Carey v. Gray

• Decision Date: 20 November 1922
• Docket Number: No. 23.,23.
• Citation: 119 A. 176
• Parties: CAREY v. GRAY et al.
• Court: New Jersey Supreme Court

119 A. 176

CAREY

v. GRAY et al.

No. 23.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1922.

(Syllabus by the Court.)

Appeal from Circuit Court, Warren County.

Action by Howard Carey against Joshua B. Gray and others. Judgment for defendants, and plaintiff appeals. Affirmed.

William C. Gebhardt & Son, of Jersey City, for appellant.

Smith & Brady, of Phillipsburg, for respondents.

KATZENBACH, J. 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 leased to the defendant John W. Flynn. Flynn employed the plaintiff, Howard Carey, to disinfect the house. Carey went to the house, which was unoccupied, at night to do this work. While thus engaged, he desired to use a toilet He found the toilet in the house out of repair and not usable. He then left the house, and discovered in the yard of the premises, a closet which in the darkness of the night, without a light, he entered. There was no floor in the closet. The plaintiff fell into the uncovered vault, and was injured. He instituted this action to recover damages for the injuries he sustained, upon the theory that the defendants were under a duty to have used ordinary care to have the closet in a reasonably safe condition for his use. The opening statement of the plaintiff's counsel is not a part of the record. There is printed, however, the colloquy between the trial judge and the plaintiff's counsel at the conclusion of the opening, in which the facts as given above were stated by the court. With this statement the plaintiff's counsel appears from the record to have acquiesced, as he immediately, after the court had restated the facts, stated his legal contention from the facts as stated by the court. The same facts are also stated in the appellant's grounds of appeal.

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. Law, 197, 112 Atl. 418, holds that a nonsuit cannot be granted on 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 affections, the plaintiff's counsel stated fully in his opening what is 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 motion, this court said:

"Where a motion to nonsuit is based on an opening statement, the plaintiff is entitled to the benefit of all facts proposed to be proved, whether contained in the opening statement or pleadings, and the reviewing court must regard them as proved."

This cannot be construed as giving to a plaintiff the benefit of facts set forth in a complaint, when in the opening statement counsel does not state that he relies upon or proposes to prove the facts set forth in the complaint. In the present case, the plaintiff's counsel in his opening did not state that he proposed to prove the facts set forth in the complaint. He made a statement of the facts he proposed to prove. Those facts were then restated by the court, and the court's statement of the facts was acquiesced in by plaintiff's counsel. This amounted to a declaration that the only facts proposed to be proved were those stated in the opening. It was, in effect, a waiver of reliance upon facts stated in the complaint and not stated or referred to in the opening. After counsel has had an opportunity of stating the facts he proposes to prove, and the court has passed upon the legal sufficiency of those facts to constitute a good cause of action, counsel cannot then fall back in the appellate court upon facts stated in the complaint to obtain a reversal of the judgment of nonsuit. Had the plaintiff's counsel in his opening stated that in addition to the facts stated he would rely upon and prove the facts set forth in the pleadings, and the plaintiffs stated a good cause of action, the case would have come within the decision of Davenport v. Holden, and the granting of the motion to nonsuit would have, under these circumstances, been error.

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 invitation, 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. Law, 307, 25 Atl. 478. In that case it was held, among other things, that an owner of lands owed no duty to those who entered and passed over the same by permission or acquiescence of the owner in such passage, except to refrain from acts willfully injurious, but that an owner or occupier of land, who, by invitation express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe. In commenting upon the duty of an owner or occupier of lands to an invitee, Mr. Justice Depue said:

"Granting that it appears that a plaintiff's entry upon premises was by invitation of the owner, a question may also arise, whether, at the time the injury was received, the plaintiff was in that part of the premises into which he was invited to enter. The owner's liability for the condition of the premises is only coextensive with his invitation.

"A person on private grounds by invitation of the owner, going by his own volition into other parts of the premises, excceeds 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. Law, 337, 51 Atl. 708, 57 L. R. A. 307. 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 and 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 closet....