Rosenquist v. Brookdale Homes Inc.

• Decision Date: 27 September 1945
• Docket Number: No. 19.,19.
• Citation: 44 A.2d 33,133 N.J.L. 305
• Parties: ROSENQUIST et al. v. BROOKDALE HOMES, Inc.
• Court: New Jersey Supreme Court

133 N.J.L. 305

44 A.2d 33

ROSENQUIST et al.

v.BROOKDALE HOMES, Inc.

No. 19.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1945.

Appeal from Supreme Court.

Action by Mildred J. Rosenquist and Carl O. Rosenquist, her husband, against Brookdale Homes, Incorporated, a corporation of the state of New Jersey, in voluntary dissolution, to recover for personal injuries sustained by plaintiff wife and expenses incurred by plaintiff husband as result of such injuries. From a judgment of the Supreme Court, 132 N.J.L. 531, 41 A.2d 383, affirming a judgment for the plaintiffs, the defendant appeals.

Reversed.

RAFFERTY and DILL, Judges, dissenting.

Cox & Walburg, of Newark (William H. D. Cox and Harry E. Walburg, both of Newark, of counsel), for appellant.

John Joseph Foerst, of Bayonne (Louis K. Wilder, of Jersey City, of counsel), for respondents.

COLIE, Justice.

Respondent, Brookdale Homes, Inc., appeals from a judgment of the Supreme Court affirming a judgment in favor of Mildred J. Rosenquist and Carl O. Rosenquist, entered in the Essex County Court of Common Pleas.

The facts are that the parties to this suit entered into a written contract on November 4, 1940, by the terms of which Brookdale Homes, Inc., agreed, for a consideration of $7,000, to sell to the Rosenquists a certain lot of land in the Town of Bloomfield, upon which Brookdale Homes, Inc., agreed to erect a dwelling ‘in duplicate as to design, materials and workmanship’ to a certain other specified house. The contract called for closing on January 15, 1941, but on that date the house was not completed. Title passed and the Rosenquists took occupancy on February 1, 1941 with the understanding that the house would be completed as specified. There then remained to be done certain brick veneering, grading, the erection of stoops and concrete approaches to the house and garage. Brookdale Homes, Inc. did none of the work itself but contracted with others to do it. The contract for the brickwork was contracted for with a Mr. Berkowitz and there is undisputed testimony that Berkowitz was not told how to do the work; that the manner in which it was done was left to Berkowitz. On February 17, 1941, workmen employed by Berkowitz had occasion to mix concrete and they obtained the necessary water from a faucet on adjoining premises, to which they attached a hose. During the day, there apparently was some horseplay among the workmen and squirting of water on each other from the hose, and there was also testimony that the hose was left on the ground and water therefrom flowed over planking which extended from the curb to the front door. On the afternoon of the 17th, the weather turned cold and the workmen left the job. The water froze on the planks and thereafter a slight snowfall hid from Mrs. Rosenquist the icy condition of the planks and while walking on them, she sustained a fall and consequent injuries.

At the conclusion of the plaintiff's case, a motion for nonsuit was made and properly denied, there being at that point no evidence that Berkowitz had the status of an independent contractor. On the defendant's case, there was the undisputed testimony of the president of the defendant corporation that Berkowitz was not told how to do the job but that was left entirely to Berkowitz. It was further brought out that a Mr. Grobert, also an employee of the defendant, supervised the construction of the building and that if there were any complaints in reference to the construction of the house, they were made to a Mr. Valleau, also an employee of Brookdale Homes, Inc.

The Supreme Court held that the proofs failed to support the defense of independent...