Vogel v. Eckert, No. A--480

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtPROCTOR
Citation22 N.J.Super. 220,91 A.2d 633
Decision Date22 October 1952
Docket NumberNo. A--480
PartiesVOGEL et al. v. ECKERT et al.

Page 220

22 N.J.Super. 220
91 A.2d 633
VOGEL et al.
v.
ECKERT et al.
No. A--480.
Superior Court of New Jersey
Appellate Division.
Argued Oct. 6, 1952.
Decided Oct. 22, 1952.

Page 221

Clark Vogel, Newark, argued the cause for plaintiff-appellants (Wise & Wise, Red Bank, attorneys).

Joseph Coult, Morristown, argued the cause for defendant-respondents.

Before Judges JAYNE, PROCTOR and SCHETTINO.

The opinion of the court was delivered by

PROCTOR, J.S.C. (temporarily assigned).

This is an appeal from a judgment of dismissal entered at the conclusion of the plaintiffs' case. Mrs. Vogel sought compensation for personal injuries she sustained when a bench, upon which she and others were seated, collapsed on the premises of the defendants, Mr. and Mrs. Eckert. Mr. Vogel sued Per quod.

The evidence offered by the plaintiffs may be summarized as follows: A church society, of which Mrs. Vogel and Mrs. Eckert were members, requested permission of Mrs. Eckert to hold the June meeting at her home. The meeting was to take the form of a picnic in a grove on the Eckert property. Each member 'was to bring a covered dish, enough to serve about eight or ten.' Mrs. Eckert consented to the use of her home but had nothing to do with the arrangements and entertainment, which were planned by the officers of the society.

Mrs. Eckert contributed the coffee and rolls. Mrs. Vogel brought a covered dish and acted as one of the hostesses.

Page 222

After the members and their guests were served, Mrs. Vogel sat with two other ladies on a bench at a table. One of the ladies had occasion to leave the bench. When she returned, [91 A.2d 634] she climbed over the bench and as she sat down beside Mrs. Vogel the bench broke, causing the injuries on which the action was based. Two of the members of the group testified that they examined the broken bench and found that the wood appeared to be 'rotten where the nails were pulled out.'

Mr. Eckert had built this bench and other benches in the grove about 10 or 12 years before the mishap. They were constructed of wood and had been repaired from time to time but had never been painted or treated with a preservative. There was expert testimony that the accepted standard of construction for outdoor furniture required that the wood be painted or treated with a preservative to prevent deterioration.

Plaintiffs urge that the trial court erred in holding that a Prima facie case had not been established.

Negligence can never be...

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12 practice notes
  • Wilson v. Bogert, No. 8805
    • United States
    • United States State Supreme Court of Idaho
    • December 8, 1959
    ...whom the host owes the duty of reasonable and ordinary care only. Cosgrave v. Malstrom, 127 N.J.L. 505, 23 A.2d 288; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633; Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 100......
  • Ralls v. Caliendo, No. 44597
    • United States
    • United States State Supreme Court of Kansas
    • January 21, 1967
    ...Stevenson, 137 Conn. 469, 78 A.2d 693, 25 A.L.R.2d 592; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633; Curren v. O'Connor, 279 App.Div. 1018, 111 N.Y.S.2d 714; cases collected in Note, 25 A.L.R.2d 598.) See, also, Busch v. Gag......
  • Berger v. Shapiro, No. A--101
    • United States
    • United States State Supreme Court (New Jersey)
    • June 1, 1959
    ...invitation. 2 Harper and James, The Law of Torts, § 27.11, p. 1476 (1956); Prosser, Torts (2d ed. 1955), p. 447; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952). The Restatement of Torts, § 331, defines a social guest as a gratuitous licensee. While a social guest is on the p......
  • Mistretta v. Alessi, No. A--171
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 20, 1957
    ...v. Dear, 120 N.J.L. 244, 198 A. 887 (E. & A.1938); Cosgrove v. Malstrom, 127 N.J.L. 505, 23 A.2d 288 (Sup.Ct.1941); Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952); Taneian v. Meghrigian, 15 N.J. 267, 274, 104 A.2d 689 (1954); Annotation 25 A.L.R.2d 598, 601 (1952); but see L......
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12 cases
  • Wilson v. Bogert, No. 8805
    • United States
    • United States State Supreme Court of Idaho
    • December 8, 1959
    ...whom the host owes the duty of reasonable and ordinary care only. Cosgrave v. Malstrom, 127 N.J.L. 505, 23 A.2d 288; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633; Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 100......
  • Ralls v. Caliendo, No. 44597
    • United States
    • United States State Supreme Court of Kansas
    • January 21, 1967
    ...Stevenson, 137 Conn. 469, 78 A.2d 693, 25 A.L.R.2d 592; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633; Curren v. O'Connor, 279 App.Div. 1018, 111 N.Y.S.2d 714; cases collected in Note, 25 A.L.R.2d 598.) See, also, Busch v. Gag......
  • Berger v. Shapiro, No. A--101
    • United States
    • United States State Supreme Court (New Jersey)
    • June 1, 1959
    ...invitation. 2 Harper and James, The Law of Torts, § 27.11, p. 1476 (1956); Prosser, Torts (2d ed. 1955), p. 447; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952). The Restatement of Torts, § 331, defines a social guest as a gratuitous licensee. While a social guest is on the p......
  • Mistretta v. Alessi, No. A--171
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 20, 1957
    ...v. Dear, 120 N.J.L. 244, 198 A. 887 (E. & A.1938); Cosgrove v. Malstrom, 127 N.J.L. 505, 23 A.2d 288 (Sup.Ct.1941); Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952); Taneian v. Meghrigian, 15 N.J