author: Michels, J. A. D.

text:
    HARRIET ACKEN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT C. ACKEN, PLAINTIFF-RESPONDENT, CROSS-APPELLANT, v. JAMES ALLEN CAMPBELL, DEFENDANT, AND THE READING COMPANY, A PENNSYLVANIA CORPORATION, AND THE ELIZABETHTOWN WATER COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS-APPELLANTS, CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 28, 1974
    Decided August 7, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. Raymond W. Troy argued the cause for defendant-appellant and cross-respondent The Reading Company (Messrs. Lum, Biunno & Tompkins, attorneys; Mr. Michael F. Spiessbach on the brief).

      Mr. Frank Gallagher argued the cause for defendant-appellant and cross-respondent The Elizabethtown Water Company (Mr. Gallagher and Messrs. Hueston, Hueston & Sheehan, attorneys; Mr. James G. Leonardson and Mr. Clifford J. Sheehan on the brief).

      Mr. Albert G. Besser argued the cause for the plaintiff-respondent and cross-appellant (Messrs. Hannoch, Weisman, Stern & Besser, attorneys; Mr. Joseph J. Fleischman on the brief).
   The opinion of the court was delivered by

Michels, J. A. D.

Plaintiff Harriet Acken, individually and as executrix of the estate of Robert C. Acken (decedent), instituted this action to recover damages for the wrongful death of decedent, her husband, as the result of an accident at a railroad crossing. The action was originally instituted against defendants The Reading Company (railroad) and its engineer James Allen Campbell. At the first pretrial conference Campbell was eliminated as a defendant. The complaint was amended thereafter to join defendant Elizabethtown Water Company (water company).

Acken was employed by H. W. Alward Construction Co., an independent contractor, which was engaged in performing construction work on the premises of the water company at the time of the accident. On January 8, 1969, at about 8:45 A.M., Acken, with Robert Gifford, a co-employee, as a passenger drove his pick-up truck from the water company property in a northerly direction on a road known as Polhemus Lane intending to cross a certain railroad crossing located thereon. As Acken reached the crossing the pick-up truck was struck by a Reading train, and Acken was killed. The train’s headlight was on and the bell ringing, although the horn was not being sounded. The engineer of the train did not see the pick-up truck until the moment of impact due to a white pick-up truck which was parked on railroad property near the track. The distance from the entrance of the water company property to the crossing was about 60 feet. Gifford, who testified, over objection, that Acken had the habit of coming to a stop to make observations on the several occasions he had driven with him over the crossing, also testified that at the time of the accident Acken was driving at about ten miles an hour, the heater was on, the windows were rolled up, and the two were engaged in light conversation. About three-quarters of a mile back from the crossing towards the plant, they stopped once to use the “inter-com” radio to call someone for equipment. The next thing Gifford remembered was getting hit by something and waking up under a train. He testified that he had no recollection of what transpired between the radio conversation and waking up after the accident.

The jury rendered a verdict in favor of plaintiff against the railroad and the water company in the amount of $170,000, and the trial judge added interest in the amount of $25,962.25, pursuant to R. 4:42-11. The case was submitted to the jury with special interrogatories. The jury found both defendants guilty of willful and wanton negligence, and decedent not guilty of contributory negligence. The interrogatories submitted to the jury provided that if there was a finding of willful and wanton negligence, the jury was not to answer the interrogatories asking whether they found defendants guilty of negligence. With respect to the survival action, the jury found that Acken did not survive the accident and did not suffer conscious pain and suffering, and consequently did not award damages therefor. Defendants moved for a new trial, which motion was denied. They both appealed from the judgment entered against them and from the order denying their motions for a new trial. Plaintiff cross-appealed from the jury’s refusal to award punitive damages.

The railroad contends at the outset that the trial court erred in submitting to the jury the issue of whether the crossing at Polhemus Lane was a public or private crossing, and in charging the jury as to certain statutory regulations applicable only to public crossings because there was no evidence that the crossing was other than private; and that the trial court should have so held as a matter of law.

The Legislature has established statutory regulations for the operation of railroad trains at grade crossings. N. J. 8. A. .48:12-54 to 58. These statutes apply to grade crossings at public roads, and in pertinent part provide as follows:

N. J. S. A. 48:12-54:
Every company operating on a fixed track or tracks, freight or passenger trains or cars, shall provide protection to pedestrians and the traveling public at every crossing of its tracks by any public road. Such protection may be in the form of safety gates, flagmen, electric bell, electric signs or other recognized system of alarm or protection approved by the Board of Public Utility Commissioners.
N. J. -S'. A. 48:12-57:
Every railroad company shall place on each engine a bell weighing not less than 80 pounds which shall be rung continuously in appreaching a grade crossing of a highway, beginning at a distance of at least 300 yards from the crossing and continuing until the engine has crossed such highway, or a whistle or horn operated by steam, air or electricity, which shall be sounded, except in cities, at least 300 yards from the crossing and at intervals until the engine has crossed the highway.
N. J. S. A. 48 :12-58 :
Every railroad company shall install and maintain at each highway crossing at grade a conspicuous sign with such inscription and of such standard and design as shall be approved by the Board of Public Utility Commissioners, so as to be easily seen by travelers.

The railroad’s operating Bule 14L provides that at public crossings engine whistles will be sounded, and operating Bule 14P provides that a succession of short sounds of the locomotive whistle or horn be used as an alarm for persons or livestock on the tracks. The trial judge charged, in substance, the aforementioned statutory regulations and railroad operating rules, instructing the jury in part:

If you find that the Polhemus Lane crossing was private at the time of the accident, then the prescribed protective measures were not required by statute.

Our study of chapter 12 of Title 14 fails to reveal the existence of a statutory definition of “public road” or “highway.” Chapter 15 of Title 48, however, provides:

The word “street” when used in this chapter means and includes a public street, avenue, highway, road, alley, lane, plaza, square or' other public place. [A. J. S. A. 48:15-1; emphasis supplied]

It has been held under the Traction Act of 1893, the predecessor of the above statutory section, that a street laid out by an owner upon Ms own land and dedicated by Mm to the public was not a street or a highway within this section in the absence of acceptance by the public authorities, where they assumed no care for the street despite occasional use for passage by pedestrians or vehicles. Pease v. Traction Co., 69 N. J. L. 165, 167 (Sup Ct. 1903). In Parsippany-Troy Hills Tp. v. Bowman, 3 N. J. 97, 104 (1949), where our Supreme Court was concerned with the question of whether a certain highway was a “public road,” the court set forth the three methods by which a public highway may be established, as follows:

1— By a laying out according to the statute;
2— By the uninterrupted use and enjoyment by the public of the road as a highway for not less than 20 years without any circumstances to negative the intention to dedicate, and
3— By the actual dedication by the owner to the public as a highway.

In Olsen v. Erie Railroad Co., 99 N. J. L. 485 (E. & A. 1924), the court affirmed a nonsuit for plaintiff whose decedent was killed while walking across defendant’s tracks at a crossing built by a certain company and used only by those doing business with that company. The court held that the crossing was a private one, and that a jury could not have found otherwise. It was stated by the court:

There is no evidence that the Edison crossing is a public highway. The evidence is to the contrary. A public highway can be established by prescription (Riverside v. Pennsylvania Railroad Co., 74 N. J. L. 476, 479), even across the right of way of a railroad company. (Drelich v. Erie Railroad Co., 91 Id. 600, 602.) One of the essential attributes of a prescriptive right is the use by the public of the neighborhood. Riverside v. Pennsylvania Railroad Co., supra. In our view, such a public use is not made out by proof of the use of a crossing, either by the employees of or those having business with the concerns to whose plants or docks it gives access (Staud v. Public Service Railway Co., 97 Id. 297), or by one individual. (Wood v. Hurd, 34 Id. 87.)
In the instant ease, the testimony showed that, with the exception of one police captain, the only persons using the Edison crossing were its employees, or invitees and boat captains, employed on barges using the docks. Their use of the crossing, in such circumstances, was not indiscriminate and in their capacity as members of the general public, but because of their relationship to particular property owners or users, [at 487]

The test employed in tbe Olsen case was quoted with approval by the Appellate Division in Stallone v. Schiavone-Bonomo Corp., 103 N. J. Super. 170 (App. Div. 1968), certif. den. 53 N. J. 226 (1969), a workmen’s compensation case, where the pivotal issue was whether the petitioner’s husband was killed while on a public highway. The court stated:

Appellant’s proofs fell short of the mark of supporting its contention that the paved strip was in fact a public street. The mere fact that the public was not excluded is not enough to create a use by prescription. The inquiry should be: Did those who passed and re-passed over the strip use it indiscriminately and in their capacity as members of the general public, or did they do so because of their relation to particular property owners or users as, for example, appellant company? See Olsen v. Erie R. R. Co., 99 N. J. L. 485, 487 (E. & A. 1924). The record establishes that the latter was the actual situation. The private nature of the strip was not necessarily destroyed by the fact that it linked two city streets. Cf. Cerria v. Union. News Co., 31 N. J. Super. 369, 372 (App. Div. 1954). [at 174]

In Webb v. W. Jersey and Seashore R. Co., 100 N. J. L. 204, 206 (Sup. Ct. 1924), the plaintiff was injured when she drove across an undisputedly private railroad crossing. Defendant railroad appealed a verdict in favor of plaintiff alleging, among other things, that the verdict was against the weight of the evidence. The court, in rejecting defendant’s contention, noted that since the crossing was private the statutory provisions relating to required signals did not apply.

