Johnson v. Zemel

• Citation: 160 A. 356
• Decision Date: 17 May 1932
• Docket Number: No. 11.,11.
• Parties: JOHNSON v. ZEMEL et al.
• Court: United States State Supreme Court (New Jersey)

160 A. 356

JOHNSON

v. ZEMEL et al.

No. 11.

Supreme Court of New Jersey.

May 17, 1932.

Appeal from Circuit Court, Essex County.

Action by George Johnson against Charles Zemel and others. From an adverse judgment against them, the defendants other than the defendant Vladimir Kussy appeal.

Affirmed.

Argued January term, 1932, before GUMMERE, C. J., and PARKER and CASE, JJ.

James F. X. O'Brien, of Newark, for respondent.

Schneider & Schneider, of Newark (Jacob Schneider and Andrew Van Blarcom, both of Newark, of counsel), for appellants.

CASE, J.

Plaintiff was injured on the evening of October 18, 1926, as he was leaving a building known as the Laurel Gardens in the city of Newark where, on admission gained by ticket, he had been a spectator at a boxing exhibition. He brought suit against Vladimir Kussy, producer of the exhibition and part-time lessee of the premises, and also against the Zemels, owners of the building. The jury awarded a verdict for the plaintiff against the owners, who now appeal. The verdict went against the plaintiff as to the defendant Kussy.

The appellants present that the court erred in refusing their motions for a nonsuit and for a direction of verdict in their favor.

A motion for nonsuit admits the truth of the plaintiff's evidence and of every inference of fact that can be legitimately drawn therefrom. Weston Co. v. Benecke, 82 N. J. Law, 445, 82 A. 878, Ann. Cas. 1913D, 11. A refusal to nonsuit for failure of proofs will not justify a reversal if the defect be supplied by evidence thereafter taken during the progress of the cause. Maudsley v. Richardson & Boynton Co., 101 N. J. Law, 561, 129 A. 139. Upon a request for a direction of verdict in favor of a defendant, the proof must be so clear that no other reasonable conclusion can be legitimately reached before such a peremptory instruction can be given. Consolidated Traction Co. v. Reeves, 58 N. J. Law, 573, 34 A. 128.

Reviewing the testimony to ascertain the aspect thereof that is most favorable to the plaintiff, we learn:

The Zemels came into the ownership of the premises on January 21, 1925. Kussy was then sublessee under one Samel. On October 14, 1926, a new lease was effected directly from the Zemels to Kussy, wherein the latter, for a fixed money rental, leased the use of the hall one night each week, commencing October 18, 1926, over a period of twenty-three weeks, for the conducting of boxing exhibitions; reserving to the Zemels, however, or to their concessionnaires, the exclusive right to sell drinks, tobacco, and refreshments, and for their servants and agents to enter the premises during performances for that purpose; also reserving to the Zemels five ringside seats at each performance. At least two of the Zemels were present at every performance. Steinmetz, manager for the owners, was also present at each performance, taking care of the heat, looking after the lights, and the like. It was he who observed that the plaintiff was injured and went to his assistance.

At one end of the hall was a removable platform made in numerous sections, supported by twelve wooden horses, and sustaining wooden benches which constituted the cheapest seats for the exhibitions, an equipment that was not and never had been owned by the Zemels. It had been acquired by the former tenant Samel to enlarge the seating capacity, of the hall, had been sold by Samel to Kussy along with the assignment of the lease, and belonged to Kussy at the time of the accident. But it was used occasionally by the Zemels for exhibitions, wrestling bouts, and otherwise, and there were times when, to enable the premises to be used for other purposes, the platform was removed by Steinmetz after Kussy's boxing exhibition and again placed in position by Steinmetz in season for the event of the ensuing week. In fact Steinmetz had set up the...