Cooper v. Jeter, 60093

• Decision Date: 19 December 1951
• Docket Number: No. 60093,60093
• Citation: 17 N.J.Super. 180,85 A.2d 555
• Parties: COOPER v. JETER. . Law Division, New Jersey
• Court: New Jersey County Court

Page 180

17 N.J.Super. 180

85 A.2d 555

COOPER v. JETER.

No. 60093.

Hudson County Court Law Division, New Jersey.

Dec. 19, 1951.

Robert S. Hartgrove, Jersey City, attorney for plaintiff.

Harold W. Gorrin, Jersey City, attorney for defendant.

DREWEN, J.C.C.

Upon plaintiff's motion for summary judgment herein I have examined the pleadings and proofs and considered the briefs submitted. Pursuant to Rule 3:56 I find the following facts to be without substantial controversy and that they are not in good faith controverted by defendant, viz.: (a) that defendant was the landlord of plaintiff; (b) that defendant did not comply with the refunding order, and (c) that all other factual matters in issue necessary for the proof of plaintiff's case, save those hereinafter indicated, have not been substantially or in good faith controverted by defendant.

The factual issues which I reserve for determination by a jury are whether defendant's violation of the federal act in failing to comply with the refunding order was willful, and whether the violation was the result of failure to take practicable precautions against its occurrence.

Accordingly, the trial will be limited to proof on the two issues last stated, and the jury will be instructed Inter alia that its verdict must be for plaintiff in the sum of $743.60 in the event that defendant proves by the prepondenance of credible evidence that the violation was not willful and not the result of failure to take the precautions aforesaid; and that its verdict must be in favor of the plaintiff in the sum of $2,230.80 in the event that defendant fails to make proof.

Counsel have argued the statute of limitations in relation to this motion. It is my holding in that regard that the defense of the statute of limitations does not apply. See Woods v. Stone, 333 U.S. 472, 68 S.Ct. 624, 92 L.Ed. 815 (1948) and Demosse v. Shimmel, 12 N.J.Super. 356, 79 A.2d 508. (Cty.Ct.1951).

My reasons for restricting the summary judgment to the actual amount of the ordered refund, and reserving the penalty asked by plaintiff in the sum of $2,230.80, are these. The statutory provision is that defendant can save the penalty if he 'proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.' 50 U.S.C.A. Appendix, § 1895. The penalty we are dealing with is one designedly harsh. I doubt, sufficiently to deny, that Rule 3:56 was intended to authorize summary judgment in circumstances like these. The margin of discretion it allows in its qualification of the controversy upon whose absence its effect is predicated, as 'substantial' and as being 'in good faith,' appears to me to indicate its present inapplicability. It is one thing to say that a controversy is or is not substantial when it concerns some utterly objective fact like a charge or payment of money in a given sum or on a given date, but quite another when its concerns a matter of subjective moral import like willfulness or good faith. Unless it is stultified by unmistakable admissions or similarly precluding facts, the mere affirmation of good faith is ordinarily enough to put it in issue. Also...