In Gifford v. Pennsylvania R. Co., 119 N. J. L. 397 (E. & A. 1938), where decedent was killed in driving across an undisputedly private crossing of defendant railroad, the court noted, with respect to the applicability of the original 1910 enactment of N. J. S. A. 48:12-83 (which mandates that contributory negligence is a jury question in any crossing accident case where the crossing has no protective device) :

It is not suggested that the statute of 1910 {Pamph. L., p. 490) applies, and probably not, as that act by its title is limited to crossings of public streets and highways, and, as already observed, the road in question was a private crossing, [at 397]

See also, Michael A. Scatuorchio, Inc., v. N. Y., S. & W. R. R. Co., 10 N. J. Misc. 528, 529-531, 159 A. 704 (Sup. Ct. 1932); 74 C. J. S. Railroads § 1, at 318 (1951).

Whether a road is a “public” road or highway is ordinarily a jury question. See Parsippany-Troy Hills Tp. v. Bowman, supra, 3 N. J. at 103. It is generally held that “[i]n an action by a person injured in using a path across railroad tracks, it is usually left to the jury to determine the extent and length of the use of the path by the people in the vicinity of the crossing, and by the public generally, and consequently to determine whether the plaintiff in using the path is to be considered as an invitee or licensee permitted by the railroad company to use the path.” (Emphasis added) 65 Am. Jur. 2d, Railroads, § 420, at 591 (1972). However, when it is clear that reasonable men cannot disagree as to a conclusion, the general rule is that the question is one of law for the court and not for the jury. Brogan v. Passaic Daily News, 22 N. J. 139, 149 (1956).

* =s [W]ken the proof of a particular fact is so meager or so fraught with doubt that a reasonbly intelligent mind could come to no conclusion hut that the fact did not exist there is no question for the jury to decide. Likewise, when the proof on a question of fact is so strong as to admit of no reasonable doubt as to its existence, again, there is no question for the jury to decide. In both these cases the court must make the determination and advise the jury accordingly * * * [Ferdinand v. Agricultural Ins. Co. of Watertown, N. Y., 22 N. J. 482, 493 (1956) ; citations omitted]

Our review of the record below convinces us that there was absolutely no proof presented that the railroad crossing at Polhemus Lane was a public crossing. The evidence as to the nature of Polhemus Lane was to the contrary. Two telegrams sent by defendant railroad were offered into evidence by plaintiff. Both, one addressed to the Department of Public Utilities, and the other to the Director of the Division of Railroads, referred to the crossing as “Elizabethtown Water Works’ private crossing.” The evidence established that there was a sign posted on the road facing the approach to the railroad’s property which stated “private crossing.” James II. Thompson, a coemployee of decedent, in his testimony referred to (he crossing going into the plant as “that private lane.” K. M. Fetzer, chief of the Bridgewater Township Police, testified that he believed Polhemus Lane to be private. Also, Daniel Cardón e, shop steward at the water company, another witness called by plaintiff, testified that he knew the difference between a private and a public crossing and that Polhemus Lane was a private crossing. Jerry Gaden, the water company’s plant superintendent, also testified that it was his understanding that the intersection under discussion was a private crossing. Howard Clark, township engineeer of Bridgewater, testified that Polhemus Lane was designated on the township’s tax map as a private road. Finally, Donald Melley, the brakeman of the train, testified that to his knowledge it was a private crossing.

The evidence relied upon by plaintiff, that plant employees, construction workers, salesmen and delivery men traversed this crossing, is not proof of a use of the crossing that was “indiscriminate and in their capacity as members of the general public,” but, rather, is proof of a use “because of their relationship to particular property owners or users.” See Olsen v. Brie Railroad Co., supra. Nor does the evidence, which plaintiff also relies on, that occasional hunters or fishermen traversed the crossing, despite their being prohibited from doing so, tend in any way to prove the requisite use in order to constitute the crossing a public one. Thus, we are of the view that it was error for the trial court to submit to the jury for their determination the issxie as to whether the Polhemus Lane crossing was a “public” or “private” crossing, thus permitting the jury to consider the statutory regulations and the railroad operating rules which apply only to public crossings. We hold that the trial judge should have determined this issue as a matter of law under the facts present in the record. Since the trial judge did not submit special interrogatories to the jury as to whether the Polhemus Lane crossing was a public or private crossing, there is absolutely no way to determine whether the jury found the crossing to be a public or private crossing, and whether the finding of willful and wanton negligence was based upon the violation of the statutory regulations and railroad operating rules applicable solely to public crossings. The error therefore was “clearly capable of producing an unjust result” and of denying the railroad a fair trial and a decision on the merits. The error in our view constituted reversible error, mandating reversal of the judgment against the railroad. See B. 2:10-2; State v. Macon, 57 N. J. 325, 337-338 (1971).

The railroad and the water company contend that the trial court also erred in submitting the question of willful and wanton negligence to the jury and in denying their motions for dismissal and entry of judgment with respect to this charge.

The elements of willful and wanton negligence were well defined by our Supreme Court in the case of McLaughlin v. Rova Farms, Inc., 56 N. J. 288 (1970), wherein it was stated:

In our State in order to recover for injuries allegedly produced by -willful and wanton misconduct, it must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. [Citations omitted]
* * * fc In * * *■
As this Court indicated in Krauth v. Israel Seller and Buckingham, Homes, Inc., supra, 31 N. J. 270, willful and wanton misconduct signifies something less than an intention to hurt. To establish that condition it is not necessary that the defendant himself recognize his conduct as being extremely dangerous; it is enough that he know, or has reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct. Taylor v. Lawrence, supra [229 Or. 259], 366 P. 2d [735], at 739; Restatement, Torts 2d, supra, § 500, comment c. p. 589. [at 305-306]

The thrust of plaintiff’s argument, that the railroad was guilty of willful and wanton negligence, as we glean it from plaintiff’s brief and as articulated by plaintiff’s counsel at oral argument, is twofold. First, plaintiff charges that the railroad ignored the menace of cars parked near the crossing and did not change its operating policies accordingly. Specifically, it is charged that the railroad did not require its engineers to sound a horn as it approached this crossing and failed to provide a warning of an approaching train to those who traveled on Polhemus Lane, in spite of the fact that the railroad had “actual knowledge that the parking of the vehicles created an obstruction and imposed a danger.” Second, plaintiff charges that the railroad treated the crossing as a private crossing and, therefore, refused to comply with the statutory regulations and railroad operating rules for the operation of trains at grade crossings. With respect to the latter contention, since we have held that the Polhemus Lane crossing was not a public crossing but rather a private crossing, and that the statutory regulations and the railroad operating rules for railroad trains at public crossings^ did not apply, the railroad was correct in its determination that the Polhemus Lane crossing was a private crossing, and that it was not under a duty to comply with the statutory regulations and certain of its operating rules relating to public crossings. The railroad was not legally required to sound a horn at the Polhemus Lane crossing, and its alleged refusal to order its engineers to do so does not constitute willful and wanton negligence. With respect to the former charge, we are of the view that there was not sufficient evidence produced to create a triable issue of willful and wanton negligence. The evidence present in the record and the most favorable legitimate inferences to be drawn therefrom establish that defendant knew that employees of the water company and others, such as Acken, doing business with the water company, frequently traveled the crossing at Polhemus Lane; that the parking of cars obstructed a portion of the view of the tracks at a certain point, and that there had been some complaints regarding the trains coming through the crossing without sounding their horns. While these facts and circumstances support a charge of ordinary negligence, when considered in the light of common experience and the judicial precedents in this State, they do not constitute conduct sufficient in our view to establish willful and wanton negligence on the part of the railroad.

