Goldberg v. Housing Auth. of City of Newark

186 A.2d 291, 38 N.J. 578, 10 A.L.R. 3d 595, 1962 N.J. LEXIS 197

• Court: Supreme Court of New Jersey
• Decided: December 3, 1962
• Status: Published

Opinions

The opinion of the court was delivered by

Weintraub, C. J.

While delivering milk to a tenant at defendant’s housing project, plaintiff was beaten and robbed by two men. The attack occurred at about 1:30 p. m. in a self-service passenger elevator. Whether the assailants were tenants, guests of tenants, or intruders, is not known. The jury found for plaintiff and the Appellate Division affirmed. 70 N. J. Super. 245 (1961). We granted certification. 36 N. J. 233 (1961).

Plaintiff prevailed upon the single thesis that defendant had a duty to provide police protection.¹

Defendant is a public corporation created by the City of Newark under the Local Housing Authorities Law (N. J. S. A. 55 :14A-1 et seq.). It developed a number of projects. The one here involved embraces 19.15 acres, with 10 apartment houses, each of 12 stories, offering accommodations for 1,458 families. The residents at the time here involved numbered between 5,300 and 6,000. The Appellate Division said (70 N. J. Super., at p. 255) :

“We hold that defendant, since it created and maintained a housing project which, because of its size, physical composition and method of operation, was beyond the pale of regular municipal police surveillance, and yet because of these same factors was susceptible to criminal activities, was under a duty to provide such protection in the Hayes project as was necessary under the circumstances, and that a question of fact was presented for jury consideration as to whether the provisions made by defendant for private police guards were adequate. As to whether defendant’s dereliction, if any, was the proximate cause of plaintiff’s injuries and the damage he suffered, again it was for the jury to decide from the evidence whether the assault and robbery was a result of defendant’s negligence. Plaintiff was not required to prove that the assault and robbery would not have taken place had defendant supplied additional protection. It is axiomatic that better policing would have acted as a deterrent. Cf. Crammer v. Willston Operating Co., Inc., 19 N. J. Super. 489 (App. Div. 1952).”

The Appellate Division, called the project “a city within a city.” The description may be apt in terms of population but in no other sense. The project is not physically isolated from the neighborhood. Each apartment house fronts on a public street and still another street bisects the development, four structures being north of it and six south. The bisecting street is closed to traffic, being reserved for play. In terms of access by the police force of the city, the apartment houses are not distinguishable from high-rise apartments owned by private developers. In fact a police headquarters is located nearby.

The Appellate Division held that notwithstanding defendant’s public nature, its liability for negligence must be adjudged on the principles, of law applicable to the private owner of property. It reached that conclusion both because of the “proprietary” nature of the operation as that term is used in this field and because the statute under which defendant was formed reveals a legislative intent that the local authorities be accountable on that basis. 70 N. J. Super., at pp. 250-253. Thus far we agree.

We cannot however agree that defendant has the duty to furnish police protection. That duty, we think, is the dirty of government. Since the statute under which defendant was created does not- impose such a duty upon it,² the question is whether that obligation can be found upon the principles applicable to the private owner of residential property.

We note at once that no statute empowers the owner of residential property to have a police force. Such authority has been granted to private enterprise in very limited situations.³ Hence the owner of residential property could “furnish” police protection only if the municipality agreed to assign special policemen at the owner’s expense, a practice which seemingly rests upon N. J. 8. A. 40 :47 — 19, which authorizes the governing body to appoint special policemen who shall not be part of the police force but who shall be under “the supervision and direction of the chief of police.” See McAndrew v. Mularchuk, 33 N. J. 172 (1960); Caronia v. Civil Service Commission, 6 N. J. Super. 275, 280 (App. Div. 1950). And, from the wording of the statute, it would appear that a policeman so assigned would not be subject to the order of the owner of property but rather would be under “the supervision and direction of the chief of police.”

Thus, defendant was here held liable for not furnishing a type of protection it cannot provide on its own decision. Of this, more later.

I.

The question whether a private party must provide protection for another is not solved merely by recourse to “forsee-ability.” Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide “police” protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also* foreseeable, it would be the duty of every motorist h> provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.

