Grugan v. Shore Hotels Finance & Exch. Corp.

• Decision Date: 04 February 1941
• Docket Number: No. 41.,41.
• Citation: 126 N.J.L. 257,18 A.2d 29
• Parties: GRUGAN v. SHORE HOTELS FINANCE & EXCHANGE CORPORATION.
• Court: New Jersey Supreme Court

18 A.2d 29

126 N.J.L. 257

GRUGAN

v. SHORE HOTELS FINANCE & EXCHANGE CORPORATION.

No. 41.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1941.

The CHIEF JUSTICE, and DONGES and HEHER, Justices, and WOLFSKEIL, Judge, dissenting.

Appeal from Supreme Court.

Action by Alice Grugan against the Shore Hotels Finance & Exchange Corporation, a New Jersey corporation, for injuries sustained when struck by falling plaster. From a judgment of nonsuit, plaintiff appeals. Judgment affirmed.

Altman & Backer, of Atlantic City, for plaintiff-appellant.

Cole & Cole, of Atlantic City, for defendant-respondent.

WELLS, Judge.

This is an appeal from a judgment of nonsuit entered in the New Jersey Supreme Court, Atlantic County, in favor of the defendant, Shore Hotels Finance Exchange Corporation, and against the plaintiff, Alice Grugan.

From the allegations of the complaint, as amended in the course of the trial, and from the proofs, it appears that during the summer of 1937, the plaintiff rented an apartment in the New Davenport Hotel, which was operated by the defendant. At the time of the renting there was a bulge in the ceiling of the bedroom to be occupied by the plaintiff. There is evidence to show that this condition had existed the previous year when the plaintiff occupied the same room. There is also evidence that Miss Grugan had from time to time requested that the ceiling be repaired.

On the morning of August 25, 1937, part of the ceiling fell down, and the plaintiff, who had been in the other room of the apartment, rang for the manager. Eventually this call was answered by a Howard Rothmen, the son of the man named on the hotel stationery as managing director.

The plaintiff's testimony is that upon Rothmen's arrival, she said to him: "Look, the mess we are in, as many times as you have been told about this ceiling." He replied, "We will take care of it," and sent the colored boy out for a ladder, adding, "It will be taken care of right now." The colored boy brought the ladder, and Rothmen got up on the ladder and "took the plaster down with his hand, which fell to the floor—the remaining part of the plaster that was loose." He then said to the bellboy: "Clean this mess up and get the vacuum cleaner and clean it up." This the bellboy did. The plaintiff said, however, the plaster still looked loose to her and for that reason she asked Rothmen as he was going out: "Is it going to be safe to sleep in this room tonight?" And he said: "Don't worry about it. There is no more coming down. It is safe, because I took the plaster down."

Later that afternoon the plaintiff was dressing for dinner when something struck her on the head and knocked her down, at which time she sustained the injuries complained of here. Her sister, who was in the room at the time, did not see the plaintiff struck, but heard her cry out and saw her slump to the floor. The sister also testified that there were several pieces of plaster on the floor which had not been there before the plaintiff fell down.

This action was originally predicated on the theory that the plaintiff was a guest in the hotel and that the defendant was under a duty to keep the premises in a condition reasonably safe for her occupancy. In the development of the case, however, it became apparent that the true relationship of the parties was one of landlord and tenant. Accordingly, over objection of defendant's counsel, the complaint was amended so as to charge the defendant with having undertaken repairs which were made in such a negligent manner that the plaintiff was injured as a result thereof.

Ordinarily a landlord is not under any duty to make repairs to the leased premises unless such duty is assumed by the contract of letting. However, there is a well established rule that if a landlord actually undertakes to make repairs, although not required to do so by contract, he is bound to perform the work in a reasonably careful manner. Nilsson v. Abruzzo et al, 107 N.J.L. 327, 153 A. 486. This rule arises from the common law doctrine that "one who undertakes to perform an act and performs it negligently whereby damage results is liable for his misfeasance." La Brasca v. Hinchman, 81 N.J. L. 367, 79 A. 885.

The plaintiff contends that from testimony produced at the trial it could be reasonably inferred that the defendant, through its agent, had undertaken repairs and that the work was performed in a negligent manner to the plaintiff's injury. Certain cases are relied upon to support this contention and should be briefly reviewed as an aid toward the disposition of this appeal.

Particular weight is attributed to the case of Edwards v. Stein, 121 N.J.L. 233, 2 A.2d 44. Here the plaintiff occupied the lower floor of a two-family house, and the ceiling had been weakened by the effects of a fire on the floor above. The landlord brought in a mechanic to inspect the ceiling and was informed by him after an examination that it would be necessary to put in a new ceiling. The mechanic and the landlord were not in accord as to the price to be charged. The following day the landlord returned with a piece of board, explaining that this was to hold up the ceiling "until I get a man to fix it," and nailed it across the damaged part of the ceiling. Later that day or the next the landlord removed the board. Nothing further was done about curing the obvious dangerous condition and two or three days later the ceiling fell and the plaintiff was injured. A nonsuit was allowed at the trial, but this was reversed by the Supreme Court on the ground that the jury could have found that the landlord undertook repairs and his negligence in so doing had resulted in the injury.

In the case of Nilsson v. Abruzzo, supra, the plaintiff was the patron of a barber shop and was injured by the falling of a radiator. Testimony was introduced to show that the landlord, in making alterations to one of the walls, had caused an added strain to be placed upon the supports of the radiator so that it fell. This was found sufficient by this court to support a recovery on the...