A. 2A:131-4, in that he answered in the interrogatories material to the same civil action that the automobile’s mileage reading on its odometer had not been changed by the corporation prior to its sale to Mullins. Count five charged Rue with perjury before the grand jury on November 12, 1971. N. J. S. A. 2A:131-1. The claimed perjury was that Rue testified that he did not tell Mullins that the car was a new demonstrator and that he had told him that it was a repossessed car. Pinally, count six charged Rue with perjury before the grand jury on November 5, 1971. N. J. S. A. 2A:131-1. The claimed perjury was that Rue denied under oath that he met with two representatives of the Better Business Bureau in December 1969.

After a motion to .quash the indictment was denied the trial commenced on June 4, 1972. The factual dispute at the trial involved the questions of whether Rue represented to Mullins that the car was a new demonstrator, and whether the mileage had been turned back prior to the sale. Motions to dismiss all counts of the indictment were made prior to jury selection, at the conclusion of the State’s case, and at the conclusion of defendants’ case. The motions were denied. A motion to sever the false swearing counts against Parmigiani from the other charges was denied. A similar motion with respect to Rue’s perjury counts was also denied. At the conclusion of the State’s case, a motion for acquittal on the perjury charge contained in count six against Rue was granted by the trial judge because of a variance between the grand jury transcript of his testimony and that contained in the indictment. A defense motion for a mistrial based on that dismissal was denied.

On July 6, 1972 the jury returned verdicts of guilty as to all defendants mentioned in each of counts one through five.

Motions for a new trial were denied and on January 5, 1973 Parmigiani was sentenced to a term of 60 days in the Mercer County Workhouse on count one. He received terms of 60 days in the workhouse on each of the remaining three counts, all to run concurrently with count one. Defendant corporation was fined $1,000 on each of the two counts to which it had been convicted. Rue was sentenced to a term of 30 days in the Mercer County Workhouse on count one, and two terms of 30 days each on counts two and five. The sentences on counts two and five to run concurrent to the sentence imposed under count one.

I

Defendant first urges that his convictions under counts three and four should be reversed, arguing that the convictions were improper because he signed a “certification in lieu of oath” at the foot of the answers to the interrogatories and was not administered a formal oath.

N. J. S. A. 2A:131-4 provides:

Any person who willfully swears falsely in any judicial proceeding or before any person authorized by any law of this state to administer an oath and acting within his authority, is guilty of false swearing and punishable as for a misdemeanor.

The offense is distinguishable from the crime of perjury, a high misdemeanor, which is established under the provisions of N. J. S. A. 2A:131—1:

Any person who willfully and corruptly commits perjury * * *, on his oath, in any action, pleading, indictment, controversy, matter or cause depending- or which may depend in a court of this state, * * * or in a deposition or examination taken or to be taken pursuant to the laws of this state or the rules of the supreme court of this state, before any public officer legally authorized to take the same, is guilty of a high misdemeanor.

N. J. S. A. 2A:131-4 is a legislative attempt to avoid the technical difficulties involved in a perjury prosecution and “to include certain commissions of falsehood under oath not within the classification of perjury.” State v. Kowalczyk, 3 N. J. 51, 59 (1949). Conviction requires that the false swearing was willful and intentional. State v. Fuchs, 60 N. J. 564 (1972).

The State concedes that Parmigiani did not take an oath but argues that an oath is not a prerequisite to a swearing.

The Legislature has established two separate instances of conduct which ¿re suffiicent to constitute a violation of N. J. S. A. 2A :131-4: (1) swearing falsely in any judicial proceeding, and (2) swearing falsely before any person authorized by any law of this State to administer an oath and - acting within his authority. We conclude that the certification of false answers to interrogatories propounded in a pending civil action satisfies the first statutory category. We reach this conclusion because our reading of the statute satisfies us that it is not the formal administration of an oath which the Legislature has deemed to be the crucial factor in the offense proscribed therein, but rather the verification of a false statement as true by any means.

In the past, interrogatories were required to be answered under an oath. A later amendment to the Rules of Court allowed the certification in lieu of oath as a convenience for attorneys and the parties involved. B. 1:4-4 (b). The change in rules was not intended to degrade the solemnity of the affirmation of the truth of the answers, nor was it intended to reduce the penalty for providing false answers to interrogatories. In our view, the adoption of the certification procedure merely constituted a change in ritual and not in substance. Certification is only another way of swearing or affirming. It is nothing in itself except as a perceptible manifestation of the intent to verify the statement certified.

Defendant urges that the false swearing statute must be strictly construed so as not to create a liability not clearly fixed by its words. We agree that penal statutes are to be strictly construed, State v. Vanderhave, 47 N. J. Super. 483 (App. Div. 1957), aff’d 27 N. J. 313 (1958), but such construction must not be so unduly narrow or artificial so as to disregard manifest legislative intention. State v. Rucker, 46 N. J. Super. 162, 167 (App. Div. 1957), certif. den. 25 N. J. 102 (1957). A reasonable interpretation of a statute should be made based upon the legislative purpose as revealed by the composite thrust of the whole statutory scheme. State v. Congdon, 76 N. J. Super. 493, 500 (App. Div. 1962); State v. Gattling, 95 N. J. Super. 103, 108 (App Div. 1967), certif. den. 50 N. J. 91 (1967).