The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.

We are not aware of any decision which even approaches the result reached below. A brief review of the cases to which our attention has been drawn reveals they involved different risks or different relationships.

Common carriers 'have a duty to use a high degree of care to protect the persons of their patrons. In Exton v. Central R. R. Co., 62 N. J. L. 7 (Sup. Ct. 1898), affirmed o. b. 63 N. J. L. 356 (E. & A. 1899), the railroad knew of prior scuffling between cabmen for business, but nonetheless did not eject or otherwise deal with them. Plaintiff was injured •when, the scuffling recurred. In Skillen v. West Jersey & Seashore R. R. Co., 96 N. J. L. 492 (E. & A. 1921), a passenger was injured by a “spi-tball.” The record showed the conductor was 'aware of the antics of the schoolboys involved but did nothing to stop them. In Sandler v. Hudson & Manhattan R. R. Co., 8 N. J. Misc. 537, 151 A. 99 (Sup. Ct. 1930), affirmed 108 N. J. L. 203 (E. £ A. 1931), a passenger was injured by the crush of the crowd and the issue was the sufficiency of guards to deal with that regular phenomenon of defendant’s business. In Quigley v. Wilson Line of Massachusetts, 338 Mass. 125, 154 N. E. 2d 77, 77 A. L. R. 2d 499 (Sup. Jud. Ct. 1958), plaintiff, a passenger on a vessel, was injured by the unprovoked assault of a drunken passenger. Defendant maintained a bar, and its guards, knowing the assailant had already been in another fracas that evening, failed to restrain him or to keep an eye on him. In Neering v. Illinois Central R. R. Co., 383 Ill. 366, 50 N. E. 2d 497 (Sup. Ct. 1943), a young lady was attacked while waiting for a train on an unattended railroad platform at an early morning hour. The evidence showed the railroad knew that hoboes and tramps regularly loitered there and in the warming hoixse thereon, and despite plaintiff’s prior complaints, the railroad did nothing to clear the place of those characters or to protect its patrons against them. The court held the evidence sufficed to show a breach of duty (found to be a duty of ordinary care, rather than the higher duty owed by a carrier to a passenger). In each of these cases the hazard was specific, localized, and known to the defendant.

Another group of cases relates to the- duty of the proprietor of a business operation open to the public to protect his guest from the predictable behavior of other guests. In Williams v. Essex Amusement Corp., 133 N. J. L. 218 (Sup. Ct. 1945), plaintiff, attending a crowded theatre, was unintentionally ■floored by a running boy. There was no usher present. In Reilly v. 180 Club, Inc., 14 N. J. Super. 420 (App. Div. 1951), two patrons at a bar engaged in “needling” which led to a scuffle in which plaintiff, a nonparticipant, was pushed from his stool. The bartender failed to intervene despite portending events of which he was aware. In Crammer v. Willston Operating Co., Inc., 19 N. J. Super. 489 (App. Div. 1952), a patron at a skating rink unwittingly upset two young ladies. The question was whether there were sufficient ushers to protect patrons from skating which was hazardous in view of the crowd. In Becker v. City of Newark, 72 N. J. Super. 355 (App. Div. 1962), defendant’s employee, contrary to rules and regulations, permitted a five-year-old to ride a tricycle in the locker room. The lad unintentionally hit a bather. In Lee v. National League Baseball Club of Milwaukee, 4 Wis. 2d 168, 89 N. W. 2d 811 (Sup. Ct. 1958), an elderly lady was injured when a number of copatrons at a ball park scrambled for a foul ball. Defendant had provided ushers, with instructions to order patrons to keep their seats in such situations, and the court found ushers had theretofore proved effective in that regard. On this- occasion, however, the usher had left his post to prepare to assume post-game duties on the playing field. Of course, none of those cases would support the proposition that proprietors of such places must provide police protection against an intruding thug. Cf. Genovay v. Fox, 50 N. J. Super. 538 (App. Div. 1958), reversed on other grounds, 29 W. J. 436 (1959).

