Smigielski v. Nowak

• Decision Date: 13 February 1940
• Docket Number: No. 409.,409.
• Citation: 124 N.J.L. 235,11 A.2d 251
• Parties: SMIGIELSKI et al. v. NOWAK et al.
• Court: New Jersey Supreme Court

11 A.2d 251

124 N.J.L. 235

SMIGIELSKI et al.

v. NOWAK et al.

No. 409.

Supreme Court of New Jersey.

Feb. 13, 1940.

Appeal from First Judicial District Court, Union County.

Action by Raymond Smigielski, an infant by his next friend Paul Smigielski, individually, against Paul Nowak and May Nowak, first name being fictitious and unknown to the plaintiffs, to recover for injuries caused by a dog. From a judgment for the plaintiffs, defendants appeal. Appeal dismissed.

Argued October term, 1939, before TRENCHARD, CASE, and HEHER, JJ.

James T. Kirk and Leo B. Wojcik, both of Elizabeth, for plaintiffs-respondents.

Joseph J. Mutnick, of Plainfield, for defendant-appellant.

CASE, Justice.

This is an appeal from a judgment for the plaintiffs and against the defendant in the District Court of the First Judicial District of the County of Union. There is an agreed state of case which recites the plaintiff's proofs as follows: "Evidence on the part of the plaintiff was that the infant was riding along a road with his father, mother and aunt. His father noticed the defendant's tavern and decided to stop for a few drinks. He drove to the rear of said tavern to the parking space; at the entrance of said parking space a sign exhibited which said 'Drive In'. The car was stopped at the parking space and the father entered the tavern alone through a rear entrance from the parking space. A few minutes later the infant plaintiff responded to a call of nature, left the car and walked towards a barn about twenty-five feet away from where the car was parked. As he approached the barn, a chained dog jumped upon him inflicting the injuries."

The stipulation further recites that the evidence on the part of the defendants was "that the parking space was open to the customers of the tavern. That on the barn facing the parking space was a sign which read 'Dog—deware' but plaintiff denied seeing such a sign. The dog was chained to the barn and could only move eight (8) feet to the end of the chain. That the way to the barn from the parked car did not lead to any entrance of the tavern. That the barn was not used for the business or for the customers of the tavern." After plaintiffs' evidence was in, appellant moved for a nonsuit upon the grounds that the infant plaintiff (1) was not an invitee and (2) if an invitee exceeded the scope of his invitation; and at the close of the case appellant moved for a direction of verdict upon the same grounds. Both motions were denied. Exceptions to the rulings were asked and granted. The court gave judgment for the plaintiffs against the defendant appellant, and to that ruling an exception was prayed and granted.

We have included in the foregoing references all of the contents of the agreed state of case. It is essential that this court be given, on the appeal, a specification of the determinations or directions of the District Court with respect to which the appellant is dissatisfied. Supreme Court Rule 145, N.J.S.A. tit. 2. We have received nothing of the kind. The points argued on behalf of appellant are:

"1. Plaintiff was not invitee in accordance with Public Laws, 1933, Chapter 427, page 1147.

"2. If plaintiff was invitee, he exceeded the scope of his invitation."

If it be that these are presented as the determinations complained of, we note that the objections...