The rule of strict construction does not prohibit a court from reading a statute in relation to the mischief and evil sought to be suppressed, State v. Meinken, 10 N. J. 348, 352 (1952), and while a penal statute cannot be extended by implication and intendment, its clear implication and intendment is not to be denied. State v. Brenner, 132 N. J. L. 607, 611 (E. & A. 1945). Construction which would have the effect of placing it in the power of a transgressor to defeat the object and purpose of the law by evasion is not to be favored. State v. Gratale, 26 N. J. Super. 581, 585 (App. Div. 1953).

In State v. Provenzano, 34 N. J. 318 (1961), our Supreme Court noted:

The goal of the interpretative process is the intent of the Legislature. It is axiomatic that a statute will not be construed to lead to absurd results. All rules of construction are subordinate to that obvious proposition. The rule that a penal statute should be strictly construed does not mean that a ridiculous result shall be reached because some ingenious path may be found to that end. Rather it means that a statute shall not be extended by tenuous interpretation beyond the fair meaning of its terms lest it be applied to persons or conduct beyond the contemplation of the Legislature. In part that rule also is designed to avoid surprise to the citizen who conscientiously seeks to stay within the law. * *' * [at 322]

Under the facts presented here, it cannot be said that Parmigiani was not given notice that his conduct was criminal because the wording of the certification itself belies such a proposition. Nor can it be said that defendant Parmigiani was not apprised that the answers were to be considered as “under oath,” since the introductory paragraph to the interrogatories specifically referred to a demand that the answers be given under oath.

We do not hold that the Legislature in passing the false swearing statute (N. J. S. A. 2A :131-4) specifically intended to encompass the false answering of interrogatories propounded in a judicial proceeding which are represented to be true by the signing of a certification in lieu of oath. We only need observe that the court rule permitting such certification was adopted after the passage of the statute. We do find, however, that the Legislature, in adopting N. J. S. A. 2A :131-4, intended to prevent and punish false statements formally sworn to by means of an oath as well as the solemn verification of false statements during the various stages of judicial proceedings. We find that the conduct of defendant Parmigiani falls clearly within the legislative intent.

[The remainder of the opinion discusses various points raised by defendants urging reversal, including claimed restrictions by the trial judge of cross-examination of State’s witnesses, erroneous evidence rulings, misjoinder, improper tactics of the prosecutor, and erroneous instructions to the jury with respect to inconsistent verdicts. As to this last claim, the court found that while technically erroneous, the challenged portion of the charge constituted harmless error when considered in the context of the charge as a whole and the proofs adduced by the State.]

The judgments of conviction are affirmed.


author: Seidman, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HERMAN LAMB, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 13, 1973
    Decided October 10, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Frank R. Krack, Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. George H. Henningsen, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. George F. Kugler, Jr., Attorney-General of New Jersey, attorney).
   The opinion of the Court was delivered by

Seidman, J. A. D.

Defendant, after a trial to a jury, was convicted on an indictment charging embezzlement and sentenced to a suspended term of 3 to 5 years in State Prison and fined $1000 payable at the rate of $25 per week. He appeals, contending (1) the trial court abused its discretion in not granting a continuance, (2) the trial court erred in denying Ms motion for a judgment of acquittal, (3) the prosecutor’s comments in summation constituted plain error, and (4) the jury instruction in part constituted plain error.

I

The request for a continuance, which the trial judge denied, was actually to place the case on the inactive list because of the illness of one Prank Culver, claimed to be a material witness in defendant’s behalf.

Culver, who was also indicted for his involvement in the events leading to the charge against defendant, suffered a heart attack during his own earlier trial, and a mistrial was declared. Defendant asserts that because of an allegedly exculpatory statement made by Culver, the latter’s testimony was essential to his defense. Prom available medical information, including the results of a court-ordered examination, Culver’s condition is concededly such that testifying in court or by deposition could be fatal. Moreover, it appears that Culver’s counsel would not permit him to give testimony in any manner since the charges against his client were still open.

The granting of a continuance is a matter exclusively within the province and sound discretion of the trial judge, and should not be upset unless it appears from the record that the defendant suffered manifest wrong or injury. State v. Zied, 116 N. J. L. 234, 239 (E. & A. 1935); State v. Tulenko, 133 N. J. L. 385, 391 (E. & A. 1945); State v. Smith, 87 N. J. Super. 98, 105 (App. Div. 1965). In the particular circumstances of this case, we perceive no abuse of discretion by the trial court. Moreover, aside from the probability that Culver would never be able to testify or, if he was able to, that he would claim his privilege against self-incrimination, our review of the record discloses that the exculpatory effect of the proposed testimony, in the light of defendant’s own testimony at the trial, would have been minimal at best.

