Barnard v. Trenton-New Brunswick Theatres Co.

• Decision Date: 27 October 1954
• Docket Number: TRENTON-NEW,No. A--489,A--489
• Citation: 108 A.2d 873,32 N.J.Super. 551
• Parties: Ruth BARNARD, Plaintiff-Appellant, v.BRUNSWICK THEATRES COMPANY, a corporation of the State of New Jersey, and Fred G. MacKenzie and Joseph D. MacKenzie, partners, trading as Fred G. MacKenzie Company, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 551

32 N.J.Super. 551

108 A.2d 873

Ruth BARNARD, Plaintiff-Appellant, v. TRENTON-NEW BRUNSWICK THEATRES COMPANY, a corporation of the State of New Jersey, and Fred G. MacKenzie and Joseph D. MacKenzie, partners, trading as Fred G. MacKenzie Company Defendants-Respondents.

No. A--489.

Superior Court of New Jersey Appellate Division.

Argued Oct. 11, 1954.

Decided Oct. 27, 1954.

Stephen V. R. Strong, New Brunswick, for appellant (Strong & Strong, New Brunswick, attorneys).

Victor C. Hansen, Newark, for respondent Trenton-New Brunswick Theatres Co. (Cox & Walburg, Newark, attorneys).

John C. Stockel, Perth Amboy, for respondents Fred G. MacKenzie and Joseph D. MacKenzie, partners, trading as Fred G. MacKenzie Co.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The plaintiff's personal injury action was dismissed as to all defendants on motion at the close of her case. She now appeals.

The defendant, Trenton-New Brunswick Theatres Company, owns and operates a moving picture theater at 17 Livingston Avenue, New Brunswick, N.J. Immediately adjoining the public sidewalk is an outer vestibule about 12 feet in length covered with rubber matting. At the end of this vestibule there are six transparent glass doors through which entrance is made to the inner lobby. The dimensions of this interior lobby are not given but the picture introduced in evidence shows it to be a quite sizeable one. It is carpeted from wall to wall. The walls are titled and judging from the picture contain some posters relating to current or future pictures. On the right side for one entering, a glass windowed box office is located. At the end of this lobby are six solid doors which lead into a portion of the theater where the seats are located and the picture is shown.

The plaintiff, Mrs. Ruth A. Barnard, who was 76 years of age at the time of the accident, January 14, 1953, resided at 116 Livingston Avenue, apparently a short distance from the theater. She had been attending moving picture performances there for many years and had been in the lobby 'many, many times.' She preferred the afternoon performances over those of the evening. The afternoon shows did not start at the same time; she said that they begin irregularly at 11:55 a.m., 12:00, and sometimes 12:15 p.m.

On January 14, 1953, at about 11:15 or 11:30 a.m., she entered the main or interior lobby through one of the glass doors for the purpose of inquiring as to the time the matinee began that day. Before entering she saw three men in the interior lobby near the solid doors already described, and she thought they might be able to give her the desired information. She knew that the picture was not on at that time.

She walked through the glass door which was open, up to the three men and made the inquiry she had in mind. One of the men answered, saying they were just workmen and were unable to tell her. At this, she turned to her right to leave and her left foot struck a five foot ladder which was lying on the lobby floor and which she had not seen. As a result she fell and suffered the injuries for which the suit was brought. She did not remember whether there were lights on, but it was a bright, sunny day and there was sufficient light from the outside to enable her to see where she was going.

The ladder which caused the fall was owned by the defendants Fred G. MacKenzie and Joseph D. MacKenzie, trading as Fred G. MacKenzie Company. Two workmen of that company were engaged in repairing one of the entrance doors and they had used the ladder in taking down the door. One of these workmen was called as a witness by the plaintiff to prove ownership and use of the ladder. In the course of examination by counsel for the MacKenzies he maintained that they were working on the glass doors and not the solid ones on the inside of the lobby and that the fall occurred on the rubber matting outside the glass doors.

With the proof in this posture, the trial court dismissed the action on the ground that no negligence had been shown on the part of any of the defendants.

The first consideration on this review must relate to the status of the plaintiff on the theater premises at the time of her fall. Was she an invitee or licensee? If a licensee, manifestly she cannot recover against the owner because the record is barren of evidence of wilful or wanton injury. In view of the result hereafter stated on the subject of invitation, it is not necessary to consider whether the duty of an independent contractor toward a licensee would be any greater than that of the owner. See Sohn v. Katz, 112 N.J.L. 106, 109, 169 A. 838, 90 A.L.R. 880 (E. & A.1933); Freidman v. Snare & Triest Co., 71 N.J.L. 605, 61 A. 401, 70 L.R.A. 147 (E. & A.1905); 65 C.J.S., Negligence, § 24n.

The evaluation of the proof must be engaged in with an awareness that all of the facts and the inferences therefrom must be accepted in the most favorable light to the plaintiff. Larocca v. American Chain and Cable Co., 13 N.J. 1, 97 A.2d 680 (1953).

Plainly, plaintiff's appearance in the lobby was not in response to an express invitation. But was there an implied invitation?

The test generally applied in deciding the question is whether the entry upon the premises was for a purpose directly or indirectly connected with the business carried on there by the occupier, or was of interest or advantage to the occupier, or was in pursuance of an interest or advantage which is common or mutual to the occupier and to him who enters. Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841 (1954); Lewin v. Ohrbach's, Inc., 14 N.J.Super. 193, 82 A.2d 4 (App.Div.1951); Walec v. Jersey State Electric Co., Inc., 125 N.J.L. 90, 13 A.2d 301 (Sup.Ct.1940). Smigielski v. Nowak, 124 N.J.L. 235, 11 A.2d 251 (Sup.Ct.1940); Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170 (E. & A.1936); MacDonough v. F. W. Woolworth Co. 91 N.J.L. 677, 103 A. 74 (E. & A.1918); Nolan v. Bridgeton & Millville Traction Co., 74 N.J.L. 559, 65 A. 992 (E. & A.1907); 65 C.J.S., Negligence, § 43(3), pp. 511, 512; 38 Am.Jur., Negligence, § 99. If the proof shows such purpose, an implied invitation has been established.

Our cases, with one exception (Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179 (E. & A.1917)), have taken a liberal view as to the scope of the implied invitation extended by operators of businesses. It has been held to extend to a person who enters 'with a vague purpose of buying' if something took her fancy (MacDonough v. F. W. Woolworth Company, supra); to a child entering with his parent who intends to make a purchase for him (Feingold v. S. S. Kresge Co., supra); to a child who accompanies a parent on a mission connected with the business of the occupier but in which the child had no direct interest (Smigielski v. Nowak, supra), or where the interest being served by the presence of the child and parent in the store is that of the family as well as the merchant (Murphy v....