In the following cases a triable issue was found with respect to criminal assaults but in each the basis of liability is foreign to the case before us. In Lillie v. Thompson, Trustee, &c., 332 U. S. 459, 68 S. Ct. 140, 92 L. Ed. 73 (1947), the defendant railroad assigned its female employee to serve as a telephone operator from 11:30 p. m. to 7:30 A. m. in a one-room structure in a remote place in a railroad yard. The area was unlighted. She was to give messages to railroad employees who came to the structure, but no means were provided whereby she could tell who was at the locked door before opening it. The railroad knew the yard was frequented by "dangerous characters.” In holding the facts sufficient, the court referred to section 302 of Restatement of Torts, comment n, thus indicating the theme to be that defendant ere-ated “a situation which affords an opportunity or temptation to third persons to commit more serious forms of misconduct.” Also basic was the duty of an employer to provide a safe place of work. In McLeod v. Grant County School Dist. No. 128, 42 Wash. 2d 316, 255 P. 2d 360 (Sup. Ct. 1953), the court, by a vote of 5 to 4, sustained a complaint in which it was alleged that a 12-year-old female student was carried by some male students into an unlocked dark room near the gymnasium and there raped. The majority placed its holding upon the principle of section 320 of the Restatement of Toris, that “One who is required by law to take or wlm voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection ox to subject him to association with persons likely to harm him, is under a duty of exercising reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other” under conditions there stated. In short, the child was compelled to attend school, and the school district had a duty to protect her from fellow students. In Wallace v. Der-Ohanian, 199 Cal. App. 2d 141, 18 Cal. Rptr. 892 (1962), a child was a guest at a children’s camp. She was quartered at night in a house unattended by any employee. She was ravished by an intruder. The court noted that defendant knew migrant laborers were working nearby and that defendant at times had employed a parolee. The court held defendant had failed to exercise “due care for the safety of a child left in her custody” (p. 894).

Finally we come to a group of cases dealing with responsibility of the owner of housing projects. In Da Rocha v. New York City Housing Authority, 109 N. Y. S. 2d 263 (Sup. Ct. 1951), affirmed 282 App. Div. 728, 122 N. Y. S. 2d 397 (2d Dept. 1953), defendant, in a play area it provided, turned on a water outlet for the refreshment of children on a hot day, thereby attracting a large number who ran in and out of the spray. A child was struck by a cyclist, riding in violation of a posted regulation. Liability was grounded upon defendant’s failure to enforce its own rules and failure to protect children in an activity it set in motion. In Geigel v. New York City Housing Authority, 225 N. Y. S. 2d 891 (Sup. Ct. 1962), children laid out a baseball diamond utilizing the regular walks upon which they painted bases. Defendant, knowing this, did nothing to remove the bases or to- stop the practice. A child using the walk was injured by a player. The court found defendant’s failure in the circumstances constituted an invitation to ball games, an activity dangerous to others in that specific setting. In Hansen v. New York City Housing Authority, 271 App. Div. 986, 68 N. Y. S. 2d 71 (2d Dept. 1947), a child was struck by a swing on a playground provided by defendant. The court left open the question whether defendant had a duty to- supervise the playground, but found a triable question of fact with respect to the physical conditions. Finally, in Kendall v. Gore Properties, 98 U. S. App. D. C. 378, 236 F. 2d 673 (D. C. Cir. 1956), a tenant was strangled by an insane employee of the landlord. The basis of liability was not a failure to provide police protection but rather negligence in hiring an unknown, without investigation or references, and sending him on the first day of employment to paint after hours in the apartment of a woman who lived alone.

The duty to provide police protection is foreign to the history of the landlord-tenant relationship. By the common law there was neither an implied covenant by the landlord of the fitness of the premises for the intended use nor responsibility in him to maintain the leased premises. With respect to the common areas in his control, his duty was to keep them in a reasonably safe condition. The landlord’s obligation was indirectly affected by building codes and was modified by legislation relating to tenement houses. R. 8. 55 :1-1 et seq. See Michaels v. Brookchester, Inc., 26 N. J. 379 (1958).

