author: Huot, J. D. C.

text:
    BROOKCHESTER INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. MARIE MATTHEWS, DEFENDANT.
    District Court, Bergen County-
    Decided March 22, 1972.

      Mr. Eugene L. Einallo, attorney for plaintiff.

      Ms. Marie Matthews, pro se.

   Huot, J. D. C.

This is a landlord-tenant action to dispossess on the grounds of nonpayment of rent. Defendant contends that the landlord has violated the recently promulgated wage price guidelines and that by reason thereof the rent reserved in her lease is a nullity; that the rent is not owing and that this action should be dismissed.

The issues raised are:

1. Has jurisdiction to determine compliance or noncompliance with Price Commission regulations been preempted by the United States Government to a United States agency or court or docs this court have jurisdiction, in a summary dispossess action for nonpayment of rent, to review the landlord’s acts and determine compliance or noncompliance with the Price Commission regulations?

2. If this court has jurisdiction, do the regulations of November 12 or December 16, 1971 control?

3. If this court has such jurisdiction, has the landlord complied with the federal regulation ?

I

The United States Congress-adopted the Economic Stabilization Act of 1970 and the President approved the same on August 15, 1970. P.L. 91-379. It authorized the President:

To issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages and salaries at levels not less than those prevailing on May 25, 1970.

It further permitted the President to:

Delegate the performance of any function * * * to such officers, departments, and agencies of the United States as he may deem appropriate.

The authority therein granted was to expire on February 28, 1971.

On December 17, 1970 that authority was extended to March 31, 1971 (P.L. 91-558), and on March 30, 1971 extended to May 31, 1971 (P.L. 92-8). It was again extended by the Congress on May 18, 1971, so that the new expiration date is April 30, 1972, P.L. 92-15.

Pursuant to this statutory authority the President issued Executive Order No. 11615 on August 17, 1971 to stabilize prices, rents, wages and salaries for a period of 90 days and established a Cost of Living Council.

On October 15, 1971 the President issued, pursuant to such statute, Executive Order No. 11627, which established a Pay Board and Price Commission to “take such steps as may be necessary, and authorized by or pursuant to this Order, to stabilize prices, rents, wages and salaries.” It continued the Cost of Living Council and set forth its duties and powers. Among these powers was:

Section 4(b). The Council may redelegate to any agency, instrumentality, or official of the United States any authority under this Order, and may, in administering this Order, utilize the services of any other agency, Federal or State, as may be available and appropriate.

Thereafter, the Price Commission promulgated Eules and regulations. On November 12, 1971, the Price Commission adopted Chapter III, Part 300, “Price and Eent Stabilization Eegulations,” which became effective November 14, 1971. Section 300.001, “Summary,” reads:

The rules contained in this subpart relate to increases in prices and rents which are allowable after November 13, 1971, with respect to:
* w ❖ * * *
(e) Sales and leases of real property.

The several sections which establish the base price and formula for rentals will be discussed below. It will be seen, however, that the lease here in question is governed by these rules with respect to the amount of rent that plaintiff may charge.

In the present matter the tenant claims a violation of those regulations by the landlord, and our present inquiry is what jurisdiction shall make such determination.

A review of the rules and regulations leads the court to conclude that it may entertain the defense of lack of compliance with the regulations governing rent charges. Sections 300.613, 300.614 and 300.615 provide:

Section 300.613 Rulings.
(a) In general. In the interest of sound administration of the Economic Stabilization Act of 1970, as amended, and this part 300, the Internal Revenue Service will answer inquiries of persons regarding their status for price and rent stabilization purposes and as to the applicability of this Part 300 to their proposed acts or transactions.
(b) Price stabilization ruling. A ‘Price Stabilization Ruling’ is an official interpretation of the law by the Internal Revenue Service which has been published in the Price Stabilization Bulletin. Price Stabilization Rulings are published for the information and guidance of the Price Commission, Internal Revenue Service Officials and others concerned.
(c) Ruling guidelines. (1) Rulings will be issued only with respect to prospective transactions.
(2) Rulings will not be issued on alternative plans of proposed transactions or on hypothetical situations.
(3) A ruling will not be issued if the national office of the Internal Revenue Service knows or has reason to believe that the same or identical issue in connection with a possible violation of this part by the person who is the subject of the ruling request is before any field office of the Service or any other agency charged with enforcement of this part.
(4) Further, a ruling will not be issued with respect to a matter upon which a recent court decision adverse to the Government has been handed down until the Government has decided whether to follow the decision or litigate further.
(d) Instructions. Any person requesting a ruling should direct such reqxiest, in writing to the District Director of Internal Revenue for the district in which such person has his residence or principal place of business. Each request for a ruling must include—
(1) A complete statement of all such information as is relevant to the status of the person and proposed transaction under this Part 300.
(2) Copies of all relevant documents affecting such status or transaction, and
(3) A statement, executed under penalty of perjury, that such statements and documents, to the knowledge of the person making the request, are true and accurate. Only one ruling request may be made with respect to a particular transaction, and no ruling request may be made with respect to an issue described in paragraph (c) (3) of this section.
(e) Determination letters. In the discretion of the Internal Revenue Service the request of the person may be answered with a determination letter directed solely to the attention of the person in cases in which the Service deems the question not of sufficient importance to the Price Commission, the Internal Revenue Service, or the public in general to warrant the issuance of a ruling.
Section 300.614 Adverse determinations and appeal.
If a person receives an adverse determination letter (as described in paragraph (e) of § 300.613) he may, within 10 days, file a written request for a conference with the district director who issued such adverse determination letter. If the district director fails to reverse his initial determination following such conference, the person affected may, within 10 days after notice of such final determination, file written application for an appeal, together with a brief outlining the basis for such appeal, with the Price Commission. A copy of the application for appeal and the brief shall, at the same time, be directed to the Internal Revenue Service, Attention: Assistant Chief Counsel (Stabilization), Washington, D.C. 20224.
Section 300.615. Failure to obtain relief.
If a person is denied relief by the Price Commission, either because of an adverse determination or because of the Price Commission’s refusal to grant an appeal, such person may, within 30 days, file an action for relief in the appropriate TI. S. District Court.

The court does not find the language above quoted or any language in the Economic Stabilization Act or the Executive Orders of the President which indicate an intent to retain exclusive jurisdiction of the applicability of the regulations in any United States administrative agency or United States court. Nor does the court find an intent to limit inquiry of compliance with the act to those persons familiar enough with the Price Commission rules and regulations to know to ask for a ruling before a rent increase is established. § 300.614 (d)(D.

The realities of landlord-tenant relations dictate against such restrictive conclusion. Earely will a tenant be aware of a proposed increase of rent in a new lease until that new lease is presented. A failure to execute the new lease will leave the tenant subject to being dispossessed as a holdover tenant. Yet an inquiry to the Internal Eevenue Service pursuant to § 300.613 may not result in a ruling before the old lease expires.

Section 300.616 urges the citizens to report violators to the Internal Eevenue Service, and § 300.651 provides penalties that may be assessed against such violators. But these are of little solace to a tenant who has already been dispossessed from his home on the ground that he is a holdover tenant because he has failed to pay a rent which was later to be determined an illegal amount.

This court concludes that the defense of failure to comply with, or breach of, the rules and regulations promulgated by the Price Commission may be entertained in a summary dispossess proceeding.

The court further concludes that it should entertain such defense. The jurisdiction of this court to dispossess a tenant after default in rent “encompasses the question of whether the amount of rent alleged to be in default, is due, unpaid and owing, not only whether it is due and unpaid.” Marini v. Ireland, 56 N. J. 130, 139 (1970). Obviously, a rent which is in excess of and violates the Economic Stabilization Act cannot be legally owing.

Since the court has determined it has jurisdiction to entertain the defense that the rent is not in compliance with the rent allowed under the Price Commission rules and regulations, it turns now to the specific facts of this case.

The tenant, Marie Matthews, has been a tenant of plaintiff Brookchester for several years. Her prior lease expired December 31, 1971, and in contemplation of that expiration plaintiff and defendant executed a lease dated December 16, 1971 for a term of one year at a rental of $145 a month. However, plaintiff and defendant by letter supplemented said lease by agreeing that the rent would be $135 pursuant to the Price Commission guidelines and would increase to $145 if those regulations were modified during the term of the lease to permit that rent. Plaintiff failed to pay the rent due January 1, 1972, and this action was instituted on January 24, 1972. The matter came on for trial on February 7, 1972, at which time the defense of failure to comply with the Price Commission regulations was raised. The matter was then adjourned to March 10, 1972 to give defendant an opportunity to obtain counsel and for the submission of briefs, particularly on the question of the court’s jurisdiction. Defendant chose not to obtain counsel and neither side filed briefs.

On March 10, 1972 plaintiff introduced testimony concerning its compliance with the regulations as it understood them, and entered into evidence 119 leases. These leases cover one-bedroom apartments, the same or substantially similar to defendant’s apartment. Plaintiff has 936 one-bedroom apartments in the complex of approximately 4,000 units. The 119 leases represent 12.7% of the 936 one-bedroom apartments controlled by plaintiff-landlord.

The lease is dated December 16, 1971. On that date the Price Commission filed new regulations in the Federal Register at 11:25 a.m. Among them was § 300.15(d), which now requires a landlord to notify the tenant of a proposed increase and “factual justification for the difference between the rent charged during the freeze base period” and the new rent. This notification was not required under the regulation of November 12, 1971. The failure to provide this notification is one of defendant’s claims herein.

The lease and the regulations bear the same date. There is no evidence to indicate what hour of the day the lease was executed. But, without a discussion of the constitutional issue of infringement of contracts that might be raised, the court concludes that the “immediate effect” of such regulations must give way to a common sense requirement that such rules and regulations be promulgated to those affected thereby before they can have effect. Normally the regulations take effect after a 30-day period. Here the waiting period was waived and they were to take effect immediately. However, this court cannot permit an interpretation that they were binding instantaneously on a landlord hundreds of miles from the publication area. As a matter of reason and justice, it must be held that the regulations filed December 16, 1971 do not govern the lease between plaintiff and defendant which was dated the same day. It would be unreasonable to expect the landlord to comply with the regulations that were first adopted in Washington, D.C. three days before but not published in the Federal Register until the lease signing date. Therefore, this court concludes that plaintiff, on the facts of this case, was not required to give such notice, and defendant’s complaint of failure to give such notice is not valid.