In Staub v. Public Service R. Co., 97 N. J. L. 297 (1922), our former Court of Errors and Appeals affirmed a judgment of nonsuit in an action by a plaintiff injured when his vehicle was struck by the defendant’s trolley car being operated over a private right-of-way. The court held, contrary to the defendant’s assertion, that there was no evidence of “intentional wrongdoing which amounts to willful or wanton injury.” In reaching this result, the court stated:

The appellant further contends that the case should have been submitted to the jury, because the evidence discloses that the defendant’s motorman was guilty of wanton and willful injury to the plaintiff’s property. The appellant argues that the road operation required the use of many trucks and teams for the hauling of gravel; that the defendant’s servants were aware that these trucks and teams were passing over the crossing; that the crossing was obstructed by shrubbery so that one driving a truck could not obtain a view of the tracks towards the east until within a few feet of it; that with knowledge of these conditions a motorman who propelled his car rapidly towards the crossing without warning was guilty of inflicting a willful and wanton injury. This argument is specious. These facts do not constitute that intentional wrong-doing which amounts to willful or wanton injury.
To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. 29 Cyc. 509. There is no evidence in this case that the motorman of the car could see the truck upon the track and after such discovex’y with ample opportunity to stop his car before a collision would occur, deliberately failed to do so. There was therefore no evidence of willful or wanton injury which entitled the plaintiff to a submission of this question to the jury, [at 299-300]

The language of the Staub case was quoted with approval by our present Supreme Court in Egan v. Erie R. Co., 29 N. J. 243 (1959), wherein the court affirmed the granting of a summary judgment in favor of defendant railroad where an infant plaintiff: attempted to board a moving freight train operated by defendant and was severely injured when she slipped and fell under the wheels of one of the cars. The evidence there established that while none of the members of the train crew observed the infant plaintiff prior to the accident, the employees of defendant had prior knowledge that children were accustomed to playing upon the tracks in the vicinity where the accident occurred and had on occasions chased them. Plaintiff there argued, as does plaintiff here, in effect, that defendant had actual notice of the presence of the infant plaintiff and omitted to take the necessary precaution of having watchmen on the property and, therefore, was guilty of willful and wanton negligence. In rejecting this argument, the court stated:

The claim of wanton negligence in the defendant’s failure to have watchmen present at the scene at best supports an allegation of ordinary negligence. In essence, plaintiffs’ claim is based upon the railroad’s failure to take precautions against reasonably foreseeable harm to children coming upon the right of way after it had notice that children did so trespass.
“To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.” Staub v. Public Service Railway Co., 97 N. J. L. 297, 300 (E. & A. 1922).
See also King v. Patrylow, 15 N. J. Super. 429 (App. Div. 1951). Even ignoring the fact that in these circumstances a railroad is ordinarily under no duty to provide watchmen, Kaproli v. Central R. of New Jersey [105 N. J. L. 225], supra, its failure to do so falls far short of the standard required for a finding of willful or wanton conduct. Willfulness and wantonness are conclusions to be drawn from a given set of facts and circumstances. When in the light of common experience and judicial precedents the facts and circumstances alleged clearly do not constitute such conduct, the more fact that plaintiffs characterize them as willful or wanton is not sufficient to create a triable issue. Summary judgment was properly entered for the defendant, [at 254-255.]

Accordingly, we hold that the trial court erred in submitting the question of willful and wanton negligence on the part of the railroad to the jury and in denying the railroad’s motion, for judgment with respect to that charge as set forth in the amended complaint.

The charge of willful and wanton negligence against the water company is also two-pronged. Pirst, plaintiff contends that the water company was desultory in its reaction to complaints of the dangers created by the railroad’s trains going through the crossing without sounding their horns. Secondly, plaintiff contends that the water company created the parking conditions partially obstructing the view at a certain point by not permitting construction workers to park on its property. We see no merit whatsoever in these charges. The property on which the cars were parked was not owned by the water company but by the railroad. It was not under the control of the water company. While nine months after the accident the Public Utility Commission directed the railroad to erect a fence to prevent parking on the railroad right-of-way, and the water company erected the fence with the railroad’s permission, that does not establish that the water company had the right or the duty to bar parking on the railroad right-of-way at the time of the accident. It was also established that the water company, upon receipt of a complaint or complaints .regarding the crossing (apparently three in a six-year period), communicated with the railroad to discuss the lack of warnings given by the trains as they neared the Polhemus Lane crossing. The attempt to correct this condition by the laboratory supervisor of the water company, Lewis, was unsuccessful, and he, in turn, referred the matter to the plant superintendent of the water company, Caden. Caden also attempted to communicate with the railroad through one of its representatives, who advised him that the matter was not the responsibility of the water company. Plaintiff’s argument, that since the water company failed to do anything further, specifically in not going to the Public Utility Commission to force such action by the railroad, it was guilty of willful and wanton negligence, is not persuasive. The evidence presented, including the most favorable inferences that can reasonably be drawn therefrom, while supportive of a negligence charge against the water company, certainly is not of such character as to support a charge of willful or wanton negligence on the part of the water company within the principles enunciated by our courts as discussed above.

Accordingly, we hold that the trial court also erred in submitting to the jury the question of the alleged willful and wanton negligence of the water company and in denying the latter’s motion for judgment with respect to that charge as set forth in the amended complaint.

The railroad and the water company both contend also that Acken was guilty of contributory negligence as a matter of law, and that the trial court erred, therefore, in failing to enter judgment in their favor.

It is well established that the mere occurrence of the collision does not indicate per se negligent conduct on the part of decedent. Ackerley v. Pennsylvania R. Co., 130 N. J. L. 292, 296 (E. & A. 194.3). “[Contributory negligence is an affirmative defense to be proved; and ordinarily the issue is one for the fact-finding tribunal.” Battalglia v. Norton, 16 N. J. 171, 179 (1954). Only in the clearest case of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law. Pangborn v. Central R. Co. of N. J., 18 N. J. 84, 93 (1955). Where different minds may reasonably come to different conclusions as to the facts, or as to the inferences derivable from the facts, whether controverted or not, the question is one for the triers of fact. Shutka v. Pennsylvania R. Co., 74 N. J. Super. 381, 389 (App. Div. 1962), certif. den. 38 N. J. 183 (1962), To justify a directed verdict on such grounds, the contributory fault of plaintiff must appear clearly and conclusively as a fact or as a necessary and ex-elusive inference that would be drawn by all reasonable persons exercising fair and impartial judgment. Mellon v.Pennsylvania-Reading Seashore Lines, 7 N. J. 415, 422 (1951).

When- the facts and circumstances here involved are considered in the' light of the foregoing principles, we are satisfied that the issue of Acken’s contributory negligence was properly submitted to the jury by the trial court below. The jury could reasonably have found from the evidence and the favorable ■ inferences which might reasonably have been drawn therefrom; that the pick-up truck parked near the tracks interfered with the vision of both Acken and the railroad’s engineer, and that even though Acken had stopped before crossing the track (a reasonable inference to be drawn from the testimony of his fellow employees that his habit and custom was to stop at the crossing), he could not see the train approaching because his vision was blocked by the pick-up truck, and he could not hear the approach of the train (which admittedly was not sounding its horn) because the truck windows were rolled up, the heater was operating, and there was some conversation between himself and Gifford. The jury could reasonably have inferred from all of the eviden'cé that Acken exercised that degree of care and precaution which a reasonably prudent person would exercise under like circumstances. See George Siegler v. Norton, 8 N. J. 374, 383 (1952).

Accordingly, we hold that- the trial court properly denied the motions of the railroad and the water company for judgment based on the alleged’ contributory negligence of Acken as a matter of law and properly submitted that issue to the jury for their consideration.

Since we are of the view that the trial judge erred, with respect to the railroad, in submitting to the jury the issue of whether Polhemus Lane' was a public or a private road and in instructing the jury as to the statutory regulations and the railroad’s operating rules applicable only to public crossings, and in submitting to the jury the question of willful and wanton negligence on the part of both the railroad and the water company, and in denying defendants’ motions for judgment with respect to that charge, we hold that the judgments obtained by plaintiff against both the railroad and the water company must be reversed and the matter remanded for trial. We direct that on remand the trial court enter judgment in favor of the railroad and the water company on those counts of the amended complaint charging willful and wanton negligence with respect to each, and that the matter be retried against the railroad and the water company on the issues of their negligence and of decedent’s contributory negligence.

In view of the foregoing holding, it is unnecessary to decide the several other issues raised by the railroad and the water company or to consider plaintiff’s contention raised on cross-appeal that she is entitled to punitive damages.

Reversed and remanded.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION FOR CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR SOLID WASTE COLLECTION BY NELSON W. MASON, SR.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1975
    Decided May 27, 1975.

      Before Judges Carton, Craine and Kole.

      Mr. Vincent J. Dotoli argued the cause for appellant Solid Waste Industry Council of New Jersey.