Subject to modifying legislation, a landlord offers to lease accommodations which a prospective tenant may false or not as he chooses. The landlord may offer sundry services, which of course will be reflected in the rental charge, but in the absence of statute, there is no duty to furnish them. Thus a landlord may offer to provide a doorman during the day or around the clock, but he need not, and we know that such services are available only in the more luxurious apartment houses, beyond the reach of the average citizen. The sole statutory mandate with respect to attending personnel appears to be R. S. 55 :6-13 of the Tenement House Act, which provides that if there are more than six families, “there shall be a janitor, housekeeper or other responsible person, who shall reside in said house, and who shall have charge of the same, if the board shall so require.”

There are eases dealing with the liability of a landlord for theft of property of his tenants. Liability may exist if there is a failure to secure such property placed within the control of the landlord. And the landlord may be liable for theft if he carelessly enables a thief to gain entrance to the apartment of the tenant. See McCappin v. Park Capitol Corp., 42 N. J. Super. 169 (App. Div. 1956), annotated in 58 A. L. R. 2d 1289 (1958). But no case holds a landlord is under a duty to provide police protection.

II.

We come then to the question whether as an original proposition the owner of multi-family structures should have the duty to provide police, protection. As we have said, the question is one of fairness in the light of the nature of the relationship, the nature of the hazard, and the impact of such a duty on the public interest. We think the duty should not be imposed, for a number of reasons!

The first reason is that we should not find the owner of property is liable for not furnishing police protection to deter invading criminals unless we also find he has the right to provide a police force to that end. We do not see how we can find that right in view of the statutes which vest in government the power to constitute police forces, with certain exceptions, referred to above, which do not include the owner of residential property. But if the statutes were not in the way, we would nonetheless find a barrier in the public welfare. The police function is highly specialized, involving skills and training which government alone can provide. There is no room for the private devices of the frontier days. The proper approach is to state, if there be any doubt upon the subject, the duty of the constituted police forces to move wherever they need to go, not only to detect crime but also to prevent it.

This is not to say that a private person may shut his eyes to the fact of crime and indulge in conduct which aids or invites it. So a bailee of an automobile who leaves the car on a public street with motor running or key in the switch may indeed be liable to the owner if the vehicle is stolen. But it is something else to say that if he turns off the motor and removes the key, he must provide police protection for the vehicle because it may nonetheless be stolen.

The second consideration is the inevitable vagueness of the proposed duty. Fairness ordinarily requires that a man be able to ascertain in advance of a jury’s verdict whether the duty is his and whether he has performed it. To which multifamily houses would the duty apply? Would it depend upon the number of tenancies ? If so, can we now fix the number ? And if the duty springs from a combination of tenancies and prior unlawful events, what kind of offenses will suffice, and in what number, and will crimes next door or around the corner or in the neighborhood, raise the obligation? And if a prescient owner concludes the duty is his,, what measures will discharge it? It is an easy matter to know whether a stairway is defective and what repairs will put it in order. Again, it is fairly simple to decide how many ushers or guards suffice at a skating rink or a railroad platform to deal with the crush of a crowd and the risks of unintentional injury which the nature of the business creates, birt how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? Must the owner prevent all crime-? We doubt that any police force in the friendliest community has achieved that end. How then can the owner know what is enough to protect the tenants in their persons and property? (We add parenthetically that if the duty were found, there would be no -rational basis to confine liability to crimes committed in a common hallway as distinguished from the tenant’s apartment.) Here, a city policeman patrolled the interior walks from 8 A. M. to 4 p. M. and in addition two maintenance men were assigned to each building during that period. From 4 P. M. to 8 a. m. there were three special policemen working in shifts, and tire record indicates the incidents of unlawful conduct were more numerous then than in the daytime. We assume that advocates of liability do not intend an absolute obligation to prevent all crime, but rather have in mind some unarticulated level of effectiveness short of that goal. Whatever may be that degree of safety, is there any standard of performance to which the owner may look for guidance ? We know of none, and the record does not suggest one, and we are at a loss to understand what standard the jurors here employed. The charge to the jury was unrevealing; it simply left to 12 men and women tire task of deciding whether a prudent owner would have done more, and whether, if defendant had, the robbers here would likely have been deterred. That of course was also the view of the Appellate Division.

