Petry v. Hopping

• Decision Date: 22 July 1922
• Docket Number: No. 29.,29.
• Citation: 118 A. 105
• Parties: PETRY et al. v. HOPPING.
• Court: New Jersey Supreme Court

118 A. 105

PETRY et al.

v. HOPPING.

No. 29.

Supreme Court of New Jersey.

July 22, 1922.

Action by Wilfred E. Petry and another against Prank Hopping. There was a verdict for plaintiff, and defendant moved for a rule to show cause. Rule discharged.

Argued June term, 1922, before PARKER, BERGEN, and MINTURN, JJ.

King & Vogt, of Morristown, for the rule.

Charles A. Rathbun, of Morristown, opposed.

MINTURN, J. The defendant was the owner of a country store at the village of Hanover Neck, in Morris county. About half past 9 on the night of January 27, 1921, the plaintiff Wilfred E. Petry, his cousin, a young man about 20 years of age, formed one of a group of friends who sat in the accustomed manner about the stove conversing, when an automobile drew up and stopped at the store. Three men entered, and after purchasing cigars from the defendant, who stood behind a counter serving them, one of the trio suddenly shouted, "Hands up! you are covered!" With that admonition, two of the burglars covered the plaintiff and the defendant's brother at the stove, while the third attempted to cover the defendant, but some delay, due to difficulty in drawing his revolver, enabled the defendant to drop behind the counter and eventually retreat to the kitchen, where he found a loaded gun, and, after throwing his money into an adjoining pantry, he blew out the light in the kitchen and passed to the adjoining storeroom, where he stood on guard with the gun.

While the defendant was thus intrenching himself, the burglars, doubtless alarmed by his unexpected escape, took to flight, and when they retired the plaintiff, with the defendant's brother, Wallace, left the store; the plaintiff, going back through the hallway, opened the door leading into the darkened kitchen. Without any warning the defendant, stationed at the darkened storage room, opened fire upon plaintiff, as a result of which plaintiff received the discharge of the gun in his right arm. The wound thus received necessitated the amputation of the arm, to recover damages for which physical loss this suit was instituted by Wilfred and his father, the other plaintiff. The trial at the circuit resulted in a verdict for the plaintiff, and this rule is designed to present the legal inquiries which substantially comprehend the defense.

The fundamental inquiry presented is whether, under the circumstances, the defendant is guilty, by his unfortunate and mistaken deed, of the commission of any act which may be comprehended within the legal term negligence; for manifestly, if it can be brought within the legal exceptions recognized as vis major or inevitable casualty, the defendant's act is not within the legal conception of an actionable tort. To sustain his contention the industry of counsel has failed to extract one instance from the vast, interminable plethora of national and international case law which confronts us like an endless stream. We are driven, therefore, for answer, to the basic founts of legal inspiration upon which case law presumably is constructed, and from which it is presumed to derive its stability and vitality-sources which Blackstone defines as:

"That ancient collection of unwritten maxims and customs which is called the common law, however compounded and from whatever fountain derived." Book 1, p. 20.

Among those immemorial maxims and principles is one which imposes liability upon an actor, who causes damage to another by failing to exercise reasonable-foresight for harm, in the doing of an otherwise reasonable act. Smith's Neg. 92; Addison, p. 4; 1 Street, 73. We have applied that principle in this court and in the Court of Errors and Appeals as the basic determining test in the law of negligence. Beck v. Hines, 95 N. J. Law, 158, 112 Atl. 332; Higgins v. Goereke-Krich Co., 91 N. J. Law, 404, 103 Atl. 37, affirmed 92 N. J. Law, 424, 106 Atl. 394. In the Beck Case we declared that the rationale of the rule of liability is the reasonable exercise of the foresight for harm (95 N. J. Law, 161, 112 Atl. 332); and we have held, also, that, where the testimony as to the character or quality of the care exercised in a given case is in dispute, the question is one for the jury. Munroe v. P. R. R., 85 N. J Law, 688, 90 Atl. 254, Ann. Cas. 1916A, 140.

The inquiry, therefore, Upon which the solution of this case depends, is whether, under all the circumstances and in the...