      Ms. Carla. Vivian Bello, Deputy Attorney General, argued the causé for respondent New Jersey Board of Public Utility Commissioners (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).

      Messrs. Ruprecht & Graham filed statement in lieu of brief for amicus curiae, M. Burroughs & Sons, Inc.

      Messrs. Ruprecht & Graham filed statement in lieu of brief for amicus curiae, O’Hara Sanitation Company, Inc.
   The opinion of the court was .delivered by

Carton, P. J. A. D.

Solid Waste Industry Council, an association of solid waste collectors, appeals from a determination of the Board of Public Utility Commissioners (Board) granting a certificate of public convenience and necessity for solid waste collection. It raises a number of substantive and procedural questions relating to the Solid Waste Utility Control Act of 1970, N. J. S. A. 48:13A — 1 et seq.

In 1973 Helson W. Mason, Sr. made an application for a certificate of public convenience and necessity to operate a solid waste collection business in Cumberland County. A hearing was conducted on the application by a hearing examiner after publication in a Bridgeton newspaper of a notice of such hearing. At the hearing the Solid Waste Industry Council (SWIC) and SCA Services, Inc. (SCA), an interstate holding company with solid waste collection operations in New Jersey, made motions to intervene. Both motions were denied but the hearing examiner permitted counsel for SWIC to make a statement as an objector at the hearing. A representative of SCA also spoke as an objector, claiming that two existing concerns had the capacity to provide adequate service in Cumberland County. He also questioned Mason’s qualifications to provide service adequate for the public needs. SCA did not appeal.

The hearing examiner’s written report to the Board noted that SWIC'and SCA were denied status as intervenors. The hearing examiner recommended the issuance of the certificate to Mason. He found that Mason’s experience and on-the-job training were sufficient for him to serve adequately the number and type of customers which the record indicated; that his application and proposed tariff showed his customers would pay a reasonable price for service rendered, resulting in a sufficient income to cover operating expenses; that the equipment to be used by him was adequate to engage reasonably and efficiently in a solid waste collection operation of the type and size indicated by the record, and that the objectors had failed to show he was incapable of adequately operating this collection service in Cumberland County. The Board adopted the hearing examiner’s report and recommendations.

It appears that prior to the issuance of the order the objectors had filed timely notices of exception to the hearing examiner’s report and recommendations, but that these notices were inadvertently not brought to the Board’s attenr tion and the order was issued without reviewing the objectors’ exceptions. The Board then decided to treat the exceptions as a motion for reconsideration and, after reviewing the exceptions and the record as a whole, the Board issued its decision denying the motion for reconsideration. SWIC thereupon filed its notice of appeal.

SWIC advances two major objections to the Board determination here appealed from. One is procedural. SWIC contends that it was improperly denied intervenor status at the hearing. The second is substantive. SWIC contends that a finding that existing service is inadequate, a determination not made in this case, is a prerequisite to the granting of a certificate of public convenience and necessity.

These and other questions raised by SWIC must be considered against the background of the relevant statutes and administrative rules.

The Solid Waste Utility Control Act, N. J. 8. A. 48:13A-1 et seq., was adopted in 1970 for the purpose of regulating the solid waste collection and disposal industry. To that end the industry was designated a public utility and subjected to the regulatory authority of the Board of Public Utility Commissioners. The Board was vested with a full range of powers to perform its regulatory duties. It was empowered to make all necessary rules, regulations and administrative orders for the regulation of rates and the utility aspects of the industry, N. J. S. A. 48:13A-4; to establish franchise areas, N. J. 8. A. 48:13A-5; to issue certificates of public convenience and necessity to persons found qualified, N. J. 8. A. 4S :13A-6, and to revoke such certificates under specified conditions, N. J. 8. A. 48:13A-9.

In addition, N. J. 8. A. 48:13A-10 prohibits the monopolization or attempted monopolization of the solid waste industry.

The Board has rule-making powers under N. J. 8. A. 48:2-12 generally, and under N. J. 8. A. 48:13A-4 specifically, for the solid waste industry. This authority has been exercised through the adoption of a series of rules concerning the form and procedure for public hearings, which rules are published in the New Jersey Administrative Code. Under N. J. A. C. 14:3-10.6 the Board may hold a hearing to grant a certificate of public convenience and necessity and must hold a hearing before denying an application. Hearings, when held, are open to the public (N. J. A. C. 14:1-10.2) and public notice may be required by the Board (N. J. A. G. 14:l-10.1(d)). Notice was required, and given by Mason, in this case.

Parties to the proceedings are classified as petitioners, respondents or intervenors (N. J. A. G. 14:1-4.2). Persons opposing petitions are classified as “objectors” unless granted permission to intervene (N. J. A. G. 14:1-4.3). An objector is allowed only to state his position for the record, while an intervenor is a full participant in the hearing, with the right to introduce evidence and conduct cross-examination. One seeking intervenor status must show that he will be substantially and specifically affected by the proceeding (N. J. A. O. 14:1-9.2). SWIC’s motion for intervention was denied on the ground that it failed to make such showing.

The issue is thus posed as to the extent to which potential competitors of an applicant for a certificate of public convenience and necessity have the right to be heard before the Board. This question, of course, is not to be confused with the right to seek judicial review of administrative determinations. That right inheres in both direct parties to the proceedings and in all persons directly affected or aggrieved by the administrative action. Elizabeth Federal S. & L. Ass’n v. Howell, 24 N. J. 488, 499-504 (1957).

The Elizabeth Federal case, involving an application by a savings and loan association to establish a branch office, is factually similar to the present case and appears to be dispositive. There competitors of the applicant challenged the decision of the Commissioner of Banking and Insurance that they would not be granted status as full participants to the proceeding. The Supreme Court held that a competitor had no constitutional right to such participation and that the right, if it existed, must be established by statute. The court found no statutory basis for the claim. The court further noted that where there exists administrative discretion to make ex parte disposition of applications rather than conduct a full hearing, the position of the objector is further weakened. In the present case the authority to grant applications ex parte without a full hearing is embodied in N. J. A. C. 14:3-10.6. SWIC has not produced any statutory authority granting mere competitors the right to intervene in certification proceedings.

Nor are we persuaded that the Board erred in finding that SWIC failed to make a sufficient showing, under the Board’s regulations, that it was entitled to intervenor status. N. J. A. G. 14:1-9.2 limits intervention to persons showing that they may be “substantially and specifically” affected by the proceedings. SWIC is simply an organization of solid waste collectors. As distinguished from its members, it has no direct or specific interest in the proceedings. Any interest it may have appears to be. a general one and derived from that of :the individual members.

Moreover, there is nothing in the present record which would support a conclusion that any SWIG member has a substantial or specific interest in the Mason application. Quite the contrary. SWIC conceded on its motion to intervene that it would be affected only if the applicant were not restricted to Cumberland County. Parenthetically, we note that, depending on the particular circumstances of the case, a concern already providing service to a proposed service area, or planning to do so, might well be in a position to make the requisite showing of interest under N. J. A. G. 14:1-9.2.

II

Appellant argues that an applicant must show, and the Board must find, that existing service is inadequate before granting a certificate of public convenience and necessity. The Board takes the position that its fact-finding duties are limited, under N. J. S. A. 48 .T3A-6, to determining whether an applicant is sufficiently qualified and financially responsible to enter the industry, and that it has no concern with the adequacy or inadequacy of existing service. The Board notes the legislative purpose of encouraging competition in the industry as opposed to the traditional monopolistic scheme found in utility regulation. It contends that to require a showing of the inadequacy of existing service would foster the very monopolistic tendencies the Legislature sought to remedy.

The adequacy of existing service levels is ordinarily a factor to be considered by public utility regulatory agencies in the granting of certificates of public convenience and necessity. The issue is the extent to which the anti-monopoly provisions of the Solid Waste Utility Control Act, which represent a new element in a regulatory field more aecustomed to the limiting of competition, reduces the weight to be given to this factor. We conclude that it was not the Legislature’s intention that the Board disregard altogether the adequacy of service factor in its certification determination.

As noted above, the Legislature, in determining to regulate the solid waste industry, denominated the industry a public utility and subjected it to the control of the same agency which regulates other utilities. Thus the regulation of the solid waste industry was placed within the statutory scheme of general utility regulation. It seems clear that the Legislature intended that the .Board should apply to this industry the same general standards, practices and procedures applicable to the regulation of other utilities, to the extent practicable and except where the statute clearly prescribes otherwise.

The phrase “public convenience and necessity,” although not defined in the statute, is one commonly employed in public utility legislation and expresses a generally recognized concept. It is a term that has generally been given a broad meaning, permitting public utility boards to consider any and all factors related to the public interest. Among the factors considered proper for consideration are the adequacy of existing service levels and the impact of the proposed service on present service. In re Greenville Bus Co., 17 N. J. 131 (1954). But, as Justice Jacobs noted in Greenville-.