II

Also without merit are defendant’s contentions that the prosecutor improperly and prejudicially commented in his summation on the non-production of a potential witness for the defense, and that the trial court’s charge on the issue of credibility was misleading and prejudicial.

No objection to the prosecutor’s comment was voiced at the time, but defendant now seeks to invoke the plain error rule, arguing that the comment possessed a clear capacity to bring about an unjust result. We note, however, that it was defense counsel who advised the court of his intention to produce the witness. The witness was not called and the omission was not explained. In these circumstances we do not believe the comment was improper or prejudicial. State v. Clawans, 38 N. J. 162, 171-172 (1962), on which defendant relies, is factually distinguishable.

There was no objection to the portion of the charge complained of; but, in any event, the court’s remark that “the basic question is whether the complaining witnesses for the State are telling the truth or whether the defendant is telling the truth” was not improper in the context of the entire charge, which fully instructed the jury on the State’s burden of proof.

Ill

The principal thrust of the appeal is that defendant’s motion for a judgment of acquittal should have been granted because (1) the State did not prove all the elements of the crime charged in the indictment and (2) there was a material variance between the indictment and the proofs. A related point is that the trial court instructed the jury on issues at variance with the indictment.

The indictment charged that defendant

. . . [On] or about the month of December 1967 and on divers dates thereafter until the 1st day of April 1971, in the City of Vine-land, in the County of Cumberland aforesaid, and within the Jurisdiction of this Court, being the employee and agent of TWO GUVS DEPARTMENT STORE, unlawfully did embezzle and fraudulently take, receive, retain and appropriate to his own use money to the amount of about $20,000.00 belonging to the said TWO GUVS DEPARTMENT STORE with intent to defraud the said TWO GUYS DEPARTMENT STORE thereof contrary to the provisions of R. S. 2A :102-5 . . .

The State’s proofs were that defendant was employed as a receiving clerk at the Two Guys store in Vineland. His duties included receiving merchandise and verifying the same by checking the goods and signing delivery slips which were later sent to the home office for payment. Culver, a close friend with whom defendant resided, was a Bond bread delivery man. Over a period of time he delivered less bread and other baked goods than were shown on his delivery slips and presumably sold the remainder and pocketed the proceeds. With knowledge of the shortages, defendant signed the slips and invoices for the larger quantities which were paid by Two Guys. Defendant denied receiving any money for his participation in these transactions.

Defendant contends, first, that the facts adduced at the trial do not constitute the crime of embezzlement within N. J. S. A. 2A :102-5, because he never had actual or constructive possession of the bread and other baked goods and Two Guys itself had no property interest therein.

Leaving aside, for the moment, the language of the indictment, the issue to be resolved is whether the proofs add up to embezzlement. N. J. S. A. 2A :102-5 provides in pertinent part that

Any employee, agent, consignee, factor, bailee, lodger or tenant who embezzles or, with intent to defraud, takes money or receives, retains or appropriates to his own use or the use of another, any property or the proceeds of the sale of the same, or any part thereof, belonging to his employer, principal, consignor, bailor or landlord, is guilty of a misdemeanor (Emphasis supplied).

It would, therefore, constitute a violation of the statute if defendant, with intent to defraud, appropriated to the use of another (Culver) property belonging to his employer.

That defendant intended to defraud his employer seems clear. Furthermore, there is no doubt that the goods for which he signed belonged to his employer. Passage of title did not require that they first had to be unloaded from the truck since, under the Uniform Commercial Code, N. J. S. A. 12A :3-401(2), title to goods passes to the buyer upon delivery, unless otherwise specifically agreed. Delivery took place here when defendant signed the slips, thus evidencing receipt. Even though the goods may still have been on the truck at the time, defendant, nevertheless, was able to exercise a sufficient measure of control over them so as to be in constructive, if not actual, possession of the goods on behalf of his employer. State v. Kimbrough,, 109 N. J. Super. 57, 64 (App. Div. 1970).

Embezzlement embraces the intentional and fraudulent appropriation of the property or money of another by a person into whose hands it had lawfully come or to whom it had been entrusted. State v. Bobbins, 35 N. J. Super. 494, 497 (App. Div. 1955), aff’d 21 N. J. 338 (1956). Under the statute, it is sufficient if such appropriation is for the use of another, in this case Culver.

We are thus satisfied that the State’s proofs in this case spelled out the crime of embezzlement.

Defendant, however, advances the further contention of a fatal variance between the indictment and the proofs adduced at the trial, in that there was no proof he appropriated any moneys to his own use.

