Morril v. Morril

• Decision Date: 29 May 1928
• Citation: 142 A. 337
• Parties: MORRIL v. MORRIL.
• Court: New Jersey Supreme Court

142 A. 337

MORRIL

v. MORRIL.

Court of Errors and Appeals of New Jersey.

May 29, 1928.

The Chancellor, and Parker, Kalisch, and Kays, JJ., dissenting.

Appeal from Supreme Court.

Action by Horace Morrll, by his next friend, against Florence Morril. Judgment for the defendant, and plaintiff appeals. Affirmed.

Edward Sachar, of Plainfield (W. S. Angleman, of Plainfield, of counsel), for appellant.

McDermott, Enright & Carpenter, of Jersey City, for respondent.

MINTURN, J. Upon the following state of facts the plaintiff was nonsuited at the union circuit:

The plaintiff, Horace Morril, a boy of thirteen years, was a guest at the house of his aunt, the defendant Florence Morril, in November, 1926. She told him to go in the back yard to play, and he went and played catch football with several other boys there. He had never played there before. He caught a forward pass about three or four feet from the garage, when a door of the garage was blown open by the wind, and a bent, defective latch hit him in the eye, resulting in the loss of the eye. Defendant knew about the defective latch, and her husband had tried just previously to fix it, but, instead, had made it worse, and he intended getting a new latch. The door was a little open when play began, and one of the boys closed it, but the defective latch did not hold it against the wind.

It becomes manifest from a recital of these facts that the sole inquiry presented is whether an issue of fact was thereby developed which required the submission of the case to the jury:

While the rule is fundamental based upon the settled maxim of the common law 'Ad questionem facti non respondet judice," it has also its corrollary and necessary adjunct "Ad questionem legis non respondet juratores." Evincing the well-defined respective jurisdictions of court and jury, it becomes obvious that, where there is no dispute upon the facts, and no factual issue for the jury to consider, the definitive line of demarcation has been reached where the power of the jury to determine conceded facts cannot be legally involved, since there is nothing for them of an issuable character to consider. Obviously, in such a situation, the duty of invoking the rule of law devolves, not upon the jury, but upon the court, and in that manner declaring the judgment which the law imposes. It has been upon this legal theory of our dual system of procedure that nonsuits have been immemorially asked at nisi prius, and that verdicts have been vindicated and judgments absolute ordered upon rule to show cause.

Thus in Parks v. Ross, 11 How. 362, 13 L. Ed. 730, it is declared:

"In some of the states it is the practice, after the evidence for the plaintiff is closed, for the defendant to pray the court to instruct the jury that there is no evidence upon which they can find a verdict for the plaintiff. This is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as a foundation of a verdict for the plaintiff."

Obviously, a juncture may be reached in any presentation of facts where the inquiry becomes, not one of disputed fact for a jury to consider, but one of uncontradicted facts, upon which the legal inquiry must be predicated whether, conceding everything advanced in behalf of the plaintiffs case, a legal liability may be evolved as the basis for a judgment. And manifestly, when such a juncture is reached, the question becomes one of law for the consideration and application of the court. Quinn v. West Jersey, etc., R. R. Co., 78 N. J. Law, 539, 74 A. 456.

To create a legal liability upon the part of a defendant, there must be something more apparent in the case than mere physical damage; there must exist, under the well-settled rule of tort liability, legal damages resulting from what has been scientifically termed a legal injury. In other words, the two elements of tort feasance according to the civil and common law commentators must concur, "Damnum et injuria." It is upon the recognition of that fundamental rule that the uniform rule of English and American law has been predicated that the mere occurrence of physical injury involves no presumption of a legal injury with its consequent legal liability. This basic conception of the law has also given rise to the rule of damnum absque injuria under which the physical damage is apparent, but the legal injury is not apparent. Hummer v. Lehigh Valley R. R., 75 N. J. Law, 703, 67 A. 1061; Kingsley v. D., L." & W. R, R. Co., 81 N. J. Law, 536, 80 A. 327, 35 L. R. A. (N. S.) 338; Fielders v. Ry. Co., 68 N. J. Law, 343, 53 A. 404, 54 A. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552; Johnson v. Ry. Co., 83 N. J. Law, 647, 85 A. 165.

Thus observes Blackstone:

"Though there may be damages sufficient, yet if the fact be true it is damnum absque injuria, there is no injury (legal) the law gives no remedy." 3 Comm. 125.

So Dr. Luddington, an eminent commentator upon English law, recognized by Kent and others, observes:

"It is essential to an action in tort that the act complained of should under the circumstances be legally wrongful as regards the party complaining. That is, it must prejudicially affect him in some legal right Merely that it will, however, directly do him harm is not enough. Cases are of daily occurrence in which the lawful exe'rcise of a right operates to the detriment of another without being actionable" — citing Rogers v. Rajendro Dutt, 8 Moo. Ind. App. 103.

In consonance with this basic theory of legal injury, American commentators have similarly declared:

"The law does not infer that merely because one man has suffered harm he must have compensation and some other must pay. The monstrous task of ensuring against all loss has not been undertaken. On the contrary not only have large and important classes of losses been denied judicial recognition, but the very nature of many admitted rights necessitates that much harm should go uncompensated." 1 Jaggard on Torts, 89, citing Tucker v. Drake, 11 Allen (Mass.) 145; O'Donnell v. Segar, 25 Mich. 367; 1 Oooley on Torts, 82, and cases.

From this fundamental conception of a legal wrong or injury as the cause or basis of the legal damage has arisen the corollary or legal rule now substantially automatic! in its application, that the existing legal wrong or injury which presents the basis of the suit must be predicated upon the violation, neglect, or omission of some legal duty which was imposed upon the defendant, and which constituted the proximate cause of the damage. The cases sustaining that principle are uniform throughout the states, and numerous in this jurisdiction. Munroe v. P. R. R., 85 N. J. Law, 688, 90 A. 254, Ann. Cas. 1916A, 140; Kingsley v. D., L. & W. R. R., and cases supra.

In the latter case the court declared:

"The mere happening of an accident, without some proof of facts from which the violation of a duty due to the plaintiff by the defendant may be legitimately inferred, as a rule, will not constitute negligence."

Hence it becomes imperative before legal...