The paramount consideration is the public interest, and any incidental disadvantages are simply entitled to be weighed in the balance against the ultimate public advantages, [at 14S]

The concept of public necessity is itself flexible. This court has observed, in In re Petition of Public Service, 103 N. J. Super. 505, 510-511 (App. Div. 1968), that “necessity need not be shown in the sense of essential or absolutely indispensable,” and that “[i]t is sufficient if the proposed service be found to be reasonably requisite to serve the public convenience.”

In such a balancing process the Board can consider the adequacy of existing service levels along with the desirability of competition in making a determination as to certification. However, we do not interpret the legislative intention as imposing a burden on the applicant to demonstrate the inadequacy of existing service or on the Board to make a specific finding to that effect.

We see no necessity, on the record in this case, to remand for further proof on this issue. A finding of adequacy of service is not, of itself, determinative. Nor was there evidence before the Board in this case that the issuance of a certificate to Mason would result in ruinous competition which would impair the ability of others to provide service. The applicant served only 90 customers, although he hoped to expand his business. The representation that the two subsidiary companies of SOA had the capability of servicing the area is not material. Such potential does not constitute existing service. And, if the question is protection against destructive competition, the protection is to be afforded a service that is being given. West Shore R. R. Co. v. Bd. of Public Utility Comm’rs, 13 N. J. Misc. 180, 182 (S. Ct. 1935), aff’d o. b. 116 N. J. L. 191 (E. & A. 1936). However, this question is not before us because SCA, even if it is operating in the area, is not an appellant. Further, we see no possible prejudice to it by the issuance of the Mason certificate.

As to the other factors involved, we are satisfied there was sufficient evidence of Mason’s experience and financial responsibility to support the finding that he was qualified under the statute.

Appellant’s claim that the hearing officer was unqualified is without merit. The record demonstrates that he met the statutory requirements. Nor do we see any evidence of bias or prejudice on the part of the hearer to render him disqualified in this proceeding.

The objector’s argument that the Board should have rescinded its order in order to have the exceptions considered before issuing the order is frivolous. The Board had considered the arguments and its written brief in support of its motion to intervene. These arguments were substantially identical to those raised in the exceptions. The Board reviewed the entire record, together with appellant’s exceptions, before denying the motion for reconsideration. Although the procedure adopted may not have been in accordance with the best practice, we see no valid basis for reversal as no prejudice has been shown. See Winston v. So. Plainfield Bd. of Ed., 125 N. J. Super. 131, 139-140 (App. Div. 1973), aff’d 64 N. J. 582 (1974).

Nor do we perceive any merit to appellant’s additional contention that the Board’s application of the statute denied the solid waste industry equal protection under the law. In support of this contention SWIC attempts to compare the qualifications of Mason and that of one McGarry, who applied for a public mover certificate in another proceeding before the Board. The simple answer is that there were significant factual differences between McGarry’s application in that proceeding and that of Mason in the present one, and also that there are significant differences between the solid waste utilities and other utilities.

Finally, we deem it inappropriate to rule, on this record, on the additional issues raised by SWIC concerning the validity of the administrative regulations promulgated by the Board and the guidelines prescribed therein. Determination of the propriety of the issuance of the certificate to Mason and SWIC’s objection is unrelated to these general complaints. If SWIC desires to pursue a challenge to any of these administrative procedures, it is at liberty to do so in a separate action brought for that purpose.

Affirmed.


author: Per Curiam.

text:
    IN THE MATTER OF THE ESTATE OF JERRY M. MARKS, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1975
    Decided May 27, 1975.

      Before Judges Collester, Lora and Handler.

      Mr. Saul J. Zucker argued the cause for appellant, Russell Marks (Messrs. Zucker, Lowenstein, Gurny, Facher and Zucker, attorneys).

      Mr. Ernest Prupis argued the cause for respondent, Sylvia Marks (Messrs. Weltchek, Prupis & Ritz, attorneys).
   Per Curiam.

The judgment of the Hudson County Court, Probate Division, is affirmed substantially for the reasons expressed in the opinion of Judge Gaulkin.

We also conclude that the trial court properly denied plaintiff’s application for counsel fees to be assessed against $23,008.12 held in escrow pending the court’s decision. The action brought by plaintiff was solely to advance his own interests. The money held in escrow was not a fund in court within contemplation of R. 4:42-9 (a) (2). See Sunset Beach Amusement Corp. v. Belk, 33 N. J. 162 (1960); Shilowitz v. Shilowitz, 115 N. J. Super. 165, 188 (Ch. Div. 1971), mod. on other grounds, 119 N. J. Super. 311 (App. Div. 1972), certif. den. 62 N. J. 72 (1972).

Affirmed.


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

text:
    MARY ANN PELLEGRINO, PLAINTIFF-APPELLANT, v. ALBERT J. PELLEGRINO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 12, 1975
    Decided June 9, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Messrs. McDonough, Murray & Korn, attorneys for appellant.

      Messrs. Ryan, Foster & Garofalo, attorneys for respondent (Mr. Robert C. Garofalo, on the brief).
   The opinion of the court was delivered by

Leonard, P. J. A. D.

The parties were married on September 10, 1955. On October 19, 1972 plaintiff wife filed a complaint for divorce seeking, among other things, equitable distribution of all real and personal property. Although the matter was originally contested, defendant withdrew his opposition thereto and plaintiff submitted uncontested proof of her divorce action. Additionally, the parties agreed upon an equitable distribution of their property, with the exception of plaintiff’s interest, if any, in a pension plan held by defendant as a fireman in the Town of Bloomfield. That issue, by the terms of the judgment of divorce dated July 27, 1973, was “reserved for further hearing.”

On April 4, 1973 a hearing was held at which the parties stipulated that defendant (presently 45 years of age) was employed as a fireman in Bloomfield from 1962 to the date of the hearing. Both he and his employer contributed to a pension plan. Thereafter, with the consent of the parties, defendant obtained and filed a letter from the Department of Treasury, Division of Pensions, which indicated that as of October 1972 (when the complaint herein was filed) defendant’s pension contribution was $5917.26 and that “These monies are returnable to the member should he resign or be dismissed prior to qualifying for a benefit.”

The trial court determined that plaintiff was not entitled to participate in the funds contributed by defendant because there had been “no vesting” thereof in him since he had not either resigned or been dismissed. An appropriate judgment was entered and plaintiff appeals.

On this appeal, plaintiff, pursuant to N. J. 8. A. 2A :34 — 23, seeks an equitable distribution of the sum of $5917.26 contributed by defendant to the pension plan. She asserts that this sum was “legally and beneficially acquired by them or either of them during the marriage.”

At the outset we specifically note that plaintiff seeks an equitable distribution of defendant’s contribution to the pension plan. She does not seek a distribution of the ultimate sum to be paid to defendant upon retirement.

N. J. 8. A. 43 :16A-1 et seq. (Police and Firemen’s Retirement System) governs all of the rights and obligations of municipal firemen with respect to contributions, retirement and pensions. The following statutory definitions and distinctions are material to the issue herein involved:

“Aggregate contributions” shall mean the sum of all the amounts, deducted from the compensation of a member or contributed by him or on his behalf, standing to the credit of his individual account in the annuity savings fund. [A. J. S. A. 48:16A-1(10)]
“Annuity” shall mean payments for life derived from the aggregate contributions of a member. [(11)]
“Pension” shall mean payments for life derived from contributions by the employer. [(12)]
“Retirement allowance” shall mean the pension plus the annuity. [(13)]

In the event any member fireman resigns or is dismissed from his position before retirement he shall be entitled to the repayment of his “aggregate contribution.” If he dies before withdrawing the same, then it shall be paid to his designated beneficiary. N. J. 8. A. 43 :16A-2 and 16A-11.

Additionally, a member may retire in accordance with any of the following plans: “service” — voluntary at age 55 years and mandatory at age 65 years (IV. J. S. A. 43:16A — 5); “ordinary disability” — under 55 years with 5 years of creditable service (N. J. S. A. 43: 16A-6); “accidental disability” (IV. J. S. A. 43:16A-7); “special” — after 25 years of creditable service but before attaining the age of 55 years (IV. J. 8. A. 43:16A-11.1), and “deferred” — after 15 years of creditable service but before reaching the age of 55 years (IV. J. 8. A. 43 :16A-11.2). In each of the above instances the member, upon retirement, receives a service “retirement allowance” which includes “an annuity which shall be the actuarial equivalent of his aggregate contributions” (emphasis supplied) plus his pension which varies in amount in each of the above situations.

