Johnson v. Bd. of Educ. of City of Wildwood

• Decision Date: 19 May 1926
• Docket Number: No. 20.,20.
• Citation: 133 A. 301
• Parties: JOHNSON et al. v. BOARD OF EDUCATION OF CITY OF WILDWOOD.
• Court: New Jersey Supreme Court

133 A. 301

JOHNSON et al.

v. BOARD OF EDUCATION OF CITY OF WILDWOOD.

No. 20.

Court of Errors and Appeals of New Jersey.

May 19, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Nellie C. Johnson and her husband against the Board of Education of the City of Wildwood. Judgment for plaintiffs, and defendant appeals. Reversed, for the issuance of a venire de novo.

S. Rusllng Leap, of Camden, for appellant.

Ralph W. Wescott, of Camden, for respondents.

PARKER, J. The defendant, board of education, built a schoolhouse for the education of colored children, and employed the plaintiff James A. L. Johnson as janitor. By some express or tacit arrangement, he was allowed to substitute his wife, Nellie C. Johnson, to attend to some of the duties of janitor, and while she was working as such substitute in the basement of the building she sustained personal injury for which she seeks in this suit to hold the board in damages, her husband joining his claim per quod. The complaint charged, and the evidence showed, that the board had stored a considerable quantity of coal, some 60 tons or more, in part of the basement for use as needed, and to keep it in place had caused to be built a wall some 24 feet long, crossing the basement, and some 7 feet high from floor to ceiling beams, behind which wall was piled the coal to a height in places of C feet. The complaint charged negligence in the construction of the wall, which seems to have been only 4 inches thick, of large hollow slabs of some composition, set on edge and cemented in place; and also negligence in piling such a quantity of coal back of it as would tend to break it down. There was evidence that the wall began to bulge, and that this was observed and reported to the authorities, who had it braced by some inclined braces of ordinary studding. It finally collapsed while Mrs. Johnson was near by, and she was injured.

At the trial, defendants argued for a nonsuit, and claimed that if Mrs. Johnson was a servant or employee of the board she was barred of recovering damages by the elective provisions of the Workmen's Compensation Act (P. L. 1911, p. 134), which by Supplement of 1913, P. L. p. 230, was expressly made applicable to employees of municipalities, including boards of education eo nomine; and if not such servant or employee, the defendant, being a public body, owed her no duty beyond that due to the public at large; and that under the rule originally laid down in Freeholders v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530, and reiterated in a multitude of later decisions, the board was not liable to her for negligence in either the construction or maintenance of the wall or the storing of the coal. The trial judge took the view that, by accepting the services of Mrs. Johnson, the board was laid under a specific duty of care to see to it that she sustained no injury, and accordingly denied the nonsuit, and the trial went on to a verdict and judgment for the plaintiffs.

A number of grounds of appeal are assigned and argued, but it is sufficient to say at this time that the nonsuit ought to have been granted. Since the decision in the Strader Case there have been numerous attempts to evade the rule, on the theory that the particular plaintiff was a party to whom some specific duty was owed, but in no reported case, we think, has an exception been made saving that class of cases in which there was a charge of active wrongdoing, as in Hart v. Freeholders, 57 N. J. Law, 90, 29 A. 490 (second count); Kehoe v. Rutherford, 74 N. J. Law, 659, 65 A. 1046, 122 Am. St. Rep. 411; and Jerolaman v. Belleville, 90 N. J. Law, 206, 101 A. 244. Previous to the Strader Case, it might have been argued that prisoners in a jail or the county officials in a courthouse are in a class separate from the public, and that to them some special duty is owing; but this very case was instanced by Chief Justice Hornblower in the Strader Case at page 121. The later decisions are all to the same effect. In Livermore v. Camden County, 29 N. J* Law, 245, plaintiff was a millowner whose dam was broken by a defective county bridge, and claimed damages in that right. The court said:

"The whole suit rests upon the obligation to repair the bridge, because it is a part of a public highway. The duty counted upon is a public duty. The plaintiff alleges a private injury, sustained by reason of the neglect of this public duty. It may be that this private injury is of a peculiar character, occasioned by the falling of the bridge upon the dam, instead of that sustained by one in the use of the bridge; but that cannot alter the fact that the obligation or duty neglected was public, instead of private."

In Watkins v. Freeholders of Atlantic County, 73 N. J. Law, 213, 62 A. 1134, the plaintiff claimed under a statute providing that no person shall be detained in the county jail as a witness except in certain cases, nor shall persons so detained be kept in the same apartment with or provided with the same fare as persons charged with or convicted of crime. The declaration averred that the plaintiff, having been committed as a witness, was kept in the same apartment with persons charged with crime, and provided with only the same fare, and claimed damages by reason of that fact. There was a demurrer to the declaration. On page 215 (62 A. 1135) Justice Pitney invokes the rule in Freeholders v. Strader, and the opinion concludes as follows:

"It is, however, ingeniously argued by counsel for the plaintiff in the present case that the duty imposed by section 30 of the Criminal Procedure Act [2 Comp. St. 1910, p. 1830] is not a public duty in the proper sense, but a specified duty owing from the defendant to the...