It is true that the case as tried differed factually from the precise language of the indictment. A charge, of course, must sufficiently identify the criminal event to enable the accused to defend and to defeat a subsequent prosecution for the same offense; hence, the indictment must allege all the essential facts of the crime. State v. LaFera, 35 N. J. 75, 81 (1961); State v. Lamoreaux, 29 N. J. Super. 204 (App. Div. 1954), aff’d 16 N. J. 167 (1954). The proofs developed need not adhere strictly to the allegations of the indictment. If the proofs presented substantially adhere to that outlined in the indictment and the indictment supplies sufficient information to apprise defendant of the actual charge against him, thus avoiding any possible prejudice, and protects him against a subsequent prosecution for the same offense, the variance will be deemed immaterial. State v. Davis, 61 N. J. Super. 536, 540-541 (App. Div. 1960).

Defendant does not claim surprise or prejudice. On the contrary, the opening statements of counsel and the manner in which the tria] proceeded indicate clearly that defendant was fully aware of what the State’s case would be. He did not seek a dismissal of the indictment prior to trial, nor did he object as the proofs unfolded. Not until the close of all the evidence did he argue, in his motion for a judgment of acquittal, that the State had failed to prove the case set out in the indictment, and even then stress was placed not so much upon the absence of proof that defendant had embezzled money, but rather upon the argument that the bread and other baked goods had not become the property of the emplo}rer, so that there could not have been an embezzlement.

Although the trial judge might well have amended the indictment to conform to the proofs, it should be observed that the word “embezzle” contains within itself the charge that the defendant fraudulently appropriated money or property. State v. Bobbins, supra, 35 N. J. Super at 498. Considering the totality of the circumstances, we are convinced that the defendant’s ability to prepare his defense was not impaired and that, in addition, he was not tried for an offense substantially different from the one recited in the indictment i. e., a violation of N. J. S. A. 2A :102-5.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM R. WILLIAMSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 24, 1973
    Decided October 11, 1973.

      Before Judges Collester, Lynch and Mehler.

      Mr. Joseph C. Doren, attorney for appellant (Mr. Laszlo Zacharias, Jr., of counsel and on the brief).

      Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney for respondent (Mr. Frederick J. Kalma, Assistant Prosecutor, on the brief).
   Per Curiam.

Defendant appeals his convictions for reckless driving and leaving the scene of an accident following a trial de novo on the record in the county court.

As grounds for reversal he contends that (1) the County Court judge erred in limiting his counsel to a 15-minute argument; (2) he erred in disregarding inconsistencies and contradictions of the State’s witnesses and in allowing improper questions and responses which were used as a basis for convicting defendant; (3) he erroneously embodied intent in finding defendant guilty of leaving the scene of an accident, and (4) the municipal court judge erred in denying a defense request for sequestration of witnesses.

The County Court judge did not abuse his discretion in limiting the time allowed counsel for argument inasmuch as the judge indicated that he had already read the transcript. Moreover, counsel failed to object to the time limit imposed by the judge.

At the outset of the trial in the municipal court defendant requested that witnesses be sequestered. His request was denied. While a timely motion for sequestration of witnesses should ordinarly be granted, State v. Di Modica, 40 N. J. 404 (1963), the rule is not so hard and fast that it must apply in all circumstances. Under varying conditions the rigor of the rule may be relaxed in the trial court’s discretion. 6 Wigmore on Evidence, § 1840 at 361. See also, Capitol Cab Corp. v. Anderson, 194 Misc. 21, 85 N. Y. S. 2d 767, 769-770 (Mun. Ct., City of New York, 1949), aff’d 197 Misc. 1035, 100 N. Y. S. 2d 39 (Sup. Ct. 1950), where the court noted that

Of necessity, what practical measures should be taken to enforce the rule [as to sequestration] is dependent upon various factors, such as, the purpose sought to be effected, the facilities of the courthouse and court officers, the personal needs of the witnesses, the length of time the sequestration is desired, etc.

Even though we do not know what facilities and personnel were available at the municipal court where this case was tried, we are aware that facilities and staff are generally limited in a municipal court. Accordingly, sequestration should not be required as a matter of course, on request, in traffic court cases, and was not allowable as of right in this case. Moreover, we find no abuse of discretion and no prejudice. See State in the Interest of W. O., 100 N. J. Super. 358 (App. Div. 1968).

The remaining grounds urged for reversal by defendant essentially raise various matters relating to the sufficiency of the evidence to sustain the convictions. We are satisfied, upon a review of the record, that the verdicts could reasonably have been reached on sufficient credible evidence. See State v. Johnson, 42 N. J. 146 (1964).

Affirmed.


text:
    IN THE MATTER OF MALVERN G. BURROUGHS, CHARGED WITH CONTEMPT OF COURT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MALVERN BURROUGHS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 10, 1973
    Decided October 11, 1973.

      Before Judges Conford, Handler and Meanor.

      Mr. Clifford. N. Herbstman, attorney for appellant (Mr. Jerome I. Goer on the brief).

      Mr. Sherwin D. Lester, Bergen County Prosecutor, attorney for the respondent (Mr. Adam Lawrence, Assistant Prosecutor on the brief).
   Per Curiam.