There remains the question of whether plaintiff complied with the Price Commission rules and regulations of November 13, 1973. Section 300.507(b) provides:

Leases of real property — (1) In general. The base price for a lease of an interest in real property is the highest price charged by the person with respect to the same or substantially identical rental units in a substantial number of transactions during the fi’eeze base period. A provision in a lease of an interest in real property executed prior to August 15, 1971, which provides for an increased rental to take effect August 14, 1971, may take effect after November 13. 1971, to the extent such increased rental does not exceed the base price for the rcnfal of such real property.
Sections 300.513(b) and (e) provide:
Transaction. A ‘transaction’ shall be deemed to occur at the time and place a binding contract is entered into between the parties to the transaction. A ‘transaction’ shall mean an arms-length transaction, and shall include only transactions between unrelated persons which are not members of a controlled group.
(e) Freeze base period. The term ‘freeze base period’ means either — ■
(1) The period beginning July 16, 1971, and ending August 14, 1971, or
(2) If a person had no transaction during the period specified in subparagraph (1) of this paragraph, the nearest preceding 30-day period in which he had a transaction.

The freeze base period for plaintiff is the period beginning July 16 and ending August 14, 1971, because it did have transactions during this period of time. The following 11 leases were executed by plaintiff with other tenants, all of which govern the same or substantially similar apartments.

This, however, is not sufficient to dispose of the matter. Section 300.507(b) requires evidence that these 11 leases, executed during the freeze base period (July 16, 1971 — August 14, 1971), were a “substantial number of tranactions during the freeze base period.” The Court cannot determine that on the basis of the evidence presented.

There are 936 units substantially similar to defendant’s apartment, of which 119 were introduced into evidence. Of these 119 only 11 were entered into during the freeze base period. The remaining 108 were executed prior to that time. However, we do not know the dates of the 817 leases not introduced into evidence. Because of this we cannot determine if the 11 leases of the freeze base period constituted a “substantial number of transactions during the freeze base period.”

Because of the confusion which has generally resulted from the promulgation of the President’s Executive Orders and the rules and regulations of the Price Commission, the court concludes that it would be unfair to dismiss the complaint on the grounds of insufficient proof. It will, therefore, set Friday, April 14, 1972, at 1:30 p.m., as the time for plaintiif to have the opportunity to present such additional evidence as it may have concerning transactions conducted during the freeze base period. In the interim, defendant shall deposit the rent required by the lease with the clerk of the court.


source: Caselaw Access Project

author: Meredith, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARTIN SCHMIEDE, DEFENDANT-APPELLANT.
    Somerset County Court
    Decided March 29, 1972.

      Mr. David Linett, Assistant Prosecutor, for the State of New Jersey (Mr. Michael B. Imbriani, Prosecutor of Somerset County, attorneys).

      Mr. Thomas B. O’ Gorman, for defendant (Messrs. O’Gorman and McMann, attorneys).
   Meredith, J. C. C.

This is an appeal by way of trial de novo- of a conviction of defendant Martin Schmiede for violation of N. J. 8. A. 39 :A-98 in the Bedminster Township Municipal Court. He was charged by a state trooper with driving at an average speed of 72 miles an hour on Interstate Highway 78 in Bedminster Township, a 60-mile an hour zone, on September 10, 1971 at about 3 p.sr. A state trooper testified that he had clocked defendant over a 4.8-mile course at an average speed of 72.7 miles an hour by the use of an electronic device known as Yascar.

The questions presented are whether the Yascar unit is a scientifically accurate instrument; whether the state trooper as an operator of that unit was adequately trained in its use, and whether the use of the device by the state trooper on this particular occasion was proper.

The State presented the testimony of the program manager for Vascar, which is manufactured by the Federal Sign and Signal Corporation. Defendant presented no expert witness. The court determined that the witness was qualified to testify with respect to the scientific basis for the operation of the Vascar unit. The expert testified that Vascar is a special purpose electronic digital computer set to accept increments of distance and time, computing the average speed to the nearest tenth of a mile an hour. Its principle is based upon the accepted formula that speed equals distance divided by time. It consists of three modules: the odometer module, which works directly into the transmission and is turned on by the speedometer cable activator; the control module, which is the control center operation for the Vascar operator, and a computer module, which is placed on the inside of the vehicle. Its power is obtained from the car battery.

The control module contains two switches, one for measuring distance and one for measuring time. The odometer module is geared to measure 6,000 pulses a mile, or one pulse for every 10.56 inches of roadway travel. When the distance is measured in this manner the distance can be locked into the device to await the time interval. The time interval is measured by switching the time switch on and off, and the time is computed by an oscillator which has a fixed rate of 170.7 cycles a second. Once the distance and time factor are fed into the computer module, an automatic reading to the tenth of a mile is flashed on the control module which will signify the average speed of the vehicle clocked over the distance traversed. The maximum distance that the unit will store is approximately 5)4 miles and the maximum time is 6)4 minutes.

The unit has an adjustment of the time factor by way of a screw on the control module which is used to calibrate the instrument. The calibration is done by clocking in a fixed distance and a fixed time. Other than a changing of tires which would affect the reading, the calibration would not change more than 2/10ths of a mile an hour in a six-month period. Changing of tires requires calibration.

The Yascar device is used by determining two fixed points and measuring the time and distance between these points to ascertain the average rate of speed. The input may be either the clocking of the time first or the measuring of the distance first. In order to obtain an accurate setting of the unit on the target points, usually the shadow from a bridge or overpass is used to overcome problems of depth perception. The expert testified that in the event there was a ten-foot error on the reference point at a car traveling 70 miles an hour for a clock of one mile, the error in the resulting reading would be only .133 miles an hour. In the event of a 100-foot error on the reference point at a car traveling 70 miles an hour for a clock of one mile, the error in the resulting reading would be 1.326 miles an hour. The greater the distance used in the clocking of the speeding vehicle, the greater the accuracy obtained.

The instrument has a built in warning device. In the event that the instrument is not properly warmed np or there is insufficient power from the battery source or any other malfunction, the reading obtained will he 00.1 Thus, the operator is alerted to any possible malfunction of the instrument.

For the training for the operation of the Yascar unit it is recommended by the manufacturer that a half-day of classroom work bo given to the trainee involving the theory and operation of the Yascar unit, and that the trainee then be given a month to practice in Hie use of the unit, at the end of which time a test of 30 clockings under different situations is administered. In that test the trainee, in order to be qualified, must not have a single error greater than two miles an hour and must have an average error of no more than .75 miles an hour. Of the 6,000 certified tests throughout the United States approximately one year ago, the national average was found to be .416 miles an hour error.

The Vascar device had its first use by the State Police of the State of Indiana in 1966. As of the present date, there are 6,500 units in use throughout the United States. The Court has found no reported eases in the State of New Jersey and only one reported case elsewhere determining the scientific validity of the Vascar device. In People of State of New York v. Persons, 60 Misc. 3d 803, 303 N. Y. S. 3d 738 (Court of Special Sessions, 1969), decided by a County Court Judge of that State, the Court after hearing the scientific testimony, upheld the scientific accuracy of the Vascar device and upheld the conviction based thereon. In an unreported decision in the State of New Jersey v. Salvatore Profaci, decided by Judge John E. Bachman of the Middlesex County District Court, Judge Bachman, without any evidence regarding the scientific accuracy of Vascar and with testimony of inadequate training of the Vascar operator, reversed the conviction in municipal court. Based on the testimony of the State’s expert, this Court is of the opinion that the Vascar device is essentially a simple computer type calculator which scientifically measures speed through the measurement of time and distance based upon the formula of speed equals distance divided by time. Its accuracy is qualified only by its proper calibration, the proper training of an operator and the proper operation in the particular case.

This, then, leads to the second question of whether the trooper involved in the instant case received the proper training. The trooper testified that he was given a full day’s training by another trooper who had previously been qualified as an operator and instructor on Vascar, and that this was followed by a one-month use of Vascar by the trooper on many occasions. At the end of the one-month period, the qualified trooper administered a series of 30 tests to the training trooper. These tests involved five separate clockings each of meeting a target vehicle, of approaching the target vehicle from the rear, of following a target vehicle, on a parked, premeasured distance, on a T-intersection with no premeasured distance, and during the night hours. Of these tests, 7/10ths of a mile was the greatest deviation and the average deviation was .229 miles an hour — well below the national average and well below the standard of deviation of not in excess of .75 miles an hour. Having passed the test, the state trooper was certified as an operator of Yascar. In addition, the complaining trooper used the Yascar unit continuously on routine patrol for nine months prior to the instance with this particular motorist on September 10, 1971. Furthermore, the court went out on the road with the trooper where he demonstrated Yascar’s use and calibration and demonstrated his complete familiarity with the unit.

Therefore, the court finds that the complaining trooper in this ease was fully qualified in the use and operation of the Yascar device.

The final question presented is whether the complaining state trooper properly operated the Yascar unit on the clay in question. He testified that on the morning of that day he calibrated the Yascar unit by running the car over a premeasured half-mile measured by the State Bureau of Weights and Measures on Interstate Highway 287. Once this distance had been put into the Yascar unit, from a stop watch previously checked by radio time, he clocked 30 seconds into the time bank in the Vascar unit and obtained a reading of 60.0 miles an hour. lie then erased the time factor and put in 20 seconds which, when computed together with the half-mile, gave a reading of 90 miles an hour. Both tests indicated that the Yascar unit was properly calibrated.

lie testified that at 3 r.ii. on that date he was parked alongside of Interstate Highway 78 when he noticed defendant’s ear proceeding in a fast manner. When that car hit the shadow of an overpass which was in his view, he set the time switch in motion. He then proceeded to the same overpass and as he passed the shadow put in motion the distance switch. Although he lost sight of the car during some of the period, the trooper caught up with him and as it passed the shadow of another overpass he turned off the time switch, and as he went under the shadow of the same overpass he also turned off the distance switch. As a result thereof, he received a reading of 72.7 miles an hour. The trooper testified that the distance between the first overpass and the final overpass was 4.8 miles.

