Johnson v. Kolibas

• Decision Date: 12 June 1962
• Docket Number: No. A--860,A--860
• Citation: 75 N.J.Super. 56,182 A.2d 157
• Parties: Edgar W. JOHNSON, Plaintiff-Respondent, v. John KOLIBAS and Susle Kolibas, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 56

75 N.J.Super. 56

182 A.2d 157

Edgar W. JOHNSON, Plaintiff-Respondent, v. John KOLIBAS and Susle Kolibas, Defendants-Appellants.

No. A--860.

Superior Court of New Jersey Appellate Division.

Submitted on February 13, 1962.

Decided June 12, 1962.

John A. McKenna, New Brunswick, for appellants (John T. Keefe, New Brunswick, of counsel).

Seaman & Williams, Perth Amboy, for respondent (Albert W. Seaman, Perth Amboy, of counsel).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FREUND, J.A.D.

Defendants John Kolibas and Susie, his wife, owners and proprietors of a tavern and a rooming house at 41--43 Pershing Avenue, Carteret, N.J., appeal from a final judgment of $5,000 entered in the Middlesex County Court on a jury verdict in favor of plaintiff Edgar W. Johnson, one of their former roomers. Defendants also appeal from the denial of their motion for a new trial and arrest of judgment. The judgment received by Johnson was for personal injuries he sustained on December 11, 1957, while escaping from the rooming house during a fire.

The tavern is located on the first floor and is operated by John Kolibas. He and his wife maintained their living quarters in an apartment on the second floor. There were also located on the second floor six separate bedrooms, which were rented to roomers on the date of the fire, and a common bathroom located off the hall.

Frank Derczo rented a room next to Johnson's. He awoke in the early morning hours of the day in question, lit a cigarette, then left his room, closing the door behind him, to go to the common bathroom. He returned approximately ten minutes later, opened the door, and saw that his room was filled with smoke and flames. He testified that 'I just stood there for a second and I saw Mr. and Mrs. Kolibas in the hall. They asked me what was going on and I didn't know myself.' Realizing that there was a fire Derczo began to make a 'noise' and 'banged on some of the doors' of other roomers. He did not testify that he had 'banged' on Johnson's door. When the hall began to fill with smoke, he broke through a locked door at the end of the hall and went down a stairway that led to the street. Derczo stated that the hall was well lighted. He was asked if there was any obstruction between the door of Johnson's room and defendants' when he first saw them standing in the hall at their apartment door. His reply was, 'Not that I know of.'

Jacque Pinto lived in a corner room adjoining Derczo's room. He stated that he was awakened by the smoke and then heard Mrs. Kolibas shout, 'Pete, fire.' He was frightened by the fire when he opened the door to his room. He then heard Mrs. Kolibas call out, 'Pinto.' He remained by the window of his room until two firemen with a ladder assisted him out of the building through the window.

Johnson, a bartender, had returned to his room about 10:30 P.M. the evening preceding the fire. He went to bed and put out his light shortly thereafter. His room was located between Derczo's and the Kolibas' apartment. Plaintiff was aroused from his sleep, wondering why he was 'sweating, kind of hot.' He then got out of bed to go to the bathroom. Johnson opened the door leading to the hall and immediately closed it as 'the flame and smoke shot in and chased me back again.' He opened it again, but the flames and smoke were 'getting worse.' He inhaled 'a stomach full (of smoke) and nearly passed out from it.' Johnson ran across his room, opened the window, and saw flames and smoke coming 'from Derczo's window around to mine.' He explained that:

'I put my head out the window for a while and I figured somebody would come to get me out of there. But it got so hot in there that I couldn't stand it, so I put my leg out on the little roof over the door and I tried to get on there but I couldn't. The flames and heat got so bad there that I couldn't hold on no longer. I hung on the ledge and I dropped on the sidewalk there.'

Plaintiff dropped from his hanging position on the ledge, fell backwards and sustained personal injuries to his head, back and legs. He was later treated for smoke poisoning and burns at a hospital where he remained for about two weeks.

On the question of whether he received any warning as to the fire, Johnson testified on direct examination as follows:

'Q. From the time you opened your door until the time you went to the window and yelled for help before you jumped, did you see anyone?

A. I didn't see anyone.

Q. Did you in fact talk to anyone?

A. I didn't talk to anybody.

Q. Did anyone knock on your door?

A. Nope.

Q. Did anyone yell to you?

A. No.

Q. There was just utter silence?

A. That's right.

Q. Did you hear anybody talking?

A. I didn't hear anything.

Q. Did you hear any yelling?

A. Nothing.'

On cross-examination he stated that he did not see Mr. Kolibas when he went to his door because 'I couldn't see through the smoke and the flames.' Nor did he remember Kolibas speaking to him 'because I couldn't get out there to talk to anybody.'

