Hahn v. Rockingham Riding Stables

• Decision Date: 03 April 1941
• Docket Number: No. 18.,18.
• Citation: 126 N.J.L. 324,19 A.2d 191
• Parties: HAHN v. ROCKINGHAM RIDING STABLES et al.
• Court: New Jersey Supreme Court

19 A.2d 191

126 N.J.L. 324

HAHN

v. ROCKINGHAM RIDING STABLES et al.

No. 18.

Court of Errors and Appeals of New Jersey.

April 3, 1941.

Appeal from Supreme Court.

Action by Hazel D. Hahn against Rockingham Riding Stables, a corporation of the State of New Jersey, and another, for personal injuries allegedly sustained when plaintiff was thrown from a saddle horse hired from defendant corporation. From a judgment for plaintiff, defendants appeal.

Affirmed.

Charles I. Rosenfeld, of Paterson (Jerome J. Dunn, of Ridgewood, of counsel), for appellants.

Nathan Baker of Hoboken, for respondent.

RAFFERTY, Judge.

Respondent, as plaintiff below, instituted suit against appellants, claiming damage because of personal injuries sustained as a result of having been thrown from a saddle horse hired from appellant corporation. The matter, after trial, having been submitted to a jury, verdict in favor of respondent was given and judgment thereon entered against appellants. From this judgment appeal is made.

The first point urged for reversal is based upon alleged error of the trial court in refusing to grant a motion for nonsuit on the opening of plaintiff's counsel before the jury, the ground of the motion being that the opening of plaintiff's counsel varied from the facts set forth in the complaint. We do not have a transcript of the opening before us. However, upon colloquy between court and counsel, the matter was finally settled in this wise:

"Mr. Baker: I am willing to rest upon the theory that he should exercise reasonable care (an implied warranty, you might say) to see that the horse was reasonably fit for the purpose intended, that is, for horseback riding.

"The Court: Whether it is express or implied (not an insurance as in the case of warranty arising out of a sale) it cast upon him the duty of either knowing that fact or exercising reasonable care to know it.

"Mr. Baker: I am satisfied with that.

"The Court: Of course, you understand that rises (sic) up the ordinary defenses available in an ordinary negligence case.

"Mr. Dunn: In other words, contributory negligence would be a defense to it?

"The Court: Yes; surely.

"Mr. Dunn: If she is going on that theory."

Further, respecting this point, in its charge to the jury the court said, without objection or exception from appellants' counsel, "the plaintiff has brought her claim here upon the theory, in accordance with an amendment made verbally to the complaint and by the tacit agreement of counsel of an alleged breach of implied warranty of the fitness of this horse for the purpose for which she hired him."

Counsel having thus assented to what, in practical construction, was an amendment to the complaint, the point here made is without merit. In re Hudson County, 106 N.J.L. 62, 77, 144 A. 169.

It is opportune at this time to point out also that where there is error in the denial of the trial court of the motion to nonsuit upon plaintiff's opening, such error is cured where the evidence subsequently adduced raises a factual question sufficient to be submitted to the jury. That such is the law was suggested in this Court in Glass v. American Stores Co., Inc., 110 N.J.L. 152, 155, 164 A. 305, 306, where, speaking for the Court, Mr. Justice Parker said: "As to a refusal to nonsuit on the opening, we do not wish to be understood as subscribing to the proposition that, if the opening fails to state facts constituting the cause of action set up in the complaint, the court is irretrievably in error for refusing to nonsuit. The rule is settled, in cases where nonsuit was wrongly denied on the plaintiff resting his case, that, if facts supporting the cause of action are elicited thereafter, the error is cured. By analogy, it would seem that a similar rule should apply in cases of a deficient opening and refusal to nonsuit on that opening."

Further comment on this rule of practice was had in our Supreme Court, speaking also through Mr. Justice Parker, in Henry v. Haussling, 114 N.J.L. 222, 223, 176 A. 564. Compare, also, Bacharach v. Mitnick, 121 N.J.L. 401, 404, 3 A.2d 92. As thus laid down this rule has our approval. In the instant case it is our finding that the evidence adduced subsequent to the denial of motion for nonsuit here mentioned was sufficient to raise a jury question and, hence, assuming the denial of motion to be error, the same was cured by the establishing of a jury question.

As separate points appellants argue error in the refusal of the trial judge to grant a motion of nonsuit at the close of plaintiff's case, and error in refusing to direct a verdict in favor of defendants and against the plaintiff at the close of the evidence. These may be considered together.

Upon the plaintiff's case it was shown that appellant corporation was engaged in the business of the public hiring of riding horses and that Spellman was the manager of its place of business, as well as an officer of the corporation; that appellants previously had hired this horse to respondent and to others and that on the particular occasion complained of respondent did hire this horse from appellants for riding purposes. From this it followed that the relationship of bailor and bailee, on this contract of hire, came into being...