Further, upon the death of a member who has retired under any of the above plans, provision is made for the payment of a specified sum to the deceased member’s beneficiary which is based in part upon the contributions made by him. Likewise, if a member dies during active service, there is paid to his beneficiary or to his widow, children or parent, as the case may be, a sum which again is made up in part by all or a portion of his contributions. IV. J. 8. A. 43 :16A-9 and 10.

Under the above cited statute defendant (or his beneficiary) has the absolute right to the repayment of his contributions either directly or as part of his retirement benefits (or as a death benefit). Thus, since defendant has a present fixed right to the future enjoyment of the contributions paid by him, even though the date of that enjoyment be uncertain, his interest therein is vested. Cf. Montclair Nat’l Bank v. Seton Hall College of Med., 96 N. J. Super. 428, 435 (App. Div.), certif. den. 50 N. J. 301 (1967). As to the distinction between an employee’s interest in his retirement allowance and in the contributions made by him, see Phillipson v. Bd. of Admin., 3 Cal. 3d 32, 89 Cal. Rptr. 61, 473 P. 2d 765, 770, n. 8 (Sup. Ct. 1970).

We are mindful of our Supreme Court’s suggestion that the concept of “vesting” should probably find no significant place in the developing law of equitable distribution and that the customary uses of that concept are not relevant to the question of effecting such distribution. Stern v. Stern, 66 N. J. 340, 348 (1975). As the court said therein, “Our statute requires, in order that property be available for distribution incident to a divorce, that it shall have been acquired during marriage. There is no reference to vesting.” Id.

In approaching the problem in this manner, we first note that Painter v. Painter, 65 N. J. 196, 215-217 (1974) mandates that the word “acquired,” as used in N. J. S. A. 2A:34-23, must be construed in a “comprehensive sense.” So viewed, we conclude that the $5917.26 contributed by defendant from his earnings during the marriage to plaintiff (up until the date of the filing of the complaint herein) is property “acquired” during the marriage and subject to equitable distribution under the statute. Cf. DiTolvo v. DiTolvo, 131 N. J. Super. 72 (App. Div. 1974).

Tucker v. Tucker, 121 N. J. Super. 539 (Ch. Div. 1972), relied upon by the trial judge, is factually inapposite. There the husband made no contributions to the private employer’s incentive compensation and pension plan and consequently had no right of withdrawal before retirement.

In determining that the $5917.26 contributed by defendant is subject to equitable distribution, we are not directing an actual apportionment of that specific fund. Rather the amount thereof must be examined and valued as one element to be included in determining the entire assets to be allocated between the parties. In so including it the trial judge will fix such percentage or portion thereof which, under the existing circumstances, is equitable and just. Cf. Stern v. Stern, supra, 66 N. J. at 347.

Accordingly, that portion of the judgment entered by the trial judge which determined that plaintiff is not entitled to participate in the sum of $5917.26 contributed by defendant to the Police and Firemen’s Retirement System is reversed and the matter is remanded for a hearing in accordance herewith.

Reversed and remanded. We do not retain jurisdiction.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STEVEN ABLEMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 3, 1974
    Decided June 10, 1975.

      Before Judges Collester, Lora and Handler.

      Mr. Steven H. Gifis argued the cause for appellant.

      Mr. Solomon Rosengarten, Deputy Attorney General argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

On April 9, 1973 defendant pleaded guilty to a federal indictment which charged him and seven others with conspiracy to distribute a Schedule I controlled dangerous substance (hashish), in violation of federal law, and with possession with intent to distribute hashish. Defendant was sentenced as a young adult offender to five years’ probation on each count to run concurrently with each other.

Defendant and several codefendants were indicted by the Middlesex County grand jury in a fourcount indictment. Count I charged defendant with unlawful possession of a controlled dangerous substance, to wit, hashish, in violation of N. J. 8. A. 24:21-20, subd. a (3). Count II charged him with unlawful possession of the same substance with intent to distribute, in violation of N. J. 8. A. 24:21-19, subd. a(l). Count III alleged unlawful distribution of the same substance, in violation of N. J. 8. A. 24:21-19, subd. a(l). Count IV charged conspiracy to distribute a controlled dangerous substance and alleged that defendant arranged for the distribution of and distributed 50 pounds of hashish to Jerry Hochman, a federal undercover agent, contrary to the provisions of N. J. 8. A. 2A: 98-1 and N. J. 8. A. 2A:98-2.

On October 19, 1973 defendant moved to dismiss the indictment on the ground that the state prosecution was barred by N. J. 8. A. 24:21-25, which provides in part:

In any case where a violation of this act [Uniform Drug Act] is a violation of a Federal law or the law of any state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.

Defendant argued that his conviction in the United States District Court for the Southern District of New York, for conspiracy to distribute and to possess with intent to distribute hashish and for possession with intent to distribute hashish, barred prosecution in New Jersey under the four-count indictment. The trial judge ruled that the statute barred counts I, II and IV of the Middlesex County Indictment, but that count III, relating to the charge of distribution, was not barred by the provisions of N. J. 8. A. 24: 21-25. The parties stipulated the essential facts and, based upon that stipulation, defendant was found guilty of distribution.

We are in accord with the decision of Judge Stroumtsos, which is reported in State v. Krell, 125 N. J. Super. 457 (Law Div. 1973), that N. J. 8. A. 24:21-25 does not bar defendant’s prosecution and conviction for the crime of distribution of a controlled dangerous substance. Defendant was not charged under federal law for the act of distribution and hence the federal convictions are not a barrier under the statute against the New Jersey prosecution. As pointed out by the trial judge, the term “same act”, as used in § 25 of the Uniform Narcotic Drug Act, refers generally to the acts expressly prohibited by the four statutory sections preceding § 25. Since defendant had not been charged, tried, convicted or acquitted in federal court for distribution of hashish in New Jersey, an act specifically prohibited by N. J. S. A. 24:21 — 19, the trial judge ruled correctly that § 25 did not deprive the State of its right to prosecute defendants for distribution in New Jersey.

Defendant also argues that double jeopardy standards are implicit under N. J. S. A. 24:21-25, and on the grounds of double jeopardy the State is precluded from bringing a prosecution for possession with intent to distribute the same, or a portion of the same, controlled dangerous substance which was the subject of the federal convictions.

Under any, or all, of the tests utilized by our courts for determining the pertinency of double jeopardy, the subsequent prosecution of this defendant for distribution of hashish in New Jersey would not be barred by the prior federal conviction of possession with intent to distribute. According to the stipulated facts, defendant sold or distributed 50 pounds of hashish in New Jersey; he had picked up this hashish in New York, and it was a part of a much larger supply, approximately 500 pounds, which defendant and some of the other codefendants had agreed to obtain or “pick up” in New York City from still other codefendants. These circumstances and this sequence of events do not demonstrate that the respective offenses of possession with intent to distribute and distribution would merge or otherwise result in mutually exclusive prosecutions under double jeopardy standards. Cf. State v. Gregory, 66 N. J. 510 (1975); compare also, State v. Ruiz, 127 N. J. Super. 350 (App. Div. 1974), aff’d 67 N. J.-- (1975); State v. Williams, 129 N. J. Super. 84, 87 (App. Div. 1974), rev’d 67 N. J. -- (1975).

Defendant claims that, even apart from N. J. S. A. 24:21-25 and principles of double jeopardy, fundamental fairness bars his prosecution in New Jersey following federal prosecution for violations stemming from the same criminal transaction. Defendant’s argument is predicated on constitutional grounds. It was said in State v. Currie, 41 N. J. 531, 536 (1964), that the value of the constitutional safeguard against double jeopardy is that “It justly assures that the State with its great resources will not be permitted to harass and oppress the individual by multiple prosecution or punishment for the same offense.” Accord, Green v. U. S., 355 U. S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957).

Here, the two prosecutions did not involve the same offense. Moreover, the prosecution for the possession counts was brought in the New York Federal District Court. No charge was brought with respect to distribution as such. It is by no means clear that a prosecution for the distribution of the hashish in New Jersey, if regarded as a distinct criminal act in addition to those which occurred in New York involving conspiracy and possession, could have been properly brought in the New York Federal District Court. Cf. United States v. Malfi, 264 F. 2d 147, 152 (3 Cir. 1959). Thus, it cannot be said that the State is harassing defendant or fomenting a multiplicity of suits by maintaining an independent state court prosecution for distribution. Moreover, apart from constitutional considerations, under the more flexible and liberal judicial administrative standards of procedural fairness, it cannot be said that the state prosecution for distribution was unreasonably or improperly pursued. State v. Gregory, supra, is clearly distinguishable.

