J. J. Nugent Co. v. Sagner

• Decision Date: 24 June 1977
• Parties: J. J. NUGENT CO., a corporation of the State of New Jersey, and John J. Dunn Construction Co., a corporation of the State of New Jersey, a Joint Venture, Plaintiffs-Respondents, v. Alan SAGNER, Commissioner of the New Jersey Department of Transportation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 189

151 N.J.Super. 189

376 A.2d 945

J. J. NUGENT CO., a corporation of the State of New Jersey,

and John J. Dunn Construction Co., a corporation

of the State of New Jersey, a Joint

Venture, Plaintiffs-Respondents, v. Alan SAGNER, Commissioner of the New Jersey Department of

Transportation, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted June 14, 1977.

Decided June 24, 1977.

William F. Hyland, Atty. Gen., for defendant-appellant (Stephen Skillman, Asst. Atty. Gen., of counsel, Steven A. Tasher and Daniel P. Reynolds, Deputy Attys. Gen., on the brief).

Carpenter, Bennett & Morrissey, Newark, for plaintiffs-respondents (John C. Heavey, Newark, of counsel; John C. Phillips, Newark, on the brief).

Before Judges LORA, CRANE and MICHELS.

PER CURIAM.

On November 12, 1975 plaintiffs J. J. Nugent Co. and John J. Dunn Construction Co., a joint venture, filed a complaint in Superior Court, Law Division, Atlantic County, against defendant Alan Sagner, Commissioner of the New Jersey Department of Transportation, seeking damages for alleged breaches of contract. The suit is brought under the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq., and arises out of plaintiffs' participation in the construction of a section of Route 95 in Mercer County. N.J.S.A. 59:13-4 provides that all suits filed against the State under the act shall be in accordance with the rules governing the courts of New Jersey.

On January 26, 1976, pursuant to R. 4:3-3(a)(1) & (3), defendant moved to change the venue from Atlantic County to Mercer County on the ground that venue had not been laid in accordance with R. 4:3-2(a)(2) and on the further ground that a change of venue was required in the interest of justice in light of the severe burden and inconvenience which trial in Atlantic County would pose to defendant. It is undisputed that the work was performed in Mercer County; the cause of action arose in that County; the contract was signed there, and defendant and the records of the job are located there.

Leave to appeal from the trial judge's denial of the motion was granted by this court on August 4, 1976.

A motion for change of venue is governed by R. 4:3-3(a) which provides in pertinent part for such change "if the venue is not laid in accordance with R. 4:3-2 or for the convenience of parties and witnesses in the interest of justice."

R. 4:3-2 provides that:

Venue shall be laid by the plaintiff in Superior Court actions as follows: * * * (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose; (3) except as otherwise provided in (other rules not pertinent to this case) the venue in all other actions in the Superior Court shall be laid in the county in which the cause of action arose, or in which any party to the action resides at the time of its commencement, or in which the summons was served upon a nonresident defendant.

Venue was laid in Atlantic County, the residence of one of the plaintiffs. The cause of action arose in Mercer County. The trial judge ruled that venue was laid in accordance with R. 4:3-2(a) because subsection (3) and not (2) applies to the circumstances of this case. Specifically, the trial judge found that defendant is not a "public officer" nor is the Department of Transportation a "public agency" within the meaning of subsection (2). J. J. Nugent Co. v. Sagner, 141 N.J.Super. 591, 596, 359 A.2d 515 (Law Div.1976).

In reviewing the status of the prior law as well as the general state of the law at the time the rule was promulgated, the trial judge was attempting to ascertain whether there was "something about the language (of the rule) or its effect" which would compel him to construe it other than according to it the generally accepted meaning of its words. Downey v. Jersey City Bd. of Ed., 74 N.J.Super. 548, 552, 181 A.2d 795 (App.Div.1962). Stated differently, the trial judge was seeking to construe the rule, giving "due regard (for) the old law, the mischief resulting therefrom and the enacted legislative remedy for the eradication of the evil." Health Dept. v. Sol Schnoll Dressed Poultry Co., 102 N.J.Super. 172, 176, 245 A.2d 532, 534 (App.Div.1968). The application of these principles led the judge to conclude that there was no evidence that the rule at issue here was specifically designed to remedy abusive practices in suits against the State.

