Miller v. Oscar Schmidt, Inc.

• Decision Date: 20 October 1924
• Docket Number: No. 15.,15.
• Citation: 126 A. 309
• Parties: MILLER v. OSCAR SCHMIDT, Inc.
• Court: New Jersey Supreme Court

126 A. 309

MILLER

v. OSCAR SCHMIDT, Inc.

No. 15.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

Appeal from Circuit Court, Hudson County.

Action by Margaret Miller, administratrix, against Oscar Schmidt. Inc. Judgment for plaintiff, and defendant appeals. Reversed.

Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

MINTURN, J. While some small boys were playing upon the defendant's lumber pile, adjoining, but quite apart from, the public highway, on Ferry street, in Jersey City, an employee of the defendant, with a stick in his hand, drove, or, in the language of the witnesses, "chased," the boys from the pile, one of whom, the plaintiff's decedent, a boy of eight years, ran into the street before an approaching trolley car and was killed. As to the Public Service Company, the owner and operator of the car, the jury found in favor of the company, but as to the defendant Schmidt, Inc., a verdict was found in favor of the plaintiff, from which the defendant Schmidt, Inc., appeals, contending that, in the absence of intentional malicious conduct upon the part of its employee, no legal basis of liability exists against it. The cause of action was instituted by the plaintiff, upon the theory that the mere act of pursuing the boys with a stick from the lumber pile, before an approaching trolley car was ipso facto gross negligence, and upon that theory the case was submitted to the jury. The legal right of the defendant to eject or expel from its premises mere trespassers cannot be questioned. Del., etc., R. R. v. Reich, 61 N. J. Law, 635, 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727; Friedman v. Snare & Triest Co., 71 *N. J. Law, 615, 61 Atl. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, 2 Ann. Cas. 497.

In this instance the testimony clearly indicates that the boys were trespassers. With this concession in mind, the only inquiry presented for reference to a jury was whether the mere act of warning or chasing the boys from the defendant's premises constituted such an act of gross negligence as to subject the owner of the premises to liability for the subsequent impulsive and reckless conduct of the boys in their efforts to escape. Quo animo seems to be the test applicable to such a situation. For, manifestly, to tacitly allow immature children to exercise their playfull propensities in a dangerous environment might legally charge the owner with liability as an invitee or licensee; for, as was aptly stated by Chief Justice Beasley, in Danbeck v. N. J. Traction Co., 57 N. J. Law, 465, 31 Atl. 1039, "It is the legal duty of every one dealing with a child to protect it against its own indiscretions"— citing the leading case in the English Court of Queen's Bench of Lynch v. Nurdin, 1 Q. B. 422. If, in the exercise of this legal duty, the owner of premises does not abuse the obligation thus cast upon him, but attempts to exercise it consistently with his legal right and without malice, and, in the absence of a wanton disregard of the reasonable necessities of the situation, it is not perceivable upon what legal principle liability for resulting accident, in no way due as a necessary consequence to the exercise of a legitimate act of ownership, can be...