Fleckenstein v. Great Atl. & Pac. Tea Co.
| Decision Date | 19 November 1917 |
| Docket Number | No. 100.,100. |
| Citation | 91 N.J.Law 145,102 A. 700 |
| Parties | FLECKENSTEIN et al. v. GREAT ATLANTIC & PACIFIC TEA CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court.
Action by Charles Fleckenstein, Jr., by Charles Fleckenstein, Sr., his next friend, and Charles Fleckenstein, Sr., individually, against the Great Atlantic & Pacific Tea Company. Judgment of nonsuit, and plaintiffs appeal. Affirmed.
William Pennington, Charles C. Pilgrim, and Frederic C. Ritger, all of Newark, for appellants.
Edward T. Magoffin, Martin Conboy, and Edwin N. Moore, all of New York City, for appellee.
WALKER, Ch. This is an action by a son and his father for damages for injuries sustained by the son through the alleged negligence of the defendant.
The facts are these: On November 30, 1915, Charles Fleckenstein, Jr., aged about 12 years, accompanied his friend, Anthony Young, who was about 15 years of age, into defendant's store. Young intended to make purchases, and did so, but Fleckenstein did not intend to buy anything, in fact bought nothing and merely accompanied his friend on the latter's business. While Young was being waited on the store manager directed a boy to open a box of pork and beans. The opening of the box was in no wise connected with Young's purchases, and neither Young nor Fleckenstein had any interest whatever in the box. At this time Fleckenstein was standing beside Young, and the box was about three feet away from him. He was watching the boy who was stooping down to open the box on the side away from Fleckenstein. The boy proceeded to pry off the lid by inserting a hatchet under it and by striking the hatchet head with a hammer. While this was being done a fragment of metal flew into Fleckenstein's eye and destroyed the sight. At the close of the plaintiff's case the court granted a motion for nonsuit.
The question arises; Was the infant plaintiff lawfully upon defendant's premises, and, if so, was he an invitee or licensee? In our judgment he was lawfully in the store of the defendant, not as an invitee, however, but only as a licensee.
[11 Merchants invite the public to enter their stores to buy wares. It cannot be said that they invite the entrance of those who accompany them, but who have no intention of purchasing; such persons are mere licensees. While it may be that they invite those to enter, who, after inspecting their wares, may become purchasers, such an invitation did not extend to young Flekenstein, when he accompanied his friend Young into the store, as he (Fleckenstein) admittedly had no intention of purchasing anything.
This court in Saunders v. Smith Realty Co., 84 N. J. Law, 276, said, ...
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...defendant owed a duty of ordinary care insofar as the condition of his premises was concerned. Although Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179 (E. & A.1917), had earlier embraced a contrary position this court held without dissent that ......
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...to fulfill the purposes of our legal system in serving the needs of present day society. For example, compare Fleckenstein v. Great Atl. & Pac. Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179 (E. & A.1917) with Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841, 44 A.L.R.2d 1316 (1954); see Ta......
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