The trial judge further concluded that the existence of the doctrine of sovereign immunity in 1949 when the court rules, and in particular R. 4:3-2(a)(2), were adopted, did not strongly support the view advanced by plaintiffs that the draftsmen did not contemplate a direct suit against a branch of government and never intended to include the State and its officials within the terms "public agency or official" in R. 4:3-2(a)(2). We agree with the trial judge's conclusion in this regard and note that while sovereign immunity was still the general rule, some limitations thereon had already been established by legislation and judicial decree. Moreover, the venue rule in question applies to suits "by or against" a public agency or official, a clear indication that the draftsmen did not have the doctrine of sovereign immunity in mind when the predecessor to R. 4:3-2(a)(2) was developed. Consequently, the existence of the doctrine of sovereign immunity in 1949 is of little significance as an aid to construction of the rule.

In concluding that venue was properly laid in Atlantic County under R. 4:3-2(a)(3), the trial judge determined that the rule was ambiguous and utilized the ejusdem generis rule of construction as a basis for his determination that defendant and the Department of Transportation do not fall within the meaning of the terms "public agencies or officials."

The rule of ejusdem generis is set forth in Transcontinental Gas Pipeline Corp. v. Dept. of Conservation & Development, 43 N.J. 135, 202 A.2d 849 (1964) as follows:

* * * in the construction of statutes when general words follow specifically named things of a particular class, the general words must be understood as limited to things of the same class, or at least of the same general character. (at 146, 202 A.2d at 855).

The trial judge noted that the terms "public agencies or officials" are immediately preceded by the terms "municipal corporations, counties." He therefore reasoned that the scope of public agencies or officials should not be given their broad general meaning but should be construed to embrace only public agencies and officials similar in nature to the specific government bodies listed, i. e., local agencies or officials, not state agencies or officials. We disagree.

It is our view that greater effect should have been given to the literal meaning of the language of the rule and that the trial judge should not have applied the rule of ejusdem generis.

* * * (W)here the wording of a rule is precise and free from ambiguity on its face, there is no need for judicial interpretation, reliance upon extrinsic material or exercise of discretion. (State v. Zold, 105 N.J.Super. 194, 200, 251 A.2d 475, 479 (Law Div.1969), aff'd o.b., 110 N.J.Super. 33, 264 A.2d 257 (App.Div.1970), certif. den. 57 N.J. 131, 270 A.2d 34 (1970))

Accord, State in Interest of L. B., 99 N.J.Super. 589, 598, 240 A.2d 709 (J. & D.R.Ct.1968) . Similarly, "(i)n the absence of an explicit indication of a special meaning, the words of a statute are to be given their ordinary and well understood meaning." Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478, 197 A.2d 366, 378 (1964), cert. den. 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed.2d 84 (1964). Accord, Service Armament Co. v. Hyland, 70 N.J. 550, 556, 362 A.2d 13 (1976). In our opinion, defendant falls within the literal meaning of the rule and there is little in the history of the rule or the circumstances surrounding the adoption of its predecessor which militates for a contrary construction. Under the circumstances, application of the ejusdem generis rule is uncalled for and, in effect, creates more ambiguities than it resolves. Extrinsic aids to construction should not create ambiguity. Safeway Trails, Inc. v. Furman, supra, 41 N.J. at 482, 197 A.2d 366.

The predecessor to the rule was R.R. 3:3-2 which included the language "municipal corporations or counties or public agencies or officials," Rabin v. Pollit, 11 N.J.Super. 127, 128, 77 A.2d 909, 910 (Law Div.1950), instead of the current "municipal corporations, counties, public agencies or officials." We believe the use of the disjunctive "or" between each term in the original rule indicates that the four terms were intended to delineate four distinct categories. This counters the mandate of the ejusdem generis rule as applied by the trial judge insofar as that rule establishes the first two terms as limitations on the scope of the latter terms. Additionally, we view the deletion of the word "or" from the current rule as a grammatical change not intended to alter the meaning of the rule but merely an attempt to make the rule more readable so that the rule, even in its present form, is intended to be read in pertinent part "municipal corporations or counties or public agencies or officials."

Furthermore, application of the rule of ejusdem generis has been rejected where, as here, the rule or statute is not ambiguous.

In State v. Goodman, 9 N.J. 569, 89 A.2d 243 (1952), the court was called upon to determine whether a Deputy Director of the Newark Department of Public Affairs and an inspector in the Newark Department of Health were "officers" within the meaning of the extortion statute, R.S. 2:127-1, which provided:

Any judge, magistrate, sheriff, coroner, constable, jailer or other officer who shall by color of his office, receive or take any fee or reward whatsoever not allowed by law for doing his office, shall be guilty of a...