Although there was some question raised with respect to whether the state trooper had the proper identification of the car, this court is fully satisfied that the trooper clocked the same ear.

Therefore, the court is of the opinion that the Yascar unit was properly calibrated and thus accurate, and that the complaining state trooper properly operated that unit in determining defendant’s speed.

The court concludes that the State has proved defendant guilty bejrond a reasonable doubt of speeding at 72 miles an hour in a 60-mile an hour zone, and the conviction below is affirmed.


author: Per Curiam.

text:
    ESSEX COUNCIL NUMBER 1, NEW JERSEY CIVIL SERVICE ASSOCIATION, INC., A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS-RESPONDENTS, v. KENNETH A. GIBSON, MAYOR OF THE CITY OF NEWARK, NEW JERSEY, AND CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 27, 1972
    Decided April 4, 1972.

      Before Judges Coneokd, Matthews and Eritz.

      Mr. W. William Modes, Assistant Corporation Counsel, argued the cause for appellants (Mr. William M. Walls, Corporation Counsel and attorney).

      Mr. Martin S. Fox argued the cause for respondents (Messrs. Fox and Fox, attorneys).
   Per Curiam.

The mayor of Newark endeavored by executive order to increase the work hours per week of a number of classified civil service employees to accord with the hours worked by other city employees, without a concomitant salary adjustment. On plaintiffs’ application by complaint in lieu of prerogative writs the trial judge agreed with plaintiffs’ contention that such action constituted a reduction offensive to the provisions of N. J. 8. A. 11:22-38. 114 N. J. Super. 676 (Law Div. 1971). He enjoined enforcement of the order. The essential facts are not in dispute and appear in the opinion below.

Defendants on this appeal suggest a conflict between the civil service statutes and the New Jersey Employer-Employee Eelations Act, N. J. 8. A. 34:13A-1 et seq. We see no such conflict, at least in the circumstances of this case. The latter statutes provide with abundant clarity that “Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations * * *” N. J. 8. A. 34:13A-5.3. Its procedures are available on voluntary invocation by parties affected and are not exclusive of civil service jurisdiction. Moreover, we reject defendants’ contention that the civil service appellate remedy is available only to single individuals and not to groups of employees similarly affected.

We are of the view, however, that despite an inclination to regard an increase in hours as a dilution of compensation to the extent that the employees affected are no longer “receiving the same pay for the job,” as the trial judge held, and to find that such constituted a “reduction” repugnant to N. J. 8. A. 11:22-38 as defined in Scancarella v. Dept, of Civil Service, 24 N. J. Super. 65, 69 (App. Div. 1952), such a determination should not be made in the first instance by a trial court if the expertise of an administrative agency is available.

We recognize that failure to exhaust administrative remedies is neither jurisdictional nor absolute, Durgin v. Brown, 37 N. J. 189, 202 (1962), and that when the issue to be decided is one said to be solely of law, the ordinary rule (B. 4:69-5) is not applicable, Matawan v. Monmouth Cty. Tax Bd., 61 N. J. 291, 296 (1968). Nonetheless, in this matter of first impression in New Jersey, concerning a substantial issue of public concern, we are of the opinion that administrative remedies should be exhausted before a determination of law is reached. To the extent that the judge below rejected the available “agency expertise, policy, discretion or judgment” on a basis of lack of “necessity,” we believe he erred. In arriving at this conclusion we have given controlling consideration to guidelines expressed in Roadway Express, Inc. v. Kingsley, 37 N. J. 136, 141 (1962). Not only can we not say, as there mandated, that “the interests of justice dictate the extraordinary course of bypassing the administrative remedies made available by the Legislature,” but we hold to the view that such a shortcut would here militate against a sound determination, and therefore quite possibly against the interests of justice.

Accordingly, we reverse and remand to the Oivil Service Commission for a prompt hearing. Until a determination there or further order of the Commission on proper application and notice, a temporary restraint against enforcement of the order shall obtain. We do not retain jurisdiction. No costs.


text:
    STATE OF NEW JERSEY BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. ABRAHAM MEHLMAN, ET AL., DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 21, 1972
    Decided April 4, 1972.

      Before Judges Goldmann, Halpern and Lora.

      Messrs. Richard L. Rudin and Bertram P. Goltz, Jr., Deputy Attorneys General, argued the cause for appellant and cross-respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).

      Mr. Richard D. McOmber argued the cause for respondents and cross-appellants (Messrs. Giordano, Giordano <& Halleran, attorneys).
   Per Curiam.

This is a highway condemnation ease wherein the State condemned a triangular-shaped piece of vacant land containing .161 of an acre belonging to defendants. Defendants’ entire property consists of .994 of an acre. It has a frontage on State Highway 70 of 299 feet, a frontage on Forge Pond Road to the east of 150 feet, it is about 262 feet on the rear, and about 185 feet on the west side. Located on the property is a one-story commercial building having 12,000 square feet of space, and operated by defendants as a furniture store.

The triangular parcel condemned commences at the southwest corner of the tract and runs (1) along the westerly boundary line for about 185 feet, (2) along the rear about 80 feet, and (3) about 185 feet to the beginning. The distance between the northwest corner of the existing building and the nearest point of the parcel being condemned is about 50 feet, and the distance between the southwest corner of the building and the nearest point of the parcel being condemned is about 110 feet. The vacant lands in front of the building facing State Highway 70 and Forge Pond Road are unaffected by the taking. Of the original .994 of an acre there remanded to defendants after the taking .833 of an acre.

A brief history of what transpired is necessary for a better understanding of the issues. During 1967 defendants decided to put an attached addition onto their existing building. By November 1967 defendants had hired an engineer to prepare plans for the proposed addition, obtained a building permit and commenced excavation. A portion of the ground excavated is included in the parcel taken by the State. On December 20, 1967 defendants were notified by the State of its contemplated condemnation. As a result defendants discontinued any further building operations, having spent to that point $750 for a building permit, $2,150 for engineering expenses and $625 for the excavation. The condemnation complaint was filed on May 27, 1970. The condemnation commissioners were appointed by the court on October 1, 1970 and alter a hearing awarded defendants $16,000. Defendants appealed and the State cross-appealed from the judgment. After a jury trial a judgment was entered awarding defendants $25,659 plus interest thereon from the date of taking, May 27, 1970. The State appeals from the judgment, and defendants cross-appeal from so much of the judgment as allowed interest from May 27, 1970, contending interest should have been allowed from December 20, 1967, the date they were notified by the State of the contemplated taking.

The principal issue on appeal is whether the trial court erred in permitting defendants’ real estate expert, Byron Kotzas, to express an opinion as to the market value of the taking based upon his hypothetical projections.

We start with the premise that defendants are entitled to just compensation. N. J. Constitution, Art. I, § 20, and N. J. S. A. 20.1-1 et seq. The measure of compensation is the fair market value as of the date of taking. Stale by State Highway Com’r v. Gorga, 26 N. J. 113, 115 (1958). Such value is defined as being a fairly negotiated price agreed upon voluntarily between an owner willing to sell and a buyer willing to purchase, neither being under compulsion. Trenton v. Lenzner, 16 N. J. 465, 476 (1954), cert. den. 348 U. S. 972, 75 S. Ct. 534, 99 L. Ed. 757 (1955). Since this is a partial taking of vacant land, the price for such taking is the difference between the market value of defendants’ entire parcel as a whole, immediately before and unaffected by the taking, and the market value of the remainder not taken, immediately after and as affected by the taking. Putting it another way, it is the value of the parcel taken based upon its best and highest use, plus compensation for any diminution in value resulting to the remainder from the taking. Sterner v. Nixon, 116 N. J. L. 418, 420 (E. & A. 1936). See also State By State Highway Com’r v. Speare, 86 N. J. Super. 565, 572-573 (App. Div. 1965), certif. den. 45 N. J: 589 (1965).

The difficulty arises in determining the appraisal approach to he used in arriving at fair market value. We are satisfied that each partial taking case must be decided on its own merits. We recognize that most often real estate experts use the comparable sales approach. State, by Commissioner of Conservation v. Vacation Land, Inc., 92 N. J. Super. 471, 478-479 (App. Div. 1966). So, too, where the facts warrant it, other approaches are utilized by real estate experts. Stale By Com’r of Transp. v. Probasco, 114 N. J. Super. 546, 551-552 (App. Div. 1970), aff’d 58 N. J. 372 (1971); State By State Highway Com’r v. Burnett, 24 N. J. 280, 289 (1957). The State has asked us to decide what appraisal method should be used in this case. It is not our function to designate what method of appraisal should be used — our function is limited to decide in each ease whether the method used is reasonable under the existing circumstances. As the court stated in Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971)

There is no precise and inflexible rule for the assessment of just compensation. The Constitution does not contain any fixed standard of fairness by which it must be measured. Courts have been careful not to reduce the concept to a formula. The effort has been to find working rules and practical standards that will accomplish substantial justice such as,'but not limited to, market value, [at 384— 385],

In the instant case comparable sales and other approaches were admittedly available but were not used by Eotzas in arriving at fair market value. Instead, he used an income approach by projecting a hypothetical building part of which was to be on the parcel being condemned, which (including the area of the existing building) would contain 31,000 square feet. He estimated the annual rental for the combined structures to be $3.75 a square foot, or a gross annual income of $.116,625. He estimated the expenses on such hypothetical building to be $2.23 a square foot, which would leave a net annual profit of $46,650. He attributed one-third of such profit to the land, without indicating how or why he arrived at that figure, thus producing a net profit for the land of $15,548 which he capitalized at the rate of 9 ¿4%. Based on these calculations he arrived at a value of the property, in its hypothetical form prior to the taking, of $163,663. Eollowing through with his hypothesis and formula he estimated the value of the land after the taking to be $109,105, and the value of the taking to be $54,558. He was unable to say how much of the $54,558 represented the value of the land taken and how much represented damage to the remainder.

The state appraiser, Charles L. Bramhall, used the traditional approach of comparable sales, which he viewed as the fairest method under the circumstances, and arrived at a value for the taking of $12,800. He discarded the income approach as being unfair to defendants.