Not only would there be uncertainty as to when the duty to furnish police protection arises and as to what measures will discharge the duty, there would also be exceptional uncertainty with respect to' the issue of causation. This is so because of the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures. It would be quite a guessing game to determine whether some unknown thug of unknowable character and mentality would have been deterred if the owner had furnished some or some additional policemen. It mnst be remembered that police protection does not, and cannot, provide assurance against all criminal attacks, and so the topic presupposes that inevitably crimes will be committed notwithstanding the sufficiency of the force. ITence the question of proximate cause is bound to be of exceptional difficulty.

Thus vagueness would here be conspicuous in all facets of the issue of negligence and causation. Perhaps this is one of the considerations which underlie the refusal in New York, where sovereign immunity was withdrawn by statute, to permit actions against a municipality for negligent failure to provide police protection, as distinguished, for example, from the failure to provide a bodyguard for an individual who, because of his aid to law enforcement, is threatened with criminal retaliation. See Schuster v. City of New York, 5 N. Y. 2d 75, 180 N. Y. S. 2d 265, 154 N. E. 2d 534 (1958).

Finally, we should not let our understandable concern for the unfortunate plaintiff obscure the fact that the burden of this duty would fall upon citizens who can hardly afford it. We are not dealing with a risk which can be passed along in an increase in liability insurance premiums. We are talking of the employment of men, perhaps the employment, if something like effective assurance is to be realized, of doormen around the clock to cover each of the entrances to the buildings, here a total of 20 entrances. If the owner must provide that service, every insurance carrier will insist that he do it. The bill will be paid, not by the owner, but by the tenants. And if, as we apprehend, the incidence of crime is greatest in the areas in which the poor must live, the]', and they alone, will be singled out to pay for their own police protection. The burden should be upon the whole community and not upon the segment of the citizenry which is least able to bear it.

Hence we believe this most troublesome problem must be left with ’1116 duly constituted police forces. The job is theirs to prevent crime and to go wherever need be to that end. It may well be that the owner of multi-family housing may refuse to permit patrol of the common areas by the public police, cf. State v. Smith, 37 N. J. 481, 496 (1962), and if the owner should thus assert his property right, it would indeed be appropriate to visit upon him the losses sustained by those to whom he denied the protection the public authorities were willing to provide.⁴ But the duty to provide police protection is and should remain the duty of government and not of the owner of a housing project.

We do not mean that the owner may not seek authorization from appropriate public officials to provide further armed protection at his own cost. It may be in his interest to do so. That is a budgetary problem for him alone. It is for him to decide whether he can furnish such protection within the rental income he can obtain from his tenants, or, in the case of a public housing project, from such subsidy as the federal authorities may be able and willing to give. But it is something else to say that the owner must take such steps, indeed at the tenants’ ultimate cost, on the pain of liability for damages.

The judgments of the Appellate Division and of the trial court are accordingly reversed.

1 The complaint charged negligence in general terms. The issue was particularized at the pretrial conference, as our rules direct. R. R. 4:29-1 (a) (1) and 1(b) (2) and (7). Failure to provide police protection was the sole claim of negligence specified in the pretrial order, amended pretrial order, plaintiff’s opening to the jury, plaintiff’s expansive requests to charge, and the trial court’s charge to the jury. In summation, plaintiff pressed the same theme, but in addition argued :

“* * What do they do in a big apartment house when they don’t want these drifters in there lying in the hallways with knives in their pockets, which I read to you in all these exhibits? They lock the doors and give the tenants keys. They have a call box and push the button and we will let you in, or else they have a doorman outside in the more exclusive ones. All right, don’t have a doorman outside, put locks in the doors, give authorized tradesmen either a badge or a key to get in.”

We read this excerpt to acknowledge that doormen are furnished only in the “more exclusive” apartment houses, rather than a claim that defendant was negligent in not furnishing them here. Surely the case was not tried upon any such thesis. Nor was the case tried on the theory that locks should have been installed, and hence there was no evidence with respect to standard practice or the feasibility or utility of the suggestion. In any event, since the police-protection thesis was given to the jury, the judgment cannot be upheld if that thesis was erroneous. Simmel v. New Jersey Coop Co., 28 N. J. 1, 13-14 (1958) ; Guzzi v. Jersey Central Power & Light Co., 12 N. J. 251, 259-60 (1953).

