Flammer v. Morelli

• Decision Date: 20 October 1924
• Docket Number: No. 43.,43.
• Citation: 126 A. 307
• Parties: FLAMMER v. MORELLI.
• Court: New Jersey Supreme Court

126 A. 307

FLAMMER

v. MORELLI.

No. 43.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

(Syllabus by the Court.)

Walker, Ch., and Kalisch and Black, JJ., dissenting.'

Appeal from Circuit Court, Union County.

Action by Leroy Plammer, by Otto Flammer, his next friend, and by Otto Flammer individually, against John Morelli. From a judgment for plaintiff, defendant appeals. Reversed, and venire de novo awarded.

Sidney W. Eldridge, of Elizabeth, for appellant.

Thomas H. Brown, of Jersey City, for respondent.

PARKER, J. The infant plaintiff, at the time eight years and seven months old, while riding on the runboard of defendant's auto truck, which was engaged in transporting ice, fell off and sustained injury. He sued by his father as next friend (the latter also joining his claim for damages per quod, etc.) and had a verdict and judgment in the trial court. The complaint counted upon an "invitation" to ride on the truck and alleged negligence of defendant. No objection was made to it as insufficient in law (see Kennedy v. North Jersey Street Ry. Co., 72 N. J. Law, 19, 60 Atl. 40;. Hess v. Public Service Ry Co., 84 N. J. Law, 329, 86 Atl. 951), and at the trial the plaintiff undertook to show the existence of invitation express or implied. The trial judge, however, held that there was no evidence of invitation to go to the jury, but that plaintiff was merely a licensee, and that defendant could not be held in damages unless the jury should find that there was willful or wanton injury upon his part. He then went on to say that (in effect) they would be entitled to find there was willful and wanton injury in a legal sense, if they believed the boy's story that while he was on the runboard the defendant's helper was tickling him, and that in avoiding that tickling he stepped on a piece of ice, slipped, and fell; and left it to them to say "whether there was such a situation, and such a set of circumstances and conditions here, as made a duty manifest to the driver and controller of this car, that if he permitted this tickling while this boy was upon this running board, that the failure to stop that tickling, while that boy was in that condition and in that position, would have, as its natural result, the certainty or strong probability of that boy falling off that car, then his omission to perform such a manifest duty, if it so appears to you a manifest' duty, was willful injury to the boy."

This, we think, was error. In the first place, there seems to be nothing in the act of tickling, ordinarily a harmless act of teasing, to connote willful or wanton injury. The contrary has been held in cases stronger than that at bar. Tier v. Miller, 80 N. J. Law, 691, 79 Atl. 417; Hoberg v. Collins, Lavery & Co., 80 N. J. Law, 425, 78 Atl. 166, 31 L. R. A. (N. S.) 1064; Powell v. Erie R. R. Co., 70 N. J. Law, 290, 58 Atl. 930, 1 Ann. Cas. 774. In the second place, the tickling, if it occurred, was...