The effect of Kotzas’ approach in arriving at fair market value was to permit the jury to utilize his opinion, based on pure speculation, in reaching its verdict. To permit the jury to do so, would be placing our stamp of approval upon Kotzas’ projection of a hypothetical building on vacant land, and capitalizing hypothetical income anticipated to be derived therefrom, without considering the multitude of unknown variables in erecting, leasing, operating and financing the project. Such approach is improper. See Port of New York Authority v. Howell, 68 N. J. Super. 559, 566 (App. Div. 1961), cert. den. 36 N. J. 144 (1961). A similar attempt to arrive at fair market value of vacant land by capitalizing income expected to be realized from buildings not yet built or financed was struck down as too speculative, being a serious departure from principle and an unsound approach. Arlen of Nanuet, Inc. v. State of New York, 26 N. Y. 2d 346, 310 N. Y. S. 2d 465, 258 N. E. 2d 890 (Ct. App. 1970).

In charging the jury the trial judge instructed them to consider whether defendants’ 1967 expenses for the building permit, engineering fees and the excavation were to be allowed as a separate element of damage even though defendants offered no proofs that such expenses enhanced the fair market value. In so doing he erred. Such out-of-pocket expenses, on the issue of valuation, could only be considered by the jury to the extent, if any, that they enhanced the fair market value of the taking. Ringwood v. North Jersey District Water Supply Comm’n, 105 N. J. L. 165, 169 (E. & A. 1928).

Defendants, by their cross-appeal, as previously indicated, contend the trial court erred in allowing interest on the award from May 27, 1970 rather than from December 20, 1967. We disagree. The parties tried the case based on a taking valued as of May 27, 1970, and if any interest is allowable it cannot go back of the May 27, 1970 date. Housing Authority of Long Branch v. Valentino, 47 N. J. 265, 268 (1966). Whether interest should be allowed on the award from May 27, 1970 will be determined at the retrial predicated upon the principles enunciated in State v. Nordstrom, 54 N. J. 50, 54-57 (1969), and State By State Highway Com’r v. Seaway, Inc., 46 N. J. 376, 382-387 (1966).

Reversed and remanded for a new trial, on all issues, in accordance with the views expressed herein.


author: Francis, J. S. C.

text:
    ROBERT F. GARRETT, III, PLAINTIFF, v. STATE OF NEW JERSEY, CITY OF OCEAN CITY, NEW JERSEY AND UNKNOWN DEFENDANTS, THEIR HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES AND HIS, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT OF TITLE OR INTEREST, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Argued January 14, 1972
    Decided March 6, 1972.

      Mr. Robert F. Garrett, III, pro se.

      Mr. Morton I. Greenberg, Assistant Attorney General argued the cause for the State (Mr. George F. Xugler, Jr., Attorney General, attorney).
   Francis, J. S. C.

Plaintiff, by way of a bill to quiet title, seeks to perfect his title to certain lands lying in Ocean City, N. J., a portion of which was at one time the bed of Weakfish Creek. Weakfish Creek is a tidal stream which at one time flowed southeastwardly parallel to what is now 59th Street in Ocean City and continuing in that- direction from the bay beyond Asbury Avenue. The West Jersey and Seashore Eailroad Company, deciding to lay tracks across Weakfish Creek running northeastwardly and southwestwardly, obtained a grant from the State of New Jersey dated March 6, 1922. This grant contained two tracts, each five feet long and 60 feet wide at both shore lines, with an accompanying right to fill in between, these tracts a width of 60 feet to accommodate the roadbed of the railroad. This had the effect of suddenly drying up the lands to the southeast of the rail. line. Plaintiff in his bill to quiet title includes as a portion of the premises in his complaint the lands which were below Weakfish Creek prior to the action of the railroad. The records of the State show that it was understood that this would close the creek, an obvious result because tide could not flow through such a project.

I

The riparian grant vested the railroad with a small portion of land on each side of the creek with the accompanying right to fill in the creek within the two areas of the grant although it did not convey them. Nothing either expressly or by implication divested the State of any title to any other portion of the creek. The deed of the State must be construed in its favor. See River Development Corp. v. Liberty Corp., 51 N. J. Super. 447 (App. Div. 1958), aff’d 39 N. J. 339 (1959). That ease held that a legislative grant was to be strictly construed in favor of the sovereign and most strongly against the grantee. It follows a fortiori that a third-party claim under the deed is subject to the same interpretation.

Eurther evidence of a lack of intent to alienate the tidelands is revealed by the recognition of the Appellate Division in River Development Corp. v. Liberty Corp., supra that the State has never alienated its interest in them except as follows: (1) the common law privilege confirmed by the Wharf Act (repealed in 1891) to reclaim to the low water line; (3) legislative license; (3) grant or lease under a special act; (4) conveyance of the fee or a leasehold interest with an option to take the fee as provided by the General Riparian Act of 1869. 51 N. J. Super, at 470. To this list may be added (5) acquiescence in condemnation and (6) consent judgments in settlement of title disputes in quiet title actions.

In view of the fact that a reading of the grant will not support any contention that there was an intentional divestment of title on the easterly side of the railroad bed, the question arises as to whether the closing of the creek under the authority of the State as a matter of law divested the State of its title to the bed of the creek. The answer to this question should be “no.” First of all, of course, there has been no consideration paid the State for anything other than the rights set forth in the riparian grant instrument itself. That instrument recites on its face that the consideration of $200 was for the land described in the complaint and noi otherwise. By L. 1894, c. 71 the riparian land was placed in the School Fund. See River Development Corp. v. Liberty Corp., supra, 51 N. J. Super, at 474-75. This is still the state of the law. N. J. S. A. 18A:56-5 and 6. Under both the Constitution of 1844, Art. IV, § VII, par. 8, and the Constitution of 1947, Art. VIII, § IV, par. 2, the Fund for the Support of Free Public Schools and all money, stock and other property appropriated for that purpose has been declared to be a perpetual fund. Thus, a gift of such property, even for public purposes is, unconstitutional. See In re Camden, 1 N. J. Misc. 623, 639-641 (Sup. Ct. 1923) ; Henderson v. Atlantic City, 64 N. J. Eq. 583 (Ch. 1903). As a result of these ruling public agencies, including the New Jersey Department of Transportation, must obtain grants before taking riparian lands for their projects. N. J. S. A. 12:3-33.

It follows, therefore, that if plaintiff is right in this matter, the officers of the State, in making the grant in question and authorizing the closing of Weakfish Greek, acted unconstitutionally. They received no consideration for the portion of the creek on the east side of the embankment and yet the same was closed and the tidewaters were excluded therefrom. Such administrative action can hardly be countenanced and, of course, the court should construe the legal result of their administrative action so as to avoid an unconstitutional result. But in any event, as a matter of law at common law, before the adoption of the School Fund Act, the action of the riparian commissioners attempting to divest the State of its ownership on the easterly side of the embankment would have been ineffectual, just as in Henderson v. Atlantic Qity, supra, where an easement deed for a $1 consideration was voided. The present constitutional and statutory provisions, cited supra, would work the same effect.

II

At common law the artificial exclusion of water from a tidal stream does not as a matter of law divest the sovereign of its ownership of the bed of the stream. The State’s title to the lands under tidal water is proprietary. Bailey v. Driscoll, 19 N. J. 363, 367 (1955). But title to such lands may be divested by the State where there is a gradual and imperceptible accretion and erosion along tidal streams.

Accretion and reliction are companion theories. “Accretion is the process of gradual and imperceptible addition of solid material, called alluvion, thus extending the shore line out by deposits made by contiguous water,” and reliction is “the gradual withdrawal of the water from the land by the lowering of its surface level from any cause.” Ziemba v. Zeller, 165 Nev. 419, 86 N. W. 2d 190, 193 (Sup. Ct. 1957). Both theories are recognized in New Jersey. Showysz v. Ventnor, 110 N. J. Super. 340, 349 (Law Div. 1969), aff’d 56 N. J. 168 (1970). The term “dereliction” rather than “reliction” is used in this case. The two terms are used interchangeably. See 65 C. J. S. Navigable Waters § 81, at p. 252, and Blade’s Law Dictionary. “Where, by the process of accretion and reliction, the water of a river gradually recedes, changing the channel of the stream and leaving the land dry that was theretofore covered by water, such land belongs to the riparian owner.” Ziemba v. Zeller, supra, 86 N. W. 2d at 193. “The right to acquisitions to land, through accession (accretion) or reliction, is itself one of the riparian rights.” Klais v. Danowski, 373 Mich. 262, 129 N. W. 2d 414, 422 (Sup. Ct. 1964). The doctrines allowing such acquisition of title are founded on the principle of compensation to the riparian owner for his losses occasioned by erosion and inundation, and to preserve the riparian owners’ right of access. See Harz v. Board of Commerce and Navigation, 126 N. J. Eq. 9, 16 (Ch. 1939), aff’d 127 N. J. Eq. 341 (E. & A. 1940), and 65 C. J. 8. Navigable Waters § 82(1), at p. 256. But it is apparent that such acquisition is only permissible where the accretion or reliction was gradual or imperceptible, or both. Neither a theory of compensation nor of the right of access as meant by the cases would appear applicable to plaintiff’s claim.

The gradual processes of accretion and reliction are to be distinguished from the more rapid, easily perceived and sometimes violent shifts of land incident to floods, storms or channel breakthroughs known as “avulsion.” Bauman v. Choctaw-Chickasaw Nations, 333 F. 2d 785, 789 (10 Cir. 1964). Avulsion has been defined as “a sudden and perceptible loss or addition to land by the action of water or otherwise.” Barakis v. American Cyanamid Co., 161 F. Supp. 25, 29 (N. D. Tex. 1958). Avulsion sometimes contemplates the abandonment of an old stream bed and the creation of a new one. 65 C. J. 8. Navigable Waters § 86 at p. 269. The action of the railroad in filling in the right-of-way and the consequent rerouting of Weakfish Creek could be said to be an artificial avulsion. Thus, “the legal effect of an act of the government in changing the main channel or current of a river may be analogous to a change caused by avulsion.” 65 C. J. S., supra, at p. 269. The reasoning would be the same where the railroad under its grant from the State accomplished the same action.

