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Ness v. Borough of Haledon

Decided: February 18, 1947.

LORETTA VAN NESS, PETITIONER-DEFENDANT,
v.
BOROUGH OF HALEDON, RESPONDENT-PROSECUTOR



On certiorari.

For the petitioner-defendant, Marcus & Levy (Isadore Rosenbloom, of counsel).

For the respondent-prosecutor, William A. Davenport (Robert E. Kiernan, of counsel).

Before Justices Parker, Donges and Eastwood.

Eastwood

The opinion of the court was delivered by

EASTWOOD, J. This is a workmen's compensation case. The respondent-prosecutor, Borough of Haledon, seeks by writ of certiorari allowed, to review a judgment of the Passaic County Common Pleas Court which affirmed the determination of the Workmen's Compenastion Bureau making an award in favor of the petitioner-defendant, Loretta Van Ness, the widow of Charles Van Ness, deceased, and her two minor children Frank Van Ness and Donald Van Ness. There is no dispute as to the amount of the award and the sole question requiring judicial determination is that of liability on the part of the Borough of Haledon.

A review of the factual minutiae may not be amiss. It appears that petitioner-defendant's husband, Charles Van Ness,

was at the time of his death on July 10th, 1944, a "police marshal" of the Borough of Haledon, having been appointed as such on January 1st, 1944. The pertinent ordinance in force relating to the police department of the Borough of Haledon provides as follows:

"The Council of the Borough of Haledon hereby ordains that a Police Department be and hereby is established in this Borough consisting of a Chief of Police and such policemen and marshals as shall hereinafter be appointed." Section I, Ordinance 81.

"The compensation of the members of the department shall be determined by the Council. The marshals shall be paid only for such time as they shall be engaged in actual duty assignment of the Mayor, Police Committee or Chief of Police." Section 13 of Ordinance 81.

"All orders and assignments for any member of the Police Department from the Mayor or Police Committee shall be made to and through the Chief of Police." Section 14 of Ordinance 81.

On the night in question, July 10th, 1944, the decedent, police marshal, Charles Van Ness, was in attendance at a police court hearing in the Borough of North Haledon for the purpose of testifying in a motor vehicle case. A reciprocal arrangement was in effect whereby the policemen of the Boroughs of Haledon, North Haledon, and Prospect Park, responded to one another's calls when the radio car of a particular borough could not be reached, or as is said in police parlance, "Out of call." A radio call that an accident had occurred at the Vigliano home in North Haledon Borough was received by regular patrolman Romanelli, who at the time was on duty operating radio car No. 44 of the Borough of Haledon. The radio call in question was directed to car No. 47 of North Haledon Borough. Romanelli, knowing that the North Haledon Borough radio car was "Out of call," that Captain Stutz, chief of police of North Haledon, was also in attendance at the police court where decedent, Van Ness was present, and not knowing the location of the Vigliano home where the accident had occurred, drove to the police headquarters of North Haledon Borough to inform [135 NJL Page 224] Chief of Police Stutz of said call. By coincidence, Chief Stutz came out of the police headquarters at the same time that officer Romanelli arrived, and stated that he had already received the message over the telephone, and that "We are on our way now." Stutz was followed by two North Haledon Borough councilmen, and all three got into the North Haledon police car and proceeded to the Vigliano home. Romanelli apparently did not get out of his car. The decedent, Charles Van Ness, in civilian clothes, got into Romanelli's car without any invitation or request from Romanelli. Romanelli, in turn, followed the automobile occupied by Chief Stutz and eventually arrived at the Vigliano home where it developed that a woman had fallen down a flight of stairs and had sustained what appeared to be serious injuries. Stutz and Romanelli took charge of the situation. Van Ness, according to the testimony of these witnesses, was not observed to have done anything except to stand by. It was determined between Romanelli and Stutz that the injured woman was in immediate need of hospital care and that an ambulance should be procured. Stutz then proceeded by radio to request Haledon Borough headquarters to send over the ambulance of the Haledon emergency ambulance corps, but was informed that Haledon Borough headquarters was unable to contact the emergency ambulance corps. The ambulance in question was one operated by a private charitable organization for the use of the residents of Haledon Borough and adjacent communities. The decedent, Van Ness, without request or direction from either Chief ...


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