98 N.J.L. 217 | N.J. | 1922
Lead Opinion
The opinion of the court was delivered by
The appeal in this case is from a judgment of nonsuit directed by the trial court to be entered upon the conclusion of the opening of the plaintiff’s case. The defendants, Joshua B. Gray and Emma I. Gray, were the owners of a house, in the town of Phillipsburg, which they
The first point made in the appellant’s brief is that the' court erred in granting the nonsuit on the opening, as the facts stated in the colloquy mentioned, plus the allegations set forth in the complaint, stated a good cause of action, and that the case of Davenport v. Holden, 95 N. J. L. 197, holds that a nonsuit cannot be granted ón the opening of counsel where the complaint states a good cause of action.
The case of Davenport v. Holden did not so hold. In that case, which was one for the alienation of a wife’s affection, the plaintiff’s counsel stated fully in his opening what it was proposed to prove. A motion to nonsuit on the opening was made on the ground the counsel’s statement had disclosed no act on the part of the defendant showing that the defendant had willfully, maliciously and intentionally alienated the wife’s affections. This was a question for the determination of the jury. In affirming the trial court’s disposition of the
This brings us to the consideration of the question whether, upon the facts stated in the opening, the nonsuit granted was proper. In this state the subject of the duty owing by owners or occupiers of lands to those who enter thereon permissively or by imitation, express or implied, has been most exhaustively and learnedly treated in the opinion of Mr. Justice Depue (afterwards Chief Justice) in the case of Phillips v. Library Co. of Burlington, 55 N. J. L. 307. In that case it was held, among other things, that an owner of lands owed
.“A person on private grounds, by invitation of the owner, going by his own volition into other parts of the premises, exceeds the bounds of his invitation, and if he does not thereby become a trespasser, goes out of the way to create a risk for himself.”
Our reports’ contain numerous cases where persons who have been invited upon premises have sustained injuries for which the owner or occupier has been held not to be responsible because the invitee has used the premises for a purpose not included within the bounds of the invitation. Such a case is that of Ryerson v. Bathgate et al., 67 N. J. L. 337. In this case it appears that Mrs. Ryerson was the owner of a cat of which she desired to be rid. She made known her desire to the manager of Bathgate & Swift’s butcher shop, who suggested that she bring the cat to the butcher shop, as his employers were in need of one. Mrs. Ryerson did so; but the cat, not, being as desirous as Mrs. Ryerson was to have its domicile changed, jumped from her arms on its arrival at the butcher shop and ran back to the home of Mrs. Ryerson. Mr. Swift, who was in the shop, suggested to Mrs. Ryerson that she make another effort at delivery. This she did, and, recalling her former experience, told the manager upon her arrival with the cat that he must put the cat in a
The case of Furey v. New York Central and Hudson River Railroad Co., 67 N. J. L. 270, is another case in'point.. The railroad company occupied a shed upon a river1 pier used for loading and unloading freight trains which were broken in order that each car might stand opposite to one of the doorways in the side of the shed. The plaintiff, a painter engaged in painting the outside of the shed, was held to have exceeded the bounds of his invitation in attempting to pass through one of the openings in a train, which opening, without warning to him, was closed by the movement of the train, catching him between the cars and injuring him.
There are numerous other cases in our reports to the same effect, but those mentioned will, perhaps, suffice to show that an invitee upon premises may by^ some act of his lose his status as an invitee and lose the right to protection against defects in the premises which as an invitee he enjoyed.
Let us then apply these legal principles to- the facts of the present case. The defendant Flynn engaged the plaintiff to disinfect the house. When the plaintiff went to the house for this purpose, he was upon the premises by the implied invitation of Flynn. Flynn owed him the duty, while engaged in his work, of exercising ordinary care to render the premises reasonably safe for the work for which he was engaged. The implied invitation to enter the house, which was an incident to the contract made between Flynn and the
As the question involved in this ease is one upon which in other’ jurisdictions there has been considerable contrariety of opinion, it may, perhaps, be interesting to call attention to a few of the leading cases in other states holding the view we adopt. In the case of Glaser v. Rothschild, 106 Mo. App. 418, the plaintiff by invitation had come to the defendant’s place of business. While waiting for the defendant to be at leisure, the plaintiff requested and obtained the key of a toilet located in the basement of the building. In going to the toilet he found the passageway blocked with boxes, and in going around them in a poor light, fell into an elevator pit. The court held that the plaintiff had become a licensee and the defendant was not liable.
In Flanagan v. Atlantic Alcatraz Asphalt Co., 56 N. Y. Supp. 18, the plaintiff was employed to haul asphalt from a yard. He left his team, and without the owner’s invitation
In Schmidt v. Bauer, 80 Cal. 565, the plaintiff was in defendant’s saloon to which which was attached defendant’s dwelling. He asked the defendant to direct him to a urinal, which the defendant did, along a public passageway. The plaintiff turned aside and entered defendant’s dwelling and was injured by a defective floor. It was held that the defendant was not liable.
In Cristiano v. Miller, 36 N. Y. Supp. 419, a plaintiff who had called at a brewery on business, and while there went in a tunnel without the knowledge or permission of the proprietor to respond to a call of nature, and was injured by the tipping of a grating covering a hole when he stepped on the grating, was held to be a licensee at the time of the injury, and not entitled to recover for his injuries from the proprietor.
Where a plaintiff has been permitted to recover for a defect in a toilet, or for injuries sustained in going to a toilet, it will be found that the invitation of the owner or occupier of the premises extended to the use of the toilet. Thus, in Philips v. Library Co., supra, the library company had permitted members of the lodge, to which the plaintiff belonged, to use the toilet to which the plaintiff was going when she fell into an excavation made in a path customarily used in going from the lodge room to the toilet.
In holding, as we do, that the nonsuit was properly granted, because the plaintiff at the time of the accident was exceeding the bounds of his invitation and was a mere
The judgment of nonsuit is affirmed, with costs.
Dissenting Opinion
(dissenting). I am unable to agree with the majority of my brethren. I think the circumstances of the case made it for the jury to say whether the plaintiff was invited to use the privy, and if he was not, whether a privy in the usual place apparently meant for the usual purposes, without a floor is not in the nature of a trap, as to1 those rightfully on the premises. Of course, this applies only to the liability of the occupant and not to the liability of the landlord. So far as the judgment in favor of the occupant is concerned, I vote to reverse. I think I am sustained by the law as stated in Poll. Torts (11th Eng. ed.) 316, 523, and cases collected in 29 Cyc. 456, 458, 469, 470.
For affirmance — The Chief Justice, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskirk, JJ. 13.
For affirmance as to judgment in favor of defendant Gray only — The Chancellor, Swayze, J. 2.
For reversal as to the judgment in favor of defendant Flynn — The Chancellor, Swayze, J. 2.