Foreign jurisdictions have dealt with the question of the artificial reclamation of land by drainage operations. In Conoley v. Naetzker, 137 So. 2d 6, 7 (Fla. D. Ct. App. 1962), the court held: “If the disputed parcel was in fact reclaimed land resulting from drainage operations, then defendants as riparian owners on a navigable waterway could not have acquired title through reliction.” (Emphasis supplied). This case cited the Florida case set forth in the State’s brief, Martin v. Busch, 93 Fla. 535, 112 So. 274 (Sup. Ct. 1927) :

If to serve a public purpose, the state, with the consent of the federal authorities, lowers the level of navigable waters so as to make the water recede and uncover lands below the original high water mark, the lands so uncovered below such high water mark, continue to belong to the state. Reliction is the term applied to land that has been covered by water, but which has become uncovered by the imperceptible recession of the water.
The doctrine of reliction is applicable where from natural causes water recedes by imperceptible degrees, and does not apply where land is reclaimed by governmental agencies by drainage operations. [112 So. at 287]

In Baralcis v. American Cyanamid Co., supra, plaintiff was an argicultural lessee of a riparian owner who was a political subdivison of the state, namely a water district. Plaintiff sued American Cyanamid, an upstream owner, for polluting the water. After holding that the lease transferred no riparian rights to plaintiff, the court noted that some of plaintiff’s leasehold was “man-made” through the efforts of the Water District and held that “the land built up artificially by the Water District comes under the doctrine of avulsion.” 161 F. Supp. at 29. The court further held that an avulsion did not change boundary linos, so that plaintiff’s riparian rights ended where the man-made tract began.

In Gottfried v. State, 23 Misc. 2d 733, 201 N. Y. S. 2d 649, 666 (Ct. Claims 1960), mod. 14 A. D. 2d 612, 218 N. Y. S. 2d 286 (1961), aff’d 11 N. Y. 2d 1084, 230 N. Y. S. 2d 229, 184 N. E. 2d 197 (1962), the trial court held, without discussing avulsion: “It is a basic tenet of law that the State owns all land under navigable waters. This applies to the bed of any creek artificially filled in, as this was.”

In Padgett v. Central & Southern Fla. Flood Con. Dist., 178 So. 2d 900 (Fla. D. Ct. App. 1965), the court said:

The doctrine of reliction * * * is applicable to additions created by the recession of waters from natural causes; it does not apply to land reclaimed by drainage operations of governmental agencies Where, as here, the state causes or permits the level of a navigable lake to be lowered so as to make the water recede and thereby uncover lands below the original high-water mark, lands so uncovered continue to belong to the state, [at 904]

In Noyes v. Collins, 92 Iowa 566, 61 N. W. 250 (Sup. Ct. 1894), the Supreme Court of Iowa refused to award the owner of land along a lake the bed thereof when it appeared that the waters had been excluded by draining and filling'. It declared :

The rule is, in order to entitle the adjoining property holders to the right of possession of land left bare by receding water, that the recession must he gradual, slow and imperceptible, m case of a sudden and sensible recession of the water, the ownership of the land will not be changed.

The fact is that the courts have been careful to protect the State from the loss of its title to the tidelands. Thus, in O’Neill v. State Highway Department, 50 N. J. 307 (1967), it was declared:

It is settled that the State’s title in tidelands cannot be lost by adverse possession or proscription. * * * The same considerations bar an estoppel against the State to assert its title because of delay or inaction.

The court has also declared that an in rem foreclosure procedure will not bar the State’s claim to the tidelands even though the statute by its terms could indicate that such a result could be reached. Transcontinental Gas Pipeline v. Department of Conservation & Economic Development, 43 N. J. 135 (1964).

It is true, of course, that the State, in causing the creek to dry up, may have deprived the abutting owners of their ability to reach the water for navigation. However, this cannot affect the result because there is no constitutional right to navigate in front of the property owned by a riparian owner. This matter was settled in Yew Jersey by the Court of Errors and Appeals in the case of Stevens v. Paterson Railroad Co., 34 N. J. L. 532 (E. & A. 1870). That case held that the State could make a grant in front of the owner of upland abutting on a tide-flowed stream without any compensation to the upland owner even though he lost his right and power to reach the stream. The court declared:

From these authorities and many others which might be cited, it appears to me to be. plain, that by the rules of the ancient law, the owner of the land along the shore was entitled to no right as an incident of such township (sic. ownership), except the contingent ones before referred to of alluvion and dereliction; and that, on the other hand, the title to the soils under tidewater was in the sovereign; and that such title was attended with the usual concomitants of the ownership of realty, [at 544]

The Stevens v. Paterson Railroad Co., supra, case is the constitutional bedrock of N. J. S. A. 12:3 — 33 and it is on the authority of that case that large numbers of grants have been made to public agencies cutting off the upland owner from the water.

It should be noted that in Leonard v. State Highway Department, 24 N. J. Super. 376 (Ch. Div. 1953), aff’d 29 N. J. Super. 188 (App. Div. 1954), the State Highway Department took possession of title riparian lands in front of an upland owner and that there was no suggestion in the case even made that if the State in fact has good title to the property, the upland owner would be entitled to compensation by reason of the construction of the road in front of his property. Further, there is no provision for compensation in N. J. S. A. 12:3-33 which deals with grants to other public agencies including the State Department of Transportation. If the State can authorize the Department of Transportation to construct a road in front of upland abutting a tidal stream and thereby fill in the property without vesting title to the new road in the upland owner, it follows the State can also cause the bed of the stream to be dried out without thereby losing its title.

The State’s motion for summary judgment will be allowed.

Order accordingly.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. GEORGE HARRISON AND EDWARD R. MAYS, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.
    A-1411-71
    A-1412-71
    Superior Court of New Jersey Appellate Division
    Argued April 10, 1972
    Decided April 17, 1972.

      Before Judges Collester, Mintz and Lynch.

      Mr. John P. Goceljah, Assistant Prosecutor, argued the cause for appellant and cross-respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).

      Mr. S. Richard Schiffman, Deputy Public Defender, argued the cause for respondent and cross-appellant George Harrison (Mr. Stanley O. Van Ness, Public Defender, attorney) .

      Mr. Herbert S. Alierman, designated counsel, argued the cause for respondent and cross-appellant Edward R. Mays (Mr. Stanley O. Van Ness, Public Defender, attorney).
   Per Curiam.

The State and defendants, pursuant to leave, granted appeal from an order for discovery entered pursuant to R. 3 :13-3 prior to the trial of an indictment for murder.

The order directed the county prosecutor to permit defendants to inspect, copy or photograph all statements and reports of police officers who may be called to testify as witnesses at the trial. However, the court did not grant defendants’ motions to inspect, copy or photograph other police reports relating to the investigation of the case.

We have considered the arguments advanced by both the State and defendants on this appeal and conclude that the order should be affirmed substantially for the reasons expressed in the opinion of Judge Joelson in the Passaic County Court, 118 N. J. Super. 299 (Law Div. 1972). While the opinion did not specifically refer to defendants’ argument that they were entitled to discovery of all police reports because such reports might reveal exculpatory information, the judge ruled during the hearing that the prosecutor has an absolute obligation to reveal such information if it is disclosed during the State’s investigation. We concur in that ruling. See Disciplinary Rule 7-103, R. 1:14; Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and comment to R. 3:13—3, New Jersey Court Rules (1971).

Affirmed.


author: Consodine, J. C. C.

text:
    HELEN CATHLEEN McVEY, PLAINTIFF, v. FRANK McVEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 3, 1972.

      Mr. Bruce B. Sandies for plaintiff (Messrs. Sandies and Frieman, attorneys).

      Mr. William, J. Tamburri for defendant.
   Consodine, J. C. C.

(temporarily assigned) Plaintiff sues for divorce under N. J. S. 2A:34-2(e), the necessary elements of which are (1) habitual drunkenness, (2) for a period of 12 or more consecutive months, (3) subsequent to the marriage, and (4) next preceding the filing of the complaint. The proofs clearly satisfy the last three.

We have no statutory or case law definition of habitual drunkenness although there is reference thereto in a few of our reported cases. The reference depends on the facts of the case. There is no abstract definition in our State. See Morrone v. Morrone, 44 N. J. Super. 305 (App. Div. 1957).

[Drunkenness] is the effect produced upon the mind or body by drinking intoxicating liquor to such an extent that the normal condition of the subject is changed, and his capacity for rational action and conduct is substantially lessened. [Lecates v. Lecates, 38 Del. 190, 190 A. 294, 296 (Super. Ct. 1937)]

However, it is much more difficult to indicate what is deemed to be habitual drunkenness in every case in which a divorce is sought on this ground. Dennis v. Dennis, 68 Conn. 186, 36 A. 34 (Sup. Ct. 1896).

Admittedly, a definitive statement designed to fix the factual limits of ‘habitual drukenness’ for all cases is neither possible nor desirable. Individual susceptibilities to habit defy accurate generalization. [Melheim v. Melheim, 228 Minn. 89, 36 N. W. 2d 398, 399 (Sup. Ct. 1949)]
Habitual intemperance is made a ground for divorce because of the physical, social, nervous and economic hazard it produces. [Todd v. Todd, 56 So. 2d 441, 443, 29 A. L. R. 2d 920, 924 (Fla. Sup. Ct. 1951)]

Many of our sister states have heretofore made habitual drunkenness a specific statutory ground for divorce and defined the words in case law. Lecates v. Lecates, supra; Todd v. Todd, supra; McBee v. McBee, 22 Or. 329, 29 P. 887 (Sup. Ct. 1892); Page v. Page, 43 Wash. 293, 86 P. 582 (Sup. Ct. 1906); O’Kane v. O’Kane, 103 Ark. 382, 147 S. W. 73 (Sup. Ct. 1912); Lewis v. Lewis, 235 Iowa 693, 17 N. W. 2d 407 (Sup. Ct. 1945); Kessel v. Kessel, 131 W. Va. 239, 46 S. E. 2d 792 (Sup. Ct. 1948); 120 A. L. R. 1176 (1939); 29 A. L. R. 2d 925 (1953); 24 Am. Jur. 2d, § 90 at 250 (1966). E. V. Rostow, “Drunkenness and Divorce,” 2 Quart. J. Stud. Alcohol, 529-606 (1941). From the congeries of their reasons we can draw a definition.