Defendant appeals two separate convictions of assault and battery (N. J. S. A. 2A :170-26) and contempt of court, which were consolidated. The separate charges were tried concurrently before a County Court judge, as a County Court proceeding with respect to the contempt charge and as a municipal court matter with respect to the disorderly persons offense. Upon the determination that defendant was in contempt, an appeal was taken directly to the Appellate Division. Eolio wing the determination of guilt of the assault and battery charge, defendant appealed this conviction to the County Court, which affirmed that conviction after a hearing de novo on the record below. This assault and battery conviction was then appealed to the Appellate Division wherein it was consolidated with defendant’s appeal from the judgment of contempt.

The charges stem from defendant’s actions directed against Andrew Nicol, a constable of the Borough of Eiver Edge who had been retained by a private law firm to serve a subpoena duces tecum, upon defendant in connection with a pending civil action. The evidence appertained to Nicol’s attempt to effectuate service upon defendant, initially at his home and later at his place of business, and defendant’s conduct in resisting this service of process, including his physical contact with Nicol.

We find no merit in defendant’s contention that Nicol under the circumstances was a trespasser and that this justified the use of “reasonable force” to eject him. Nicol, as an officer acting for the court, was entitled to effectuate service of civil process and to enter defendant’s premises peaceably for that purpose; 62 Am. Jur. 2d, Process, § 58 at 840; 72 C. J. S. Process § 34(d) at 1043. Also without merit is defendant’s argument that the convictions were the result of an improper use of hearsay testimony.

Our independent examination of the record of the proceedings satisfies us that the convictions upon the respective charges were based upon sufficient credible evidence present in the record. State v. Johnson, 42 N. J. 146 (1964).

Affirmed.


author: Ackerman, Harold A., J. S. C.

text:
    CAROL D’ARIENZO AND ARTHUR D’ARIENZO, PLAINTIFFS, v. CLAIROL, INC., A CORPORATION, JAMES WHOLESALE DRUG CO., INC., AND VALLEY FAIR OF IRVINGTON, INC., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 21, 1973.

      Mr. Lance A. Posner for plaintiffs (Messrs. Brach, Eichier, Rosenberg & Silver, attorneys).

      Mr. Saul A. Wolfe for defendants (Messrs. Skoloff & Wolfe, attorneys).
   Ackerman, Harold A., J. S. C.

This action is a products liability case. On May 27, 1970 plaintiff Carol D’ArieDZO applied a product known as Miss Clairol Shampoo Formula Hair Coloring Ho. 44S Coppertone to her hair and scalp. As a result, she suffered damage to her hair and injuries to her scalp and face. Because of the alleged negligence and breach of express and implied warranties on the part of the defendants, plaintiffs seek damages. The matter is before tire court on a motion for summary judgment in which defendants Clairol, Inc. and James Wholesale Drug Co., Inc. seek judgment in their favor based upon the alleged contributory negligence of plaintiff Carol D’Arienzo.

The allegation of contributory negligence is bottomed on plaintiff’s failure to perform tire preliminary patch test as set forth in the directions for use of the product. The directions require that the test be performed before each application of the product. The gravamen of this charge is that but for this failure to perform the test no injuries would have been sustained since, had she performed the test, she would have discovered her sensitivity to the product and refrained from using it. The proofs reveal that plaintiff had first used Miss Clairol some two years prior to the subject incident and that use continued intermittently during the intervening period. Tumwdiaiely prior to using the product the first time, she performed the patch test and the reaction was negative. She suffered no adverse effects from the product during the entire period of use until the time of the subject incident.

The instant case presents a novel question of whether the defense of contributory negligence may he asserted to summarily preclude the prosecution of a suit involving an allergic consumer who relied on her personal history with a product in failing to perform a preliminary patch test. Inextricably intertwined with this question is that of whether the directions for idle use of this product were of such a nature as to legally foreclose such reliance. Though the questions are novel and intriguing, determination of the issues must be made within the narrow framework in which they are here presented; that is, whether plaintiff’s conduct so deviated from that of the ordinary prudent person that reasonable men could not disagree as to her negligence.

Initially, it must be noted that this defense is available in products liability cases under Maiorino v. Weco Products Co., 45 N. J. 570 (1965).

Simply stated, we are oí the view that where a plaintiff acts or fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his hands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover. In short, in our judgment the well known principle of contributory negligence in its broad sense is sufficiently comprehensive to encompass all the variant notions expressed in the cited cases as a basis for refusing plaintiff a recovery when his own lack of reasonable care joined or concurred with the defect in the defendant’s product as a proximate cause of the mishap and his injury. A manufacturen or seller is entitled to expect a normal use of his product. The reach of the doctrine of strict liability in tort in favor of the consumer should not be extended so as to negate that expectation, [at 574]

At the same time, it is clear that this defense is sometimes barred where considerations of policy and justice dictate. Bexiga v. Havir Manufacturing Corp., 60 N. J. 402, 412 (1972); Eltin v. Ava Truck Leasing, Inc., 53 N. J. 463, 473 (1969).