A final contention is that the sentence to a term of three months in the Middlesex County Workhouse is manifestly excessive. We are satisfied that it is not.

Affirmed.


author: Botter, J. A. D.

text:
    LOUIS D. ARUTA AND RUTH M. ARUTA, PLAINTIFFS-APPELLANTS, v. JULIUS STEFAN KELLER, ALSO KNOWN AS STEFAN KELLER, ALSO KNOWN AS JULIUS GEORGE STEFAN KELLER AND FILIGRANBAU STEFAN KELLER, K. G., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted May 20, 1975
    Decided June 11, 1975.

      Before Judges Matthews, Fritz and Botter.

      Messrs. O’Brien, Devlin & Shaw, attorneys for appellants (Mr. John W. Devlin, on the brief).

      Messrs. Schneider, Schneider & Behr, attorneys for respondents (Mr. C. Conrad Schneider, on the brief).
   The opinion of the court was delivered by

Botter, J. A. D.

Plaintiffs appeal from a summary judgment dismissing their amended complaint on the ground that their claims are barred by the statute of limitations.

Plaintiffs’ amended complaint alleges that on March 9, 1970 plaintiff Louis D. Aruta (Aruta) was injured during the course of his employment by an automatic round steel rod fabricating machine manufactured by defendants Filigranbau Stefan Keller K. Q-. and Julius Stefan Keller, also known as Stefan Keller, also known as Julius George Stefan Keller. The complaint asserts claims for damages for personal injuries to Aruta and loss of consortium for his wife. Breach of warranty, negligence and strict liability are the asserted grounds for liability.

On March 9, 1972 plaintiff filed a complaint in the Superior Court, Law Division, against George [Georg] Keller and X-Trager Keller K. G. asserting the same claims. Plaintiffs’ attorneys had been advised by the insurance company of Aruta’s employer that the machine in question had been purchased “directly from the manufacturer, X-Trager Keller Company, Munich, Germany.” By their answer said defendants denied that they had manufactured and sold the machine to Aruta’s employer.

During the course of discovery plaintiffs learned that they had named and served the wrong parties. On motion, leave was granted to plaintiffs to amend their complaint substituting the proper parties, and the discovery period was enlarged. The original defendants were released from the case on their cross-motion for summary judgment. In February 1973 plaintiffs’ amended complaint was served by mail upon the present defendants.

In 1960 Aruta’s employer contracted with the present defendants for the manufacture and sale of the machine. In that 'written agreement the individual defendant was named as “Julius Stefan Keller, also known as Stefan Keller, also known as Julius Georg Stefan Keller.” The machine was used until sometime ^in 1972 when it was replaced by a machine manufactured by the original defendant, X-Trager Keller K. G.

Discovery further disclosed that the machine on which plaintiff was injured was designed by defendant Julius Georg Stefan Keller and a Mr. Fischer. Defendant Julius Georg Stefan Keller is the brother of the original defendant, Georg Keller. In answers to interrogatories the present defendants denied that they had received knowledge of the original action in March or April 1972, but stated that they first became aware of the action when they received the summons in early 1973 and were “then informed by Georg Keller that the man injured had not been hurt on his machine.” Defendants assert that the two firms had no relationship until 1973.

The trial judge dismissed the action on the ground that the amendment “brings in a completely different defendant.” The trial judge noted that the amendment went beyond a mere correction of the name of a proper party who had been served within time. The trial judge also found merit in defendants’ contentions that they were prejudiced by the delay since the machine is no longer available for inspection, apparently having been disassembled when replaced by the new machine in 1972. In his letter opinion of April 1974, however, the trial judge neither cited nor discussed the effect of Farrell v. Votator Div. of Chematron Corp., 62 N. J. 111 (1973).

The Farrell case dealt with a similar claim brought against the maufacturer and seller of a machine which caused injury to a factory worker. It was alleged that the machine was not equipped with a suitable guard. Not knowing the name of the manufacturer, and being close to the expiration of the two-year limitation period, a complaint was filed which included “John Doe and/or John Doe, Inc.” as the fictitious name of the alleged “assembler, supplier or seller” of the machine. 62 N. J. at 113. Joinder of the properly named defendant after the two-year period was held timely. The court said:

When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play. [62 N. J. at 115]

It has been “repeatedly recognized that a limitation statute such as N. J. S. A. 2A:14-2, which provides without further definition that the proceeding shall be commenced within 2 years after the cause of action 'shall have accrued/ is subject to later judicial interpretation and application even though the interpretation and application have the effect of lengthening the defendant’s jeopardy.” Id. at 121. We recognize that in holding that the cause of action was not barred Farrell noted that the cause of action was not changed nor was a new party added by the amendment. The amendment simply identified Votator as the true name of the party theretofore named fictitiously. Id. at 120.

An action is commenced by the filing of a complaint. B. 4:2-2. There is no question that this action, intended to assert this very claim against the manufacturer of the machine, was commenced, literally, within two years after its accrual as specified in N. J. S. A. 2A:14-2. Nevertheless, the mere fact that a complaint has been filed within the period of limitations has not prevented the bar of the statute from applying to certain parties not named in the original pleading. Compare McGlone v. Corbi, 59 N. J. 86, 94-97 (1971), with Lawlor v. Cloverleaf Memorial Park, Inc., 56 N. J. 326, 339-345 (1970).

There is express provision in the Buies of Court for determining when amendments relate back to the filing of the original pleading, for tile-limitation purposes. B. 4:9-3. The rule provides, generally, that a claim or defense asserted in the amended pleading relates back to the date of the original pleading if it arose out of the occurrence set forth or attempted to be set forth in the original pleading. By the 1969 revision of the Bules a second sentence was added to B. 4:9-3 allowing a party to be brought in by amendment if “within the period provided by law for commencing the action against him” the party had received “such notice of the institution of the action that he will not be prejudiced” in defending, and if the new party “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” This rule change added verbatim the 1966 amendment to the comparable federal rule. Fed. R. Civ. P. 15(c). See 6 Wright and Miller, Federal Practice and Procedure (1971), § 1496; cf. Annotation, “Change in party statute of limitations has run,” 8 A. L. R. 2d 6 (1949).

For the purposes of this appeal we accept as a fact that Georg Keller did not discuss plaintiffs’ claim with his brother Julius Georg Stefan Keller until after the proper parties had been served. It was then, according to Julius Georg Stefan Keller’s answers to interrogatories, that his brother Georg told him that “the man injured had not been hurt on” Georg’s machine. Since the Keller brothers are in Germany their depositions have not been taken, nor have they testified in court. But cf. Lopez v. Swyer, 62 N. J. 267, 275 (1973), where, in holding that the trial judge should determine whether the limitations period should be extended for a claimant who has not discovered that he has an actionable claim until after the statute has run, the court stated that the issue generally “will not be resolved on affidavits or depositions since demeanor may be an important factor where credibility is significant.”

To the extent that B. 4:9-3 suggests that a new party cannot be added in the circumstances of the case at hand, we find the rule unduly confiining. It should be relaxed in the interests of justice. B. 1:1 — 2. As noted in Farrell, supra, interpreting the statute of limitations, N. J. 8. A. 2A:14-2, is a judicial responsibility. Once an action is commenced by the filing of a complaint within time, judicial interpretation is essential to determine whether joinder of a properly named party may be considered timely thereafter. We see no practical difference between the institution of an action against a fictitiously named party as in Farrell, supra, whose true identity is thereafter discovered, and the instant case where plaintiff's, presumably in good faith and with some justification, served parties believed to be the correct parties. The new defendants are in identical position in both cases. The form of the original complaint, when a defendant is named “John Doe,” should not govern. As stated in Farrell, supra, the issue is one of balancing interests, of individual justice and repose. The good faith and reasonableness of plaintiffs’ conduct must be measured against a claim of prejudice to defendants. Farrell, supra, 63 N. J. at 133.

In this case the trial judge concluded that defendants would be prejudiced because the machine has been disassembled or no longer exists. However, this circumstance alone does not establish prejudice, although it is a factor to be considered. A photograph of the machine is available. Where plaintiffs allege negligence in design, and the design' is not in dispute or can be readily established, the existence of the actual machine may not be essential to prove the claim or defense.

Accordingly, we hold that the action should be remanded for trial. It would appear desirable to have the statute of limitations issue resolved first. The criteria to be considered include good faith and reasonableness in the course pursued, diligence in seeking to substitute the proper party, and an evaluation of prejudice to the defendant by reason of the late notice additional to the normal period of limitations. Ordinarily, a finding on a factual issue resolved by summary judgment would be considered the law of the case. See State v. Cusick, 116 N. J. Super. 483, 485 (App. Div. 1971). Nevertheless, because the issue of notice was resolved by a procedure contrary to that recommended in Lopez v. Swyer, supra, we leave it to the discretion of the trial judge, on application of plaintiffs, to include that issue in the hearing on the applicability of the statute of limitations.

