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Atkinson v. Parsekian

Decided: April 2, 1962.

FRED ATKINSON, APPELLANT,
v.
NED J. PARSEKIAN, ACTING DIRECTOR, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY, RESPONDENT. STATE OF NEW JERSEY, DIVISION OF MOTOR VEHICLES, AND NED J. PARSEKIAN, ACTING DIRECTOR, PLAINTIFF-RESPONDENT, V. OLIN D. RALPH, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.

Proctor

Olin D. Ralph and Fred Atkinson, defendants in these separate actions, appealed to the Appellate Division pursuant to R.R. 4:88-8(a) from orders of the Acting Director, Division of Motor Vehicles, suspending their drivers' licenses for one year after each was involved in a fatal automobile accident. After separate hearings the Acting Director found each defendant had violated the provisions of the Motor Vehicle Act, N.J.S.A. 39:1-1 et seq. and issued the suspension orders. Because of the similarity of the issues presented, the appeals were consolidated. While the matter was pending in the Appellate Division we granted the defendants' motions for certification. R.R. 1:10-1A.

We will first consider Ralph's appeal.

At about 1:50 A.M. on June 4, 1960, Ralph was driving his automobile in an easterly direction along U.S. Route 40 in Hamilton Township, Atlantic County. At the same time William DeHaven was driving his sports car in the opposite direction along the same road. Both men were alone in their vehicles. The roadway was straight, level and dry. The two cars collided and as a result of injuries received DeHaven died without regaining consciousness.

The investigating officer, Trooper Brown of the New Jersey State Police, made a complaint against Ralph, charging him with violating N.J.S.A. 39:4-82 (failure to keep to the right) and N.J.S. 2A:113-9 (causing death by vehicle). The municipal court held the defendant for the Grand Jury on the death charge and held the other charge in abeyance. The Grand Jury returned a "No Bill." Thereafter, the defendant was tried in the municipal court

and found not guilty of the charge of failing to keep to the right.

As a consequence of the collision which resulted in the fatality, the Acting Director, pursuant to his authority under N.J.S.A. 39:5-30, notified Ralph that he proposed to revoke Ralph's driver's license because he violated N.J. S.A. 39:4-97 (careless driving) and N.J.S.A. 39:4-82 (failure to keep to the right). The notice also informed Ralph he would be afforded a hearing upon his request. Ralph so requested and a hearing was conducted by an officer of the Division of Motor Vehicles designated by the Acting Director. There were only two witnesses at the hearing, Trooper Brown and Ralph. The trooper testified he arrived at the accident scene twenty minutes after the collision. He said his investigation revealed that: In the vicinity of the accident, Route 40 is a straight and level macadam road, 20 feet wide with two nine-foot shoulders and a grass berm on each side. There was no indication of skid marks by either automobile prior to the collision. After the impact Ralph's automobile left 120 feet of skid marks starting from a point in the westbound lane three feet north of the center line, continuing in that lane for 35 feet and then crossing over to the eastbound lane and onto the south shoulder. DeHaven's vehicle left 30 feet of "slide" marks leading from the westbound road edge to its resting place on the north shoulder. Practically all of the dirt and debris resulting from the collision were located in the westbound lane. The trooper stated that the physical evidence, i.e., the marks on the road and the location of the debris, indicated that DeHaven's vehicle was in the westbound lane, its proper lane of travel, when it was sideswiped by Ralph's car which was traveling on the wrong side of the road. He found no physical evidence to indicate DeHaven departed from his proper lane of travel. Ralph testified as follows: He saw DeHaven's car when it was one-quarter of a mile away from him. As they neared each other, he noticed DeHaven was in the

wrong lane and was not heading back into the proper lane. Ralph applied his brakes and turned to the right, but it was too late to avoid the collision. He said the accident occurred in his proper lane of travel; that "I pulled to the right almost off to the shoulder and that's when we hit." According to Ralph, his car went out of control after the impact, traveled over to the other lane and then back into his own lane. The damage resulting to the vehicles as shown by the photographs in evidence is not helpful in reconstructing the facts leading up to the collision.

The hearing officer rejected Ralph's version of the accident because "all the physical evidence at the scene points to the fact that the impact took place in the victim's lane about 3 feet north of the center line" and he found "that the State's case was substantiated by the testimony." He made a report of his findings to the Acting Director in which he recommended "the defendant's driving privilege be revoked for a period of one year." Ralph made numerous exceptions to this report. The Acting Director in reaching his determination reviewed the hearer's report along with the exceptions, and concluded:

"Defendant has testified that the decedent's vehicle was partially in the eastbound lane prior to collision and that the defendant pulled to the right to avoid collision. In his testimony and in the statement he gave voluntarily to the investigating officer, he states that the impact occurred near the shoulder of the eastbound lane. The physical evidence, such as dirt, debris, and skid marks of both vehicles, which has been offered in support of State's charges has conclusively established that the impact occurred in the westbound lane, the victim's rightful lane of travel. None of this physical evidence lends any credence to the defendant's testimony."

Accordingly, the Acting Director was "convinced" Ralph had violated N.J.S.A. 39:4-97 and N.J.S.A. 39:4-82 and thereby caused the accident resulting in DeHaven's death. He adopted the recommendation of the hearer and ordered Ralph's driver's license suspended for one year.

On his appeal Ralph first argues that the evidence does not support the Acting Director's determination that he violated N.J.S.A. 39:4-97 and N.J.S.A. 39:4-82. In this regard Ralph contends the charges against him were not proved "beyond a reasonable doubt" and therefore the Acting Director's order must fall. In support of his contention that such quantum of proof is necessary, he cites a number of cases, e.g., State v. Cestone, 38 N.J. Super. 139 (App. Div. 1955). These cases are inapplicable as they involve quasi -criminal prosecutions in the municipal courts for violations of the Motor Vehicle Act. In proceedings before an administrative agency, unlike the proceedings in Cestone, it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt. Freud v. Davis, 64 N.J. Super. 242 (App. Div. 1960); Kravis v. Hock, 137 N.J.L. 252 (Sup. Ct. 1948); Hornauer v. Div. of Alcoholic Beverage Control, 40 N.J. Super. 501, 503 (App. Div. 1956); Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936). And on appeal the factual determinations of the administrative agency are generally sustained if they are supported by substantial evidence on the whole record, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 95 L. Ed. 456 (1951); see N.J. Bell Tel. Co. v. Communications Workers, etc., 5 N.J. 354, 378 (1950); Hornauer v. Div. of Alcoholic Beverage Control, supra, at pp. ...


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