Since defendants seek summary judgment based upon the defense of contributory negligence, we would do well to examine these two notions so as to set forth the conceptual lines which circumscribe this form of relief. On the issue of summary judgment, the landmark case in New Jersey is Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 74 (1954), wherein the court said that “it is the movant’s burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact.” Similarly, our Supreme Court said in Ruvolo v. American Cas. Co., 39 N. J. 490 (1963) :

It is a matter of common knowledge that such judgments are to be granted with extreme caution. The moving papers and the pleadings are to be considered most favorably to the party opposing the motion. All doubts are to be resolved against the movant, [at 499]

The defense of contributory negligence has found a similar footing in our law. Our courts have been loathe to take this question from the jury and declare a plaintiff’s conduct contributorily negligent as a matter of law. Although a plethora of cases have been written covering this topic, perhaps the clearest expression of this judicial reluctance is found in Battaglia v. Norton, 16 N. J. 171 (1954). There the court said:

But contributory negligence is an affirmative defense to be proved; and ordinarily the issue is one for the fact-finding tribunal. Such is the ease where different minds may reasonably come to different conclusions as to the facts or may reasonably disagree as to the inferences derivable from the facts, controverted or uncontroverted. Kaufman v. Pennsylvania Railroad Co., 2 N. J. 318 (1950); Mellon v. Pennsylvania-Reading Seashore Lines, 7 N. J. 415 (1951); Gudnestad v. Seaboard Coal Dock Co., 15 N. J. 210 (1954). Only in the clearest ease of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law for decisive action by the court. Gave is to be taken that the reasonable man be not endowed with attributes which properly belong to a person of exceptional perspicuity a.nd foresight, [at 179; emphasis added]

See also, Hickman v. Dutch Treat Restaurant, Inc., 3 N. J. 460, 465 (1950). On the closely related question of proximate cause, see Martin v. Bengue, Inc., 25 N. J. 359, 374 (1957), wherein ihe court held that questions of proximate and intervening cause are ordinarily jury questions.

It is manifest, then, that courts should exercise great caution and xeludance before terminating a plaintiff’s canse at this early juncture. Yet, this legal approach should not automatically lead to the denial of summary judgment when contributory negligence is alleged. We must therefore analyze the instant case while paying due deference to the law already set forth herein.

Plaintiff’s assertion that the directions did not lead her to understand that a patch test was required before each and every application compels us to consider whether the directions were adequate in light of all of the surrounding circumstances. The question has been posed in a leading treatise:

Directions are required to assure effective use, warning- to assure safe use. It is clear from the belter-reasoned cases that directions for use, which merely tell how to use the product, and which do not say anything about the danger of foreseeable misuse, do not necessarily satisfy the duty to warn. * s-’ *
The issue is whether the totality of directions or cautionary language constituted an adequate warning in the light of the foreseeable use and user of the product. [Frumer and Friedman, Products Liability, § 8.05[1] at 186-186.6 (1973)]

It is undisputed that the label was in compliance with the applicable federal statute, 21 U. S. C. A. § 361 (a). However, this statute establishes only minimum standards and is not meant to trench upon or consume the developing common law of products liability. Hubbard-Hall Chemical Co. v. Silverman, 340 F. 2d 402, 405 (1 Cir. 1965); Arata v. Tonegato, 152 Cal. App. 2d 837, 314 P. 2d 130, 134 (D. Ct. App. 1957); Rumsey v. Freeway Manor Minimax, 423 S. W. 2d 387, 394 (Tex. Civ. App. 1968).

In the literature accompanying the product, reference to the patch test appears in two places. It appears under the bold print at the top of the page aside step number one, and it appears under the heading “BEFORE YOU COLOR —MAKE THESE TWO EASY TESTS.” It is clear that these instructions direct the user to perform the patch test before each application. However, the question is not solely one of whether this directive is present, but rather whether the totality of-the directions place the user on notice of the necessity and importance of the test and the possible consequences of nonperformance. As a leading case has indicated,

* * * a mere indication of danger, in and of itself, does not accomplish an inevitable tergiversation of liability. If warning of the danger is given and this warning is of a character reasonably calculated to bring home to the reasonably prudent person the nature and extent of the danger, it is sufficient to shift the risk of harm from the manufacturer to the user. To be of such character the warning must embody two characteristics: first, it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; secondly, the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. [Spruill v. Boyle-Midway, Incorporated, 308 F. 2d 79, 85 (4 Cir. 1962)]

The court in the above matter went on to consider both the environment in which the product was used and the linguistic sufficiency of the warning, in order to determine the negligence of plaintiff. The court concluded that the question of the warning’s sufficiency was properly left for the jury, and that an insufficient warning was tantamount to no warning at all.

In Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A. 2d 850, 160 A. L. R. 449 (1945), the Supreme Court of Pennsylvania dealt with a situation in which a woman died from the inhalation of fumes given off by the carbon tetrachloride contained in a product designated as “Atlantic Safety Olean.” The can containing the product displayed the word “caution” and warned against using the product in places which were not well ventilated. However, the court felt that-the conspicuous display of the words “Safety Clean” on all four sides of the can diluted the effect of the admonition. Again, it considered the conditions under which the product would he foreseeahly used :

In fact, it is understandable that a woman busily engaged in the task of cleaning rugs might not take time to read everything on the can, particularly since the word “Safety” was so prominently featured as to exclude from her mind that “provident fear” which has been characterized as “the mother of safety.” This court has laid down the rule that any one who is responsible for the existence of any dangerous instrumentality or substance with which persons are likely to come in contact must “impose a measure of control that is adequate to the protection of human beings” from it. [at 852]

The emerging principle from these authorities is that the duty to warn is not discharged by the mere presence of directions for use on the product, no matter how clear their meaning. The question is not properly one of clarity but of intensity sufficiently adequate to illuminate the mind of the reasonable user. The Supreme Court of Florida took this position when it stated: “Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safely the caution commensurate with the potential danger.” Tampa Drug Company v. Wait, 103 So. 2d 603, 609, 75 A. L. R. 2d 765 (1958) (emphasis added). Again, the court held that the question of contributory negligence was properly left for the jury. See also, Williams v. Caterpillar Tractor Co., 149 So. 2d 898 (Fla. D. Ct. App. 1963), in which the court reached the same conclusion in a summary judgment setting. Additionally, see Muncy v. Magnolia Chemical Co., 437 S. W. 2d 15, 19 (Tex. Civ. App. 1968), where the nonreading of the label by plaintiff was deemed to be inconsequential when the warning was insufficient.

In Arata v. Tonegato, supra, plaintiff, having been advised by her beautician of the necessity of a patch test to determine her sensitivity or allergy to Miss Clairol, nevertheless told defendant beautician to go ahead without performing the test. Her medical history revealed allergic propensities and she suffered extensive injuries. The trial court submitted the question of the adequacy of the warnings to the jury, who ultimately found for the defendants. And similarly, in Anderson v. Klix Chemical Co., 256 Or. 199, 472 P. 2d 806, 810 (1970), the Supreme Court of Oregon concluded that questions such as the reasonableness of a warning are usually best left to a jury, despite the rather explicit and intensive warnings in that case.

Aside from Maiorino, supra, the only case relied upon by defendants in this motion is Shaw v. Calgon, Inc., 35 N. J. Super. 319 (App. Div. 1955). There, plaintiff reached blindly for a box of Calgon, but mistakenly picked up a box of Calgonite and proceeded to pour an unspecified amount into a pail of hot water. She sustained injuries after the solution came in contact with her forearms. Three things should be noted. First, plaintiff completely failed to read the directions and warnings. Second, the warnings said “[a]void contact of the hands with Calgonite solutions.” It is readily apparent that the defendant did not contribute to the plaintiff’s injuries. Finally, it is significant that plaintiff attempted to proceed by use of the principle of res ipsa loquitur. Thus, Shaw is patently inapposite and sheds no light on the instant case.

It is clear that the failure of a plaintiff to follow an adequate warning will ordinarily immunize the defendant from liability. Restatement, Torts 2d, § 402A, comment (i) at 352 (1966); Procter & Gamble Manufacturing Co. v. Langley, 422 S. W. 2d 773, 780 (Tex. Civ. App. 1967). That is, a consumer may not disregard or ignore plainly unambiguous instructions and then seek to hold manufacturers answerable for injuries sustained. However, while this only recites the obvious, that contributory negligence is available in a products liability case, it fails to disclose what constitutes contributory negligence in a particular factual complex.

The instructions for the use of the product involved herein were both directive and explanatory. Undeniably, they stated that the patch test must be performed before each application. This was their directive linguistic function. Additionally however, they explained the reason for this test. They indicated that “certain individuals” may be allergic or hypersensitive to the product, though it was “harmless to the multitude.” Twice thereafter sensitive individuals were referred to under the rubric of “relatively few persons.” This explains the requirement of the patch test and is inseparable from the directive' passages.

We note the fact that, save for the use of the terms “allergic,” “hypersensitive” and “unfavorable effect or result,” no additional warning is given of any possible adverse consequences resulting from the use of the product. It is only in the course of the instructions for the performance of the patch tes i itself that the consumer is told, “* * * if any reddening of the skin, burning, itching, swelling, irritation, eruption or any other abnormal reaction is experienced in or around the test area, then the person is predisposed to the preparation and must not use it.” Clearly, if the consumer was unconvinced of the necessity for the test, he might well not continue reading into the instructions themselves. Although we do not intimate any view as to whether the passage quoted above constitutes sufficient warning, its location in the directions could well preclude its being read. By then it could simply be too late.