Reversed and remanded for proceedings consistent with this opinion.

      The insurer was apparently the employer’s workmen’s compensation carrier, since the letter referred to an understanding that plaintiffs would institute a third-party action.

      Written interrogatories answered by defendants include the following :
      16. Set forth in complete detail what, if any, relationship, financial or otherwise, you have or had with the entity known as X-Trager Keller, K. G.
      No relationship whatsoever until 1973. Stefan Keller had no interest in the Georg Keller firm and Georg Keller had no interest in Stefan Keller firm. Georg Keller sold his interest in his company in 1973. The new owners formed a company and Stefan Keller became director temporarily until a new director could be found. No directors of one company are connected with the other company. For a short time both companies were in the same building, not same office, but not in same building since 1971.

      The identity in surname of the brothers Keller as well as the place of business of their firms (n. 2, above) may have led to the misinformation obtained from plaintiffs’ employer who had owned the machine in question. Reliance on that information would appear reasonable.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH FUNGONE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 12, 1975
    Decided June 12, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Maurice J. Molyneaux of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Robert A. Jacobson, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant appeals from a conviction of the high misdemeanor of larceny (N. J. S. A. 2A:119-2), contending that he was denied the right to a speedy trial, that his rights pursuant to the Interstate Agreement on Detainers (N. J. 8. A. 2A:159A-3) were violated by his trial beyond the 180-day period from the date upon which he demanded trial while incarcerated at the federal prison at Lewisburg, Pennsylvania, and that the trial judge should have disqualified himself. Identical claims of error were held to be without merit in a companion case filed today, State v. Fungone, Docket No. A-35-73, and the reasons for the court’s ruling will not be repeated in this opinion. He also claims the sentence imposed was excessive.

Defendant, however, also contends that the trial judge committed reversible error when he reassembled and reconvened the jury he had previously discharged, and which had been dispersed after rendition of its verdict, in order to receive and record a part of the verdict they had neglected to report and the trial judge had neglected to request. The indictment charged defendant with the theft of a 1967 Chrysler aulomobile of undetermined value (N. J. 8. A. 2A:119-2), and with knowingly receiving a stolen motor vehicle (Ah J. 8. A. 2A : 139 — 3). After trial the jury returned its verdict acquitting defendant of the “receiving” charge and finding him guilty of larceny. In his charge the trial judge instructed the jury to make a finding as to whether the vehicle in question had a value in excess of $500 or less than $500. When the verdict was returned the jury failed to report a finding with respect to value and the judge forgot to ask for that finding. After the jury was discharged the matter was brought to the attention of the judge, and in order to correct the omission he ordered that the jury be reassembled the following morning. After they had reassembled the judge inquired as to whether they had arrived at a finding as to the value of the stolen motor vehicle. They reported that they had and the value was in excess of $500.

Defendant was thereafter sentenced ito a term of one to three years in New Jersey State Prison, to be served concurrently with the sentence imposed the same day upon defendant’s conviction for armed robbery (Indictment No. 831-71), but consecutively to “any other outstanding sentence.”

The State contends that the action of the trial judge in reassembling the jury was proper because it was not returned to further deliberate but only to report on a verdict it had already reached but did not report. We disagree.

Only one New Jersey decision deals with this subject matter and that one'is distinguishable. In State v. Brandenburg, 38 N. J. Super. 561, (Cty.’Ct. 1956), the foreman of the jury announced its verdict of acquittal for two defendants. No .poll of the jury was requested or taken. The jury was discharged. As the members of the jury dispersed some protested that their verdict had not been correctly reported. The court officers, on their own, reassembled the jury. The judge, on returning to the courtroom, questioned the court officers and discovered that it was in a passageway and corridor outside the court that some of the jurors made known their displeasure with the verdict. Ten minutes had elapsed from the time of discharge until the jury was reassembled. The judge instructed the jury to retire and to deliberate further, after which the jury announced they were unable to reach a verdict. Defendant’s motion to declare null and void all proceedings following the return of the verdict of acquittal was granted on the ground that when the jury was discharged after rendition of its verdict and departed from the courtroom, its existence as a fact-finding entity under the continuous control and supervision of the trial judge.ceased, and its members could not be reassembled to alter the verdict originally returned..

The overwhelming weight of authority elsewhere supports the position, taken in Brandenburg. People v. Rushin, 37 Mich. App. 391, 194 N. W. 2d 718, 720-722 (Ct. App. 1971); Hayes v. State, 44 Ala. App. 499, 214 So. 2d 708, 710 (Ct. App. 1968); Ware v. Graham, 417 P. 2d 936, 939 (Okl. Ct. Crim. App. 1966); People v. DeStefano, 64 Ill. App. 2d 389, 212 N. E. 2d 357, 366-367 (Ct. App. 1965); People v. Hughes, 171 Cal. App. 2d 362, 340 P. 2d 679, 682-685 (Ct. App. 1959); Commonwealth v. Cano, 182 Pa. Super. 524, 128 A. 2d 358, 366 (Super. Ct. 1956), aff’d 389 Pa. 639, 133 A. 2d 800 (Sup. Ct. 1957), app. dism. 355 U. S. 182, 78 S. Ct. 267, 2 L. Ed. 2d 186 (1957); West v. State, 228 Ind. 431, 92 N. E. 2d 852, 855 (Sup. Ct. 1950); Commonwealth v. Johnson, 359 Pa. 287, 59 A. 2d 128, 129-131 (Sup. Ct. 1948); Ex parte Brown, 139 Kan. 614, 32 P. 2d 507, 511 (Sup. Ct. 1934); Melton v. Commonwealth, 132 Va. 703, 711-712, 111 S. E. 291, 293-294 (Sup. Ct. App. 1922).

The faot that the jury was not returned for further deliberation but merely to report a verdict previously reached does not constitute a distinguishing feature sufficient to validate the later verdict. In Commonwealth v. Cano, supra, the jury was not returned to deliberate and nonetheless the proceedings subsequent to their discharge were invalidated because they had been permitted to disperse. See also, People v. DeStefano, supra. The fact that the uncontradicted evidence disclosed that the automobile was worth in excess of $500 on the day it was stolen does not remove the issue of value from jury consideration. State v. Jones, 275 N. C. 432, 168 S. E. 2d 380, 384 (Sup. Ct. 1969).

The essential factor in determining whether a discharged jury can be reassembled in order to further deliberate or report on a verdict already reached is whether it has dispersed, left the jury box or courtroom, and had an opportunity to mingle with court attendants, other jurors, or third persons. The fact that the court has announced the jury’s discharge will not foreclose subsequent proceedings by the jury, if its members have remained in the jury box or otherwise within the continuous control of the court. Summers v. United States, 11 F. 2d 583, 586 (4 Cir. 1926), cert. den. 271 U. S. 681, 46 S. Ct. 632, 70 L. Ed. 1149 (1926). As noted by the Virginia Supreme Court in Melton v. Commonwealth, supra:

While the jury are in the actual presence of the court and under its control, it can see, without resort to testimony, that the fountain of justice has been kept pure, and that no harm could have come to the accused. Beyond this we are unwilling to go * * *. When the court announces their discharge, and they leave the presence of the court, their functions as jurors have ended, and neither with nor without the consent of the court can they amend or alter their verdict. The sanctitude of jury trials cannot be thus subjected to the hazard of suspicion. [111 S. E. at 293, 294.]

In the present case there is no question but that the jury dispersed. They were reassembled on the morning following their discharge. Clearly, in these circumstances the efforts of the trial judge to correct the defective verdict was of no avail.

The State requests this court to exercise its original jurisdiction to downgrade the conviction to the level of a misdemeanor, thus giving effect to the guilty verdict returned without a finding as to value. We consider this suggestion to be an eminently practical one. To reverse and to remand would impugn the unanimous verdict reached without any just cause to do so. People v. Hughes, supra. Accordingly, in the exercise of our original jurisdiction, B. 2:10-5, we remand the case to the trial court for the entry of a judgment of conviction for the lesser misdemeanor offense of larceny and resentencing on that new conviction.

Reversed and remanded for further proceedings consistent with this opinion.

      The offense for which defendant was convicted occurred on October 22, 1970. This was after the effective date of N. J. S. A. 2A:119-2 as amended by B. 1970, c. 298, § 1, which increased the required minimum property value for conviction of a high misdemeanor from $200 to $500; but before the later amended statute reflected in B. 1972, c. 159, which denominated thefts of property of $200 or under in value to be a disorderly persons offense.