Habitual drunkenness is a fixed, frequent, irresistible or regular habit of drinking alcoholic beverages in such excessive quantities as to produce drunkenness.

Corroborated proof was that defendant progressed from a social drinker to an inebriate who was drunk four or five times a week on a regular basis both at home and in public.

Plaintiff’s proof is well within the legislative use of the words “habitual drunkenness.” Judgment of divorce to plaintiff under N. J. S. 2A:34-2(e).


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

text:
    JOHN EVO, PLAINTIFF, v. JOMAC, INC., A CORPORATION OF THE STATE OF PENNSYLVANIA AND THE FIRST PENNSYLVANIA BANKING AND TRUST COMPANY, ETC., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 23, 1972.

      Mr. Aaron W. Nussman for plaintiff (Messrs. Bach & Nussman, attorneys; Mr. Patrick J. Kelly on the brief).

      Mr. Edward V. Ryan for defendants (Mr. Edward V. Ryan and Mr. Reeder R. Fox of the Pennsylvania Bar on the brief).
   Larner, A. J. S. C.

Plaintiff was employed by Jomac, Inc., a national company based in Pennsylvania, in various capacities between November 1951 and November 1967. Initially he was hired as a salesman and in 1954 became district manager for sales of defendant’s products in a territory including northern New Jersey, New York City and lower New York State. In 1959, he became sales manager for the roller division of the company, a division which manufactured and sold rollers for use in the process of printing on metal and other surfaces. Plaintiff continued in this capacity until February 1967 when he was designated accounts manager with a change in his mode of compensation. This position involved the servicing of several of the largest accounts of the roller division, including plants of American Can Co., Continental Can Co., National Can Co., and Crown Cork Co. in New Jersey and the New York metropolitan area.

In 1967 the executives of the company became dissatisfied with plaintiff’s conduct, and after some discussion in November of that year he submitted his resignation at the request of the vice-president of the company. He was granted severance pay until the end of February 1968.

In June 1968 plaintiff went to work for William Recht Co. as a salesman in the northern New Jersey and New York metropolitan area, engaged in the sale of rubber printing blankets, inks and chemicals. However, in May 1969 a company known as Durex Industries was formed by Recht or its principals in a joint venture with Southern Rubber Co. This new company manufactured and sold rollers of the type handled by Jomac and sold by plaintiff while employed by Jomac. There is no question that Durex was and is in a line of business in direct competition with Jomac.

Although plaintiff has remained nominally as an employee of Recht, lie has engaged in selling on a commission basis the competitive products of Durex. In fact he has acted as sales manager for both companies, and has even solicited and obtained business from some of the major customers of Jomac which were assigned to Mm in his capacity as Jomac’s accounts manager.

The plaintiff seeks recovery from Jomac’s Employees Profit Sharing Plan of such moneys and benefits accruing to him as a result of the termination of his employment with defendant in November 1967.

When plaintiff commenced his employment with Jomac in 1951 there was in existence a pension plan for which he was eligible which provided for certain retirement benefits and insurance coverage and which called for contributions by the employer and employee. He remained a member of this pension plan until 1960. As of June 30, I960, the company unilaterally inaugurated a new retirement plan for the benefit of its employees, pegged to the profits of the company, which was designated as a “Profit-Sharing Plan.”

Under this new plan, the vested accumulations in the old pension fund and the cash value of insurance policies were automatically credited to the account of the employee in the new profit sharing plan. The new plan did not require contributions by employees, except that voluntary contributions could be made by way of increase of the employee’s interest in the ultimate available fund. In addition to payment from the plan upon retirement at age 65, there was also a provision for payment of benefits upon severance before the retirement age, based upon a schedule of the number of years of service. In any event, plaintiff’s service in the company for 16 years made him eligible for full benefits which would become payable at age 65, with the discretionary power of the supervising committee to authorize payment before that time.

If'the profit-sharing plan had remained in the same form as adopted in 1960, plaintiff admittedly would be entitled to the accumulations upon reaching age 65, as well as the benefits under the insurance policy which was maintained by the payment of premiums throughout the years of employment.

The controversy between the parties arises, however, because of an amendment to the profit-sharing plan adopted by the company in 1966. By this amendment the company provided that “notwithstanding any other provision of the plan, the amount payable to any former employee” whose employment has been severed prior to age 65 shall be terminated by the board of directors in the event that the employee shall at any time “engage in any activity which, in the judgment of the Board of Directors is in competition with the company’s business, and in such event, such former employee shall have no further rights under the plan and shall forfeit all benefits theretofore vested in him.”

Defendant concluded that plaintiff’s employment with Recht and Durex was in competition with its business and that the aforesaid amendment justified its refusal to pay any benefits to plaintiff.

The court finds from the evidence that plaintiff has been engaged in business activity in direct competition with Jomac, and that the determination by the board of directors to that effect is fully supported by the facts. Thus, if the 1966 amendment to the plan is valid and enforceable, plaintiff would be barred from recovery.

Initially, plaintiff attacks, the validity of the forfeiture clause on the basis that it constitutes a noncompetitive covenant which is unreasonable because it is limitless as to time and area. Hudson Foam Latex Products, Inc. v. Aiken, 82 N. J. Super. 508 (App. Div. 1964); Magic Fingers, Inc. v. Robins, 86 N. J. Super. 236 (Ch. Div. 1965). This contention is founded upon a misconception of the effect of the clause in the context of the profit-sharing plan. The inclusion of this clause does not restrict the right of the employee to engage in any employment or business activity in competítion with Jomac and Jomac does not seek to restrain him from doing so. The restrictive clause merely creates a choice for the employee. If he desires to compete, he gives up the plan benefits; if he wishes to retain the benefits, he must comply with the imposed conditions. Such an available choice removes the condition from the proscription of the public policy underlying covenants which unreasonably restrain an employee from earning a livelihood. Barr v. Sun Life Assurance Co., 146 Fla. 55, 200 So. 240 (Sup. Ct. 1941); Brown Stove Works, Inc. v. Kimsey, 119 Ga. App. 453, 167 S. E. 2d 693 (App. Ct. 1969) ; Flynn v. Murphy, 350 Mass. 352, 215 N. E. 2d 109 (Sup. Jud. Ct. 1966); Simons v. Fried, 302 N. Y. 323, 98 N. E. 2d 456 (Ct. App. 1951); Kristt v. Whelan, 4 A. D. 2d 195, 164 N. Y. S. 2d 239 (App. Div. 1957), aff’d 5 N. Y. 2d 807, 181 N. Y. S. 2d 205, 155 N. E. 2d 116 (Ct. App. 1958).

In fact, since the evidence demonstrates that the plan was adopted in Pennsylvania for a company and its employees who operated out of Pennsylvania and with a plaintiff who resided in that state while he performed as accounts manager, it is manifest that pursuant to either the traditional conflict of laws principle of lex loci contractus or the more recently evolving test of the application of the law of the state with the most significant relationship to the transaction and the parties, any substantive rights arising under the plan are measured by the law of Pennsylvania. Lewis v. Atlas Corporation, 158 F. 2d 599, 601 (3 Cir. 1946); Cockrell v. McKenna, 104 N. J. L. 592, 593 (E. & A. 1928); Keifhaber v. Yannelli, 9 N. J. Super. 139, 141-142 (App. Div. 1950); Avery v. Sielcken-Schwarz, 5 N. J. Super. 195, 199 (App. Div. 1949); Ray v. Beneficial Finance Co., 92 N. J. Super. 519, 530 (Ch. Div. 1966); Restatement, Conflicts of Laws 2d, § 188 (1969).

The opinion of the Pennsylvania Supreme Court in Garner v. Girard Trust Bank, 442 Pa. 166, 275 A. 2d 359 (1971), clearly supports the enforceability of the restrictive condition so long as the determination by the company as to the actuality of competition is not made arbitrarily. In view of the conclusion by this court that the board of directors was reasonably justified in finding that plaintiff did engage in competitive activity, the forfeiture provision in the plan would normally be enforceable.

However, the enforceability of the provision against plaintiff in this case involves other legal impediments brought about by the fact that neither the prior pension plan nor the profit-sharing plan when originally adopted in 1960 contained the forfeiture clause at issue.

The correlative rights and obligations of the employee and employer under both the pension and profit-sharing plans are governed by ordinary contract principles. These plans do not constitute mere gratuities on the part of the employer to be granted or withdrawn at the whim or largesse of the employer. The plans exist as a means of at tracting and retaining employees and their continued loyal and faithful service The employer not only gains this benefit but also qualifies thereby for favorable tax treatment by the Internal Revenue Service. In effect, the sums payable in the future are no less than deferred compensation for services rendered during the period of employment. As a consequence, “when the employee renders service in response to the promise of the trust plan, he acquires a right no less contractual than if the plan were expressly bargained for.” Russell v. Princeton Laboratories, Inc., 50 N. J. 30, 35 (1967). See also Renshaw v. United States Pipe & Foundry Co., 30 N. J. 458 (1959); Annotations, 81 A. L. R. 2d 1066, 1070 (1962) and 42 A. L. R. 2d 461, 463 (1955). This concept should be applied herein, for the recognition of a pension plan as a contract between employer and employee is implicit in the Pennsylvania cases interpreting the effect of restrictive conditions in such plans (see Garner, supra); and no Pennsylvania case has been cited to the contrary.

With an assumption that the determination of plaintiff’s rights must be governed by principles of contract law, the court is called up.on to determine whether the 1966 amendment can be applied to rights or benefits acquired prior to its adoption.

The first issue on this score is whether the benefits that had accrued to plaintiff under the old pension plan can be affected by the forfeiture clause adopted 15 years after he commenced his employment with defendant. Dor the answer to this query we need but turn to the representations made to employees when the change-over to the profit-sharing plan occurred in 1960.