Johnson explained that he rented his room by the week. In return for his rent defendants supplied him with a furnished room, bed linen, towel and soap. Mrs. Kolibas made his bed and 'straightened the room each day.' She also gave the room a general cleaning once a week. He was not, however, supplied with any food.

John Kolibas testified that his wife awakened him at the time of the fire, crying, 'I smell something, smoke.' He and his wife went to the door leading to the hall, and saw Johnson and Derczo standing in front of their rooms. On cross-examination he was unable to tell whether Johnson was dressed or not, and, if dressed, the clothing he was wearing. He testified that he called to Johnson, 'Eggs (his nickname), run on down (,) come on this way.' He did not see Pinto. The smoke was then concentrated near Derczo's room, but he was unable to say whether the door from Derczo's room was closed or open. Kolibas went back into his room, put on his trousers and slippers, took a box containing the tavern's receipts, and, with his wife, went out into the hall, leaving the house by the same rear exit as did Derczo. Kolibas corroborated Johnson's testimony as to the daily and weekly cleaning by Mrs. Kolibas of plaintiff's room. Mrs. Kolibas did not testify.

Michael A. Yarcheski, the health officer of the township, testified that defendants operated a licensed boarding house.

Plaintiff does not charge defendants with any negligence relating to the origin of the fire. He conceded that defendants operated 'a clean boarding house' and that the fire probably originated from a lighted cigarette in Derczo's room. The theory of liability is based on failure to warn plaintiff of the fire in order that he could have had an opportunity to escape by some means other than jumping from his window.

Defendants contend that the trial court erred in failing to dismiss plaintiff's case and in denying their motion for a new trial because: (1) plaintiff failed to prove any duty owed to him by defendants which they violated; (2) the evidence showed that defendants did not have reasonable time in which to warn plaintiff or abate the condition without jeopardizing their own lives, if any duty did exist; (3) defendants' failure, if any, to warn plaintiff was not the proximate cause of plaintiff's injuries. Defendants also allege that Johnson was a tenant, not a roomer, and therefore not owed as high a duty of care as would be owed to a roomer or lodger.

We must first dispose of defendants' contention that Johnson was only a tenant, not a roomer. One who hires a room or rooms in a building owned by another will be considered a tenant if he is to have the exclusive possession and control of the hired premises. Byrd v. Feilding, 238 S.W.2d 614, 616 (Tex.Civ.App.1951); Taylor v. Dean, 78 A.2d 382, 383 (D.C.Mun.Ct.App.1951); Carroll v. Cooney, 116 Conn. 112, 115, 163 A. 599, 600 (Sup.Ct.Err.1933); 1 American Law of Property, § 3.7, p. 192 (1952). The chief distinction between a tenant and a lodger or roomer lies in the character of their possession. The criterion is the right of exclusive possession. While the tenant has exclusive legal possession of the premises, the lodger only has the right to use the premises, subject to the landlord's retention of control and right of access to them. Stowe v. Fritzie Hotels, 44 Cal.2d 416, 421, 282 P.2d 890, 893 (Sup.Ct.1955); Roberts v. Casey, 36 Cal.App.Supp.2d 767, 771, 93 P.2d 654, 657--8 (Super.Ct.1939).

A rooming house was described in City of Independence v. Richardson, 117 Kan. 656, 659, 232 P. 1044, 1046 (Sup.Ct.1925) as follows:

'* * * a rooming house is merely a house or building where there are one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to such persons as he chooses to receive. A rooming house is not necessarily a public place to which any well-behaved person of means can go and demand lodgings as a matter of right, as he can do at a hotel. The keeper of a rooming house may receive whom he will, reject whom he will, and usually he makes special contracts with each of his guests concerning compensation and length of stay.'

Cf. Pierro v. Baxendale, 20 N.J. 17, 23--24, 118 A.2d 401 (1955). See also Cedar Rapids Invest. Co. v. Commodore Hotel Co., 205 Iowa 736, 740, 218 N.W. 510, 512, 56 A.L.R. 1098, 1101 (Sup.Ct.1928), where the court stated:

'A rooming house is usually a house where bedroom as such are furnished. It is not ordinarily expected that house-keeping, light or heavy, or the preparation or enjoyment of meals, will take place there, or that the room will be used to any considerable extent as a sitting room. * * * The room in a rooming house is usually in the immediate possession (when the occupant is not there), and dependent on the care of the proprietor.'

The characteristics normally associated with a roomer or lodger Vis-a -vis a tenant are collected in a note entitled, 'Tenant,...