Much of the decisional and scholarly discussion of warnings on consumer products focuses on the ambience in which a product is to be used. This is because language and presentation which may be functionally effective in one setting, may prove ineffective in another. In a different setting Judge Learned Hand observed that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary * * Cabell v. Markham, 148 F. 2d 737, 739 (2 Cir. 1945). Thus, we are not, nor should we be, compelled to decide this matter based upon the mere existence of a particular directive in the instructions. In discussing this subject the leading article concluded :

These decisions demonstrate that the central issue in cases inxmlving a failure to warn is not whether the user did or did not follow the directions for use, but rather, whether the manufacturer in labeling his product gave notice of all the dangers inherent in its foreseeable use, and if he did not, whether his failure to do so was the proximate cause of the injury. Such notice may be given in separate cautionary statements, or may be included in carefully worded directions. A clear, concise warning of potential danger, however, is required.
* * * :¡:
“Whether or not a given warning is adequate depends upon the language used and the impression that it is calculated to make upon the mind of an average user of the product. Questions of display, syntax and emphasis are involved in evaluating a warning, or set of directions . . .”
On questions such as these, a jury is best qualified to speak. [Dillord and Hart, “Product Liabilty: Directions for Use and the Duty to Warn,” 41 Va. L. Rev. 145, 168-169 (1955) (footnote omitted) ]

See also, Noel, “Products Defective Because of Inadequate Directions or Warnings,” 23 S. W. L. J. 256 (1969).

It must be stressed that we do not suggest to escbew logic in dealing with the problems at hand. It might be that logic reveals no inconsistency or ambiguity in the directions. Rather, we recognize that the function of language is not only to express ideas accurately, but to communicate them effectively. The touchstone must he the impression created by the directions or warnings on the average reasonable consumer.

A hair coloring product falls within that category of products which consumers perforce use repeatedly. Jn the present case plaintiff had used the product for two years and had, in fact, performed the patch test upon initially using it. Additionally, it is not the sort of product which one uses in the serene setting of the study wherein the directions can be scrutinized with unerring logic and attention. All of this is easily foreseeable from the vantage point of the manufacturers. Furthermore, the only dangers to which consumers were alerted were those broadly referred to as allergic or hypersensitive reactions. In the pertinent passages of the directions the possible reactions were described with no particularity of detail. Most significantly, it is the nature of an allergy that it is not always evident on first exposure or for several subsequent exposures (and thus the directive that the test be performed before each application). Plaintiff might have reasonably seen an inconsistency between her successful experience with the product and the requirement for continual patch tests. This fact is especially so in light of the disarming tone of the passage which explains the reason for the test, and the elusive nature of allergies.

The potential for allergy is acquired by a previous exposure to the offending substance. The first exposure, or exposures, sensitize the person so that upon a later exposure he will react adversely to the presence of the substance. During these “sensitizing” exposures, a particle of the substance called an “antigen” is introduced into the blood stream and is met by antibodies produced by the host in response to that foreign particle. In the normal situation, the antibodies would repel the antigen, since it is a harmless particle, and there would be no further consequences. In the case of allergy, however, the antigen is able to sensitize the antibody to the properties of the antigen. Upon re-exposure, the antibodies will resist the antigens to which they are sensitive and combine with them, liberating ■“histamine and other noxious chemicals that produce the symptoms of allergic disease.” [Schattman, “A Cause of Action for the Allergic Consumer,” 8 Houston L. Rev. 827, 860 (1971) (footnotes omitted) ]

Though the nature of the allergic response may be unknown to the average consumer, this is hardly esoteric knowledge within the community that manufactures these products. Indeed, in the very affidavit submitted in this matter by Dr. John T. McCarthy, medical director for Clairol, Inc. he states that:

The patch test is required prior to every application, because a user may develop a sensitivity to a particular chemical at the time of any particular use, and the patch test previews such sensitivity as may be related to repeated uses of the sensitizing agent, [emphasis added]

■Surely, the meaning and purpose of the directions would be clarified by the insertion of a statement indicating that the reason for the continual tests is that allergies are, by their very nature, acquired, and that past success does not necessarily portend future success. And the import of such a statement would be strengthened by a timely warning which described in detail the possible adverse reactions to the product. Any asserted burden which would be placed upon the defendant would be far outweighed by the salutory function served by such a warning. Can it seriously be maintained that to “tell it like it is” involves the imposition of a burden upon manufacturers?

In the abstract, the directions may not suffer from any fatal ambiguities or infirmities. However, when considered in the practical realm of day-to-day affairs, that may not be the case. At least, for present purposes, that thesis is not so clearly untenable so as to be ignored and shunted aside summarily. Such matters are wisely left for jury determinations.

Eor the reasons expressed in the foregoing authorities, and in view of the practical setting of this ease, we deem it extremely improvident to declare plaintiff contributorily negligent as a matter of law. However, we wish io make it abundantly clear that nothing said herein would foreclose the defendants from availing themselves of this defense at trial. We merely feel that in light of the factual uncertainties involved in this case, it would be unwarranted to terminate plaintiffs’ cause at this early stage of the proceedings.

Summary judgment is accordingly denied.