Sohn v. Katz

• Decision Date: 12 January 1934
• Docket Number: No. 139.,139.
• Citation: 169 A. 838
• Parties: SOHN et ux. v. KATZ et al.
• Court: New Jersey Supreme Court

169 A. 838

SOHN et ux.

v. KATZ et al.

No. 139.

Court of Errors and Appeals of New Jersey.

Jan. 12, 1934.

Syllabus by the Court.

1. The husband of the owner of the family residence, residing there with his wife and family in usual domestic intimacy, is an occupant of the property, subject to his wife's title and right of possession, and as such occupant owes no duty to a mere licensee on the premises except to abstain from acts willfully injurious.

2. The foregoing rule applies to charges of active negligence as well as of passive negligence.

3. A verdict erroneous on the theory adopted in the trial court cannot be sustained on a theory excluded in that court and which the jury had no opportunity to consider.

Appeal from Supreme Court.

Action by William Sohn and wife against Harry Katz and another. A judgment for plaintiffs was affirmed (167 A. 864, 11 N. J. Misc. 688), and defendants appeal.

Judgment reversed, and venire de novo awarded.

Mark Townsend, Jr., of Jersey City, for appellants.

Joseph T. Lieblich, of Paterson, for respondents.

CASE, Justice.

This is an appeal by the defendants, Harry Katz and Herbert Katz, father and son, respectively, from a judgment of the Supreme Court which affirmed a judgment against them in the amount of $2,335.04 entered in the Passaic county common pleas on a jury verdict. The action grew out of personal injuries received by William Sohn on September 9, 1931, in falling from a ladder which had been struck by the Katz family automobile, owned by Harry and driven by Herbert.

The Katz residence was owned by Rose Katz, wife of Harry and mother of Herbert, but not herself a party to the action. The family lived in usual intimate domestic relations and all occupied the property as a home to the exclusion, so far as appears, of all other persons, except a maid. The lot was narrow, and if the automobile was driven forward into the garage, as it had been preceding the accident, access again to the street could be had only by backing. The son had occasion to take out the car, first to go on an errand of his own, and then, in accordance with instructions given by his mother, to meet his father at the railroad station. Sohn, a house painter, was engaged in painting the house on the neighboring lot and had placed the base of his ladder on the Katz lands inside the boundary hedge and on a grassed space near the concreted drive. As Herbert was backing towards the street, the rear of the car hit the ladder, causing Sohn to fall and to receive the injuries sued upon.

The complaint was grounded in gross, willful, and malicious negligence, and the trial proceeded on that theory until the taking of the testimony had been completed. At the close of plaintiffs' case, defendants had moved, and been refused, a nonsuit. At the close of the entire case defendants moved for a. direction of verdict. The trial court considered that the proofs did not sustain the complaint and, in effect, granted the motion as directed toward the pleadings as they then were, but, of its own motion, ordered that the pleadings be amended so that the complaint would charge the defendants with the duty of using reasonable care towards the plaintiff as a licensee and the answer would deny negligence and set up as a defense that the defendants owed plaintiff no duty except to refrain from willful and wanton injury. No new or amended pleadings were actually submitted or filed. The court assumed, however, that the pleadings load been amended in accordance with its instructions and charged the jury upon the basis of the proofs already taken and the pleadings as amended.

In so ruling the court held that Herbert Katz was, at the time of the accident, acting in and about the business of his father; that the father, though the husband of Rose Katz, did not occupy the same status as the wife; and that while Mrs. Katz, as owner of the property, would have been liable only for willful and wanton acts, of which (so held) there was no evidence in the case, the husband was nevertheless under the duty of exercising reasonable care toward Sohn whether the latter was a trespasser or a licensee. The same legal concept was more succinctly stated in the charge as follows: "If he (viz., the plaintiff Sohn) came upon the premises without the consent or permission of the owner, he was a trespasser,—if he came upon the premises at his request and with the permission of the owner, he was a licensee, and in this case, it makes no difference whether he was a trespasser or a licensee, and I charge you as a matter of law, that the defendants Harry and Herbert Katz, not being the owners of the property, owed him at this time and place in question, the duty of exercising reasonable care." The case went to the jury on the further theory expressly charged by the court that "the son was the servant of the father who was the master * * *" and that Herbert Katz and Harry Katz were "the same in contemplation of law in this case." Therefore any liability of Herbert independent of the relationship of servant to his father was not before the jury and is not now in question.

Respondents now come forward with a form of amended complaint that they ask to have incorporated in the record. That request can scarcely be granted, nor indeed need it be. For the purposes of the appeal we shall assume that the pleadings were amended in the manner and to the extent directed by the trial court. Respondents also argue that the defendant Herbert Katz was guilty of gross negligence; but the jury was not permitted to consider the case on that theory, and a verdict erroneous on the theory adopted in the trial court cannot be sustained on a theory excluded in that court and which the jury had no opportunity to consider. Flammer v. Morelli, 100 N. J. Law, 314, 126 A. 307. The substantial question, amply saved by exceptions, is whether the court, in its rulings and charge, was correct in the legal proposition that Harry Katz was under the duty to exercise reasonable care towards Sohn, at best a mere licensee; for the entire case, as it went to the jury, was bound to that concept.

The general rule with regard to the duty which a landowner owes to persons coming upon his premises is that where the entry is made by his invitation, either express or implied, he is required to use reasonable care to have his premises in a safe condition; but that where the entry is made merely by his permission (and, a fortiori, where it is an actual trespass) the landowner is under no obligation to keep his premises in a nonhazardous state; his only duty to a licensee or a trespasser is to abstain from acts willfully injurious. Delaware, L. & W. R. Co. v. Reich, 61 N. J. Law, 635, at page 643, 40 A. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727; Phillips v. Library Co., 55 N. J. Law, 307, 27 A. 478. The duty of an owner, as thus stated, towards a trespasser or licensee applies also to personal property, as, for instance, to horse-drawn trucks, Hoberg v. Collins, Lavery & Co., BO N. J. Law, 425, 78 A. 166, 31 L. R. A. (N. S.) 1064, and to automobiles, Faggioni v. Weiss, 99 N. J. Law, 157, 122 A. 840, 842.

While the cases have been concerned chiefly with the liability of the owner, whether of real estate or of personal property, the principle has been applied to one who stands in the place of, or under the right of, the owner and, in some jurisdictions, quite broadly to one who is in the lawful exercise of a right superior to that of the trespasser or the licensee. 45 C. J. p. 787, states that: "Ownership of the property trespassed upon is not an absolute test, for the rule of nonliability may be successfully invoked by one who, although not the owner of the property on which the injury occurred, had rights therein superior to those of the trespasser who was injured * * *." In McManus v. Thing, 191 Mass. 362, 80 N. E. 487, where, by arrangement, no one of the various occupants of a building had the right to use a certain elevator while it was being used by another of them, and plaintiff, being a servant of one of the occupants, went upon the elevator contrary to the agreement, it was held that such plaintiff was, as to the occupant using the elevator, a trespasser or a licensee and that the one using the elevator was not liable to the plaintiff for the negligence of the user's servant in operating the elevator unless that servant acted willfully or with such reckless wantonness as to amount to willful wrong. In Dudley v. Northampton St. R. Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561, it was held that where one not licensed to drive an automobile on the highway undertook, in violation of the laws of the commonwealth, to do so, he became a trespasser as to persons lawfully using...