2 In the Local Housing Authorities Law (N. J. S. A. 55:14A-1, et seq.) under which defendant was created, the Legislature found there existed “insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside” in such accommodations; that “such persons are forced to occupy overcrowded and congested dwelling accommodations”; that such conditions increase and spread disease and crime, and “necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities.” N. J. 8. A. 55 :14A-2. Finding that private enterprise cannot be expected to meet the problem, the Legislature authorized local government to create housing authorities which, with the aid of a federal program (42 U. 8. G. A. §§ 1401-35), would provide “decent, safe and sanitary * * * urban or rural” accommodations which may include facilities for “community, health, recreational, educational, welfare or other purposes.” N. J. 8. A. 55 :14A-3(i). Although the foregoing reveals a legislative awareness of slums as breeding places of crime, I take it no one contends the statute meant to require defendant to operate an armed fortress or to provide its own police force or fire department or health department. Rather N. J. S. A. 55 :14A-11 provides only that the housing projects “shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated.”

3 Our statutes authorize the appointment of policemen only for railroads and other specified utilities, N. J. 8. A. 48 :3-38; corporations organized to hold agricultural fairs and exhibitions, N. J. 8. A. 4:15-4, 5; the owner of a stud farm who holds fairs or exhibitions, R. 8. 4:15-8, 9; and universities and other schools of learning, R. 8. 15:11 — 16 to 20.

4 Plaintiff did not contend that defendant refused to permit the city’s police department to furnish, interior, patrols. On the contrary it appears from evidence offered by plaintiff for another purpose (to prove defendant had notice of alleged criminal events) that defendant insisted the duty was the city’s but that nonetheless the Public Housing Administration, the federal agency which controlled the purse strings, was willing to consider additional expenditures if a need were shown and if it was satisfied the city was doing its share. Defendant’s corporate minutes of June 12, 1957 reveal that the subject of police protection was raised (whether as to the nighttime only or to the daytime as well, we cannot tell). Commissioner Spatola, speaking of defendant’s projects generally, said he found a need “of a mobile police force for Newark Housing — -uniformed guards properly trained and sworn in,” and offered a resolution which recited that “the Newark Police Department is under no statutory duty to offer to the Housing Projects interior patrols.” The resolution was not seconded. Other commissioners expressed their views. One said, “I am opposed to a police force over and above or supplemental to the Newark Police force which I think is doing a wonderful job.” Another said, “We asked the Newark Police Department for protection around Hayes. The crime center is not within onr project but by people who come into our project. I think we should ask our Police Department to add more police to that area.” Another said that “To put a police department of our own in there. would not be good. * * * No tenant or landlord bas his own police department, not even Parkway-Apartments, Ivy Hill or any of the larger apartments.”

At the meeting of July 10, 1957 the executive director said “we have had considerable amount of difficulty to get approval from the P.H.A. [the federal agency] for the Special Police that we have on our projects”; that since the last meeting, “I called the Regional Office and discussed the problem of more adequate policing and I was met with this response ‘that the feeling of the P.H.A. is that policing is not the primary responsibility of the Authority.’ However, they are willing to meet with the Housing Authority and representatives of the city to analyse the needs of the areas in which our projects are located to the end that the city will do its share, the Housing Authority, with the consent of the P.H.A., will do its share.” A committee was thereupon appointed to meet with the mentioned authorities.

The minutes of August 14, September 11, and October 16 reflect meetings with city officials at which proposals for sharing the problem were discussed. Mr. Hillman, apparently for the P.H.A., indicated his “approval was based on budgeting limitations, proof of need and that the city was doing all it should be doing.” The city suggested defendant retain a retired police officer to study the extent of the need, but, according to the deposition of defendant’s executive director, “we weren’t satisfied with the scope that he intended to study. So, we therefore u ent for —.” The record reveals no more, doubtless because all of the foregoing was offered solely on the question of “notice.”