In the document distributed to employees explaining the reasons for and the effect of the new plan, the company pointed out:

Your insurance policy contracts and your share of remaining assets will l)e considered your initial credit in the profit sharing plan. [Sec. A, p. 6]
A participant whose employment is terminated for reasons other than retirement, death, or total disability will be entitled to all assets transferred to liis account from the pension plan, plus * * * i other benefits under the profit sharing plan] [Sec. A, p. 8]
IMPORTANT NOTICE TO PARTICIPANTS IN THE PENSION PLAN
Within six months the old Jomac Pension Plan will be replaced by the Jomac Profit-Sharing Plan. This does not mean, however, that yon will lose your vested interest in the Pension Plan.

In the confines of the legal document entitled “Jomac, Tnc. Profit Sharing Plan,” section C, paragraph 6.3, there is the unequivocal statement:

The interest of a participant in policy contracts and other assets transferred from the pension trust shall be fully vested.

In view of these provisions it is manifest that the parties intended that the vested rights of employees in the existing pension plan would be preserved and protected from any inroads by virtue of the new profit sharing plan. And these rights could not be eliminated or reduced through the future operation of the profit-sharing plan or any subsequent amendments thereto. There is nothing in the documents in evideuce which can be construed as a waiver of these rights by the employee through the mere adoption of the profit sharing plan. Thus, whatever accumulations were credited to plaintiff in the pension plan as of June 30, 1960, when the profit-sharing plan was adopted, must be made available to him, together with the cash surrender value of the insurance to his credit as of that date.

But this does not dispose of the entire controversy since there still remains for resolution the effect of the 1966 amendment on accumulations and benefits which accrued between June 30, 1960 and March 25, 1966 (date of amendment of plan) and accumulations which accrued between March 25, 1966 and November 1967 when plaintiff’s services were terminated.

The amendment of the plan was adopted pursuant to the right of amendment reserved in the basic document (Art. 13.1) which provided:

The Plan may be amended, in whole or in part, by the Company at any time and from time to time, provided that no such amendment shall operate to deprive any participant of any rights or benefits thereto having accrued to him under the Plan, except to such extent as may be necessary to enable the Plan to meet the requirements of the Internal Revenue Code, and provide further that the Plan, as amended, shall be for the exclusive benefit of employees and their beneficiaries.

Jomae contends that this reserved right mandates that the 1966 amendment providing for forfeiture in the event of competitive activity bars recovery for any rights or benefits which accrued prior or subsequent to the amendment.

It is urged that the rights to benefits in tire profit-sharing plan did not become vested until and unless the employment was terminated, and since that did not occur until November 1967, plaintiff’s rights under that plan should be controlled by the 1966 amendment. See McCostis v. Nashua, Pressmen Union, 109 N. H. 226, 248 A. 2d 85 (Sup. Ct. 1968).

There are no Pennsylvania or New Jersey cases with any definitive holdings on the effect of an amendment upon benefits which have accrued prior to its adoption. Therefore this court is free to reach an independent conclusion on this issue, aided by the logic and wisdom of precedents in other jurisdictions.

In Kristt v. Whelan, 4 A. D. 2d 195, 164 N. Y. S. 2d 239 (App. Div. 1957) aff’d 5 N. Y. 2d 807, 181 N. Y. S. 2d 205, 155 N. E. 2d 116 (Ct. App. 1958), the New York court sustained the position of the employer in barring recovery of any sum from a pension trust because of the forfeiture produced by competitive activity, despite the fact that the forfeiture provision resulted from an amendment during the employment. To the same effect, see McNevin v. Solvay Process Co., 32 App. Div. 610, 53 N. Y. S. 98 (App. Div. 1898), aff’d 167 N. Y. 530, 60 N. E. 1115 (Ct. App. 1901); McCoslis v. Nashua Pressmen Union, supra; Connors v. Howard Stores Corp., 23 A. D. 2d 686, 257 N. Y. S. 2d 608 (App. Div. 1965). This determination is bottomed upon the right of amendment reserved in the underlying trust indenture and the concept that the inchoate right of the employee does not become vested until the termination of his employment. Hence, these courts conclude that the amendment is a valid and enforceable provision as applied to the total benefits which may have been due at the time of vesting, namely the termination of employment.

It is the opinion of this court that these holdings should be applied herein and that the reservation of an unlimited right to amend by the employer in a pension plan, followed by a forfeiture provision adopted by amendment after the commencement of employment, contractually supports the validity of the forfeiture as to all benefits prior to vesting.

This determination, however, is justified only where the reserved right of amendment is unfettered—a condition which either existed or was assumed by the courts in the cited cases. Cf. dissent in Kristt v. Whelan, supra, 164 N. Y. S. 2d at 244.

As already noted, the power of amendment reserved by Jomac in its profit-sharing plan assured the employees that “no such amendment shall operate to deprive any participant of any rights or benefits thereto having accrued to him under the Plan.” The key to this clause is the meaning and intent of the word “accrued,” which in common usage means “accumulated,” as in the phrases “accrued interest” or “'accrued liability.” See Random Souse Dictionary (1966). In the latter phrases, the word “accrued” connotes the accumulation of the fund which is not necessarily due at the time.

It is also significant that the scrivener did not equate the term “accrued” with “vested” for a perusal of the entire plan reveals that when the company intended all the legal consequences attributable to a vested right it utilized the word “vested” and not “accrued.” For example, Art. 9.1: * * shall forfeit all benefits theretofore vested in him”; Art. 6.3: “The interest of a participant * * * transferred from the pension trust shall be fully vested” ; Art. 14.3 : “No employee * * * shall have any right or claim to any benefit under the plan unless such benefit has become vested * * *” It can reasonably he concluded that the use of the term “accrued” in the amendment article was not intended as a synonym for the legal work of art, “vested,” but rather in the ordinary sense of “accumulated.”

Moreover, since the plan did not result from a consensual bilateral negotiation but represented a unilateral work product of the employer, any ambiguities in the language should be resolved against the company. Terminal Construction Corp. v. Bergen County, etc., District Authority, 18 N. J. 294, 302 (1955); Jennings v. Pinto, 5 N. J. 562, 569 (1950); Moses v. Edward H. Ellis, Inc., 4 N. J. 315, 322-323 (1950); Buscaglia v. Owens-Corning Fiberglas, 68 N. J. Super. 508, 519-520 (App. Div. 1961), aff'd 36 N. J. 532 (1962); Summer v. Fabregas, 52 N. J. Super. 399, 408 (App. Div. 1958). And the general disfavor of forfeiture, together with the policy of liberal construction in favor of the employee, further dictates a construction, which would avoid such a drastic result. Stopford v. Boonton Molding Co., Inc., 56 N. J. 169, 184-185 (1970); Russell v. Princeton Laboratories, Inc., 50 N. J. 30, 35 (1967).

This analysis of the language of the amendment provision leads to the conclusion that the reservation of the right to amend was limited by the instrument itself, so as to foreclose the operation of any amendment which would deprive a participant from the enjoyment of such rights or benefits which had accrued to him prior to the adoption of the amendment. An interpretation to the contrary which would limit the effect of the caveat in the amendment provision to rights and benefits vested only after retirement would be meaningless, for the mere vesting by retirement would sufficiently protect a participant from inroads by amendment without the provision at issue. See dissent by Justice Eabin in Kristi, supra. To give the clause meaning and significance it must be interpreted to protect an employee from forfeiture of all accumulations which were to his credit as of the time of the amendment. Any accumulations subsequent to the adoption of the amendment, however, are not protected by any limitation in the right to amend. Hence, as to such subsequent credits the forfeiture provision is applicable.

In view of the foregoing, judgment will be entered declaring that plaintiff is entitled to all funds and cash surrender value of insurance policies to his credit in the profit-sharing plan (including those transferred from the pension plan) prior to March 25, 1966, which was the date of adoption of the forfeiture amendment. Plaintiff is not entitled to any accumulations subsequent to that date.

The parties should be able to agree upon the computation of the amount due as of the aforesaid date and whether the accumulations from the fund should be paid now or when plaintiff reaches 65 years of age. If they cannot so agree, the court will hear argument thereon in connection with settling the form of the order.


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

text:
    FELIX DANIELLO, PETITIONER-APPELLANT, v. MACHISE EXPRESS CO., RESPONDENT-RESPONDENT.
    Atlantic County Court, Law Division
    Decided March 24, 1972.
    As Corrected April 4, 1972.

      Mr. Marie A. DeMarco for appellant (Messrs. Gurdo, Donio & DeMarco, attorneys).

      Mr. William G. Freeman for respondent (Messrs. Freeman, Freeman & Spence, attorneys).
   Horn, A. J. S. C.

Petitioner appeals from the dismissal of his claim petition by a judge of compensation. Specifically, the judge found that injuries suffered by appellant on September 16, 1969 while in the employ of respondent Maehise Express Co. were not sustained in the course of his employment with it as a truck driver.

On September 16, 1969 Daniello, the employee, as usual drove to his place of employment and reported to work at 4:30 am., wearing a uniform furnished by himself. There he received his assignment, got into his tractor-trailer truck, which was empty at that time, and drove to the Mobil Oil Company refinery in Paulsboro, New Jersey. He checked in at the gate and then pulled his truck underneath the rack in order to load it with jet fuel. In accordance with the custom at the depot, he loaded his own truck. After arriving at the platform he hooked up the conducting pipe to the trailer tank aperture. The fuel emerged with great force and splashed up, permeating his uniform and body with fumes.

After the tank was filled he sealed it and drove to McGuire Air Force Base, where the fuel was conducted by means of a pipeline into fuel storage tanks. On this particular day he returned to Paulsboro and got another load of the jet fuel. Again, while loading his tank, fumes lodged on his clothing and body.

lie then took the second load of fuel back to McGuire Air Force Base and unloaded it in the same manner. When this was completed he returned to the trucking yard of respondent in Hammonton. It was now the end of his working day and, as usual, he refueled his tractor and parked the truck. He then went into the garage, spoke briefly with a fellow employee and told him that he was going home. As there was no necessity for him to check out in any office, and there being no facilities to change clothing or to shower, he got into his ear, which was parked in a space in the employer’s yard, and drove about lyí miles to his home.

When he arrived home he parked his car and noticed his eight-year-old son taking some trash out to the backyard to place it in a drum-type incinerator to be burned at a later time. He yelled to his son that he would burn it, since he never allowed his son to burn the trash. He then struck a match and immediately thereafter “exploded.” The fire was caused by the match igniting the fumes of jet fuel which had lodged on his clothing and body. As a result of this explosion, his shirt and some other articles of clothing caught fire, causing petitioner to receive injuries for which he sought compensation.

The sole issue presented in this appeal is whether the employee sustained a compensable accident when he was burned. Did this accident arise out of and in the course of his employment?

The judge below denied compensation on the ground that the injuries were caused by an intervening direct force totally unrelated to the employment. ‘He felt, also, that the fact that the injury occurred at the employee’s home made the liability of the employer even more remote. He concluded that the risk was not reasonably incidental to the employment.

I disagree with his conclusions. When an injury occurs under prescribed conditions, compensation must be awarded upon broader and more humane rules. To accomplish the purposes for which the compensation law was enacted, the court will give its provisions the most liberal construction that it will reasonably bear in favor of the injured employee in order to avoid harsh results to the worker and his family. Fantasia v. Hess Oil and Chemical Corp., 110 N. J. Super. 360 (Cty. Ct. 1970); Silagy v. State, 101 N. J. Super. 455 (Cty. Ct. 1968). The construction given the Workmen’s Compensation Act below was unduly restricted.

The standard to be applied in determining whether an accident arose out of and in the course of the worker’s employment is always reasonableness. Cavalcante v. Lockheed Electronics Co., 85 N. J. Super. 320 (Cty. Ct. 1964); aff’d 90 N. J. Super. 243 (App. Div. 1966). The phrase “arising out of and in the course of his employment” in the Workmen’s Compensation Act (N. J. S. A. 34:15-1) has been given a broad interpretation, since the act was intended to place the cost of accidental injuries which are work-connected upon employers, who may provide for them as operating expenses. Renshaw v. United States Pipe & Foundry Co., 30 N. J. 458 (1959); Tocci v. Tessler and Weiss, Inc., 28 N. J. 582 (1959).

An accident “arises out of employment” when in some manner it is due to the risk reasonably incidental to the employment, if the employment is a contributing cause of the accident resulting in the injury, and if the employment is a necessary factor leading to the accident, even though the employment is not the sole or proximate cause of the injury. Hammond v. Great Atlantic and Pacific Tea Co., 56 N. J. 7 (1970); Tocci v. Tessler and Weiss, Inc., supra; Sanders v. Jarka Corp., 1 N. J. 36 (1948).

The act does not embody the common law concepts of either fault or proximate cause; it is enough if the employment is a contributing cause of disability. Reilly v. Weber Engineering Co., Inc., 107 N. J. Super. 254 (Cty. Ct. 1969); Wexler v. Lambrecht Foods, 64 N. J. Super. 489 (App. Div. 1960); Crotty v. Driver Harris Co., 49 N. J. Super. 60 (App. Div. 1958); Secor v. Penn Service Garage, 35 N. J. Super. 59 (App. Div. 1955), aff’d 19 N. J. 315 (1955); Fenton v. Margate Bridge Co., 24 N. J. Super. 450 (App. Div. 1953).

To be within the Workmen’s Compensation Act the injury must be causally connected to the employment. There must be a causal connection between the conditions under which the work is required to be done and the resulting injury. Dudley v. Victor Lynn Lines, Inc., 32 N. J. 479 (1960) ; Hall v. Doremus, 114 N. J. L. 47 (E. & A. 1934). The risk, if reasonably incident to employment, need not be foreseeable or expected, as long as it is a natural consequence from a risk connected with the employment. Silagy v. State, supra; Gargiulo v. Gargiulo, 13 N. J. 8 (1953); Sanders v. Jarka Corp., supra; Grant v. Grant Casket Co., 137 N. J. L. 463 (Sup. Ct. 1948); Gellman v. Reliable Linen and Supply Co., 128 N. J. L. 443 (Sup. Ct. 1942).

An employee is not deprived of benefits of the Workmen’s Compensation Act simply because he was not actually working when the accident occurred, as long as the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the employment. Reilly v. Weber Engineering Co., supra; Rice v. Pharmaceuticals, Inc., 65 N. J. Super. 579 (App. Div. 1961); Buerkle v. United Parcel Service, 26 N. J. Super. 404 (App. Div. 1953)

The question presented is one of first impression in New Jersey. There appear to be no reported precedents in our State dealing directly with this particular factual complex.

Respondent’s primary contention is that the accident did not arise “in the course of” the employment. Judge Goldmann, in Meo v. Commercial Can Corp., 80 N. J. Super. 58 (App. Div. 1963), related the judicial evolution of that phrase from the definition adopted in Bryant, Adm’x v. Fissell, 84 N. J. L. 72, 77 (Sup. Ct. 1913), to the more recently adopted the so-called “going and coming” rule.

Meo sustained payment of compensation to an employee who was attacked at his home during a strike. The employee was on 24-hour duty and under' express direction as plant superintendent to keep the plant going at all.costs. The fact that he was on 24-hour duty was a major factor on the basis of which the court justified holding that even though the assault took place at his home, the injury was compensable. Por this reason it does not meet the issue presented in the instant case.

In 1 Larson, Workmen’s Compensation Law, § 29.21 at 452.102, work-connected assault cases where the assault tabes place outside of the working hours are discussed. Larson supports the view of some courts that compensation should be paid if the origin of the injury arose out of and in the course of the employment, notwithstanding the assault took place when and where the emploj^ee was not performing some service for his employer or was “going or coming.”

Larson, in § 29.22 at 452.106 refers to two cases which he feels were decided erroneously because of the narrow and restrictive meaning accorded to the respective workmen’s compensation acts respectively applied. In one, compensation was denied to an employee who was injured while shaving at home as the result of the explosion of a dynamite cap left in his pocket from work at his employer’s plant. Gill v. Belmar Constr. Co., 226 App. Div. 616, 236 N. Y. S. 379 (N. Y. App. Div. 1929).

In the other a riveter, during the course of his employment, was subject to needle-pointed metal shavings becoming lodged in his hair, clothing and eyebrows. The employer provided no place to change clothes and no facilities for removing these particles. The employee left for home with some of these shavings still clinging to him, and when he wap almost home, about 15 minutes after the close of working hours, a sharp steel sliver fell from his eyebrow into his eye, causing severe injury. The court declined compensation. American Motorists Insurance Co. v. Steel, 229 S. W. 2d 386 (Tex. Civ. App. 1950).

The judge of compensation below relied partly on these two precedents in disallowing recovery by the employee. Thus, he adopted the reasoning of cases which not alone do not accord with present concepts, but represent the earlier strict reasoning of courts which failed to adhere to the fundamental objects of workmen's compensation laws.

Larson observed that the common element in these cases is the fact that the originating cause of the injury is something that occurs entirely within the time and place limits of the employment. “The time-bomb, so to speak, is constructed and started ticking during working hours; but it happens to go off at a time and place removed from the employment.”

He suggests forcibly that the interpretation of Judge Cardoso in Field v. Charmette Knitted Fabric Co., 245 N. Y. 139, 156 N. E. 642 (N. Y. Ct. App. 1927), that the injurious incident “from origin to ending must be taken to be one,” should be adopted.

In Joy v. Florence Pipe Foundry Co., 64 N. J. Super. 13 (App. Div. 1960), the court affirmed an award of compensation for permanent injuries resulting from cerebral hemorrhage precipitated by activities while at work, although the hemorrhage actually took place in the employee’s hotel room on the morning following the last working day.

The employer contended that since the stroke occurred in the employee’s hotel room after a night’s sleep, it did not arise in the course of his employment. In rejecting this contention, the court gave weight to the fact that the employee was living away from home because of the project and that a travelling employee is considered to be continually at work. However, it also stated:

Secondly, we deem it necessary to point out the error inherent in a too strict construction of the clause, ‘in the course of his employment.’ The primary inquiry should always he whether the injury for which compensation is sought is loorlc-connected; the point in time at which that injury manifests itself should not he determinative. If the contributing or causative factors occur in the course of the employment, it is not necessary that the consequent disability manifest it self at that time. * * * Dean Darson accurately comments that: ‘* * * in Workmen’s Compensation the controlling event is something done to, not by, the employee, and since the real question is whether this something was an industrial accident, the origin of the accident is crucial, and the moment of manifestation should he immaterial.’ [Larson, supra, § 29.22 at 449; emphasis added]

In Dwyer v. Ford Motor Co., 36 N. J. 487 (1962), the employee, already suffering coronary insufficiency, did laborious work at his employer’s plant and upon returning home suffered a fatal heart attack. The Supreme Court held that the employment strain was a major contributing factor in producing the occlusion from which he died, for which his dependents were entitled to compensation under the statute.

Thus, it appears that our courts have already adopted the “origin” thesis espoused by Larson. The weight of reason supports this interpretation.

In Secor v. Penn Service Oarage, supra, an employee spilled some gasoline on his trousers and was told to change them. In a foolhardy manner and, of course, exercising poor judgment, he struck a match to indicate that he was not in a dangerous situation. As a result, his uniform went up in flames and he was burned. In allowing compensation the court held that the injuries were “from a risk reasonably incidental to the employment. * * *”

The difference between the facts of Secor and the case before me is slight. In the former the match was struck at the place of employment; in the latter it was struck a short time later after the employee left his place of employment. Some might argue with conviction that the foolhardy act of the employee in attempting to demonstrate the lack of danger was an act so far outside the employment that he was entitled to no compensation.

In the instant case the act of striking the match was the result of sheer forgetfulness or lack of the appreciation of danger only.

In any event, the recovery in one and the lack of recovery in the other can only be distinguished on factitious or synthetic grounds which may only be considered as illusory and without substance. Certainly the denial of compensation runs counter to the holdings in Joy and Dwyer.

Accordingly, the dismissal of the petition is reversed and the record is remanded to the Workmen’s Compensation Division for the purpose of determining the amount of compensation to which petitioner is entitled and making this as well as such other awards as are required by the Act.