Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
The plaintiff, Dr. Morris Joseph, appeals from a summary judgment entered against him. Sometime in the latter part of 1952, when he was apparently 63 years of age, he resigned from the active medical staff of the defendant Passaic Hospital Association, on which he had served 25 years as a senior attending surgeon. He was thereupon elected as a member of the emeritus staff and as such, was entitled, it would seem, to the privileges of the active staff, but without certain responsibilities for ward patients. On February 15, 1954 the board of governors of the hospital at a regular meeting decided not to reappoint him.
He sues the hospital association, a corporation, for reinstatement and other relief, joining (with questionable propriety) a large number of defendants, including all persons constituting its board of governors and medical board, certain officials of the hospital, together with the medical staff, an unincorporated association.
The constitution of the Hospital Association and the by-laws adopted by its medical staff (the important provisions
are set out in the opinion below, 35 N.J. Super. 450, 452 (1955)) are in several respects obscure. More than that, it is not clear whether these by-laws control the board. However we shall, for the purposes of the motion for summary judgment, assume that they do. Defendants do not say otherwise; in fact they admit that the board approved the same. Cf. L. 1877, c. 103 (particularly § 5, p. 161) under which act the Hospital Association was incorporated; L. 1899, c. 76, § 2, p. 197. Cf. also N.J.S.A. 15:1-4(e).
One question presented by the constitution and by-laws is whether they call for the reappointment of the emeritus staff annually. Certain provisions thereof so indicate. They seem to provide that the medical staff (and the medical staff is defined to include emeritus members) are to be appointed annually by the board of governors (Hosp. Const., Art. VIII, Sec. 6; By-Laws, Art. II, Secs. 1, 2, first sentence) at its December meeting "for the ensuing calendar year" (Hosp. Const., Art. VIII, Sec. 2). The by-laws repeat this somewhat explicitly with respect to the active medical staff. But there is rather noticeably no repetitive provision as to members emeritus. Moreover in fact the plaintiff seems to have been elected to the emeritus staff "sometime in the latter part of 1952" and then to have stayed on without further action on the part of the Hospital Association until February 1954. We are therefore not entirely clear whether the contemplation of the constitution and by-laws was to have the emeritus staff reappointed annually. It would seem better not to attempt to resolve this question now (since the case has to go to trial because of other circumstances). Proof at the trial might establish a general practice on the part of the board of governors with respect to emeritus appointments, which might help to dispose of the question.
If, however, we assume that it was intended to have emeritus members reappointed annually, we are confronted with another question, namely, whether they each have the right to a hearing (if the member desires it) before he fails of reappointment. This turns on a provision of the by-laws, as follows:
"Section 6. Terminations and Removals.
A. The active service of any member shall terminate automatically on his sixty-fifth birthday, at which time said member shall automatically be appointed to the Emeritus Staff, and any member may voluntarily retire at the age of sixty years at his own request, and may be eligible for election to the Emeritus Staff.
B. Appointments to the active Medical Staff shall be made by the Board of Governors on recommendation of the Medical Board on an annual basis, and subject to review each year by the Governors. Before a man fails of reappointment, he shall be given an opportunity to be heard by the Board of Governors if he so desires."
Is this second sentence of subsection B to be construed as applicable to members emeritus? After considerable hesitancy, we have come to the conclusion -- contrary to that reached by the court below -- that it is so to be construed. (As a matter of good draftsmanship the sentence (and the one following it, not quoted) should of course have been designated Section 6C.) It seems to us to be not unreasonable to suppose (with both the emeritus and the active staffs reappointed annually) that an intention to provide a hearing in case a member fails of reappointment, might apply alike to the emeritus member as to the active member. But this is a mere speculation. The persuasive fact here is that the joint committee of the hospital, purporting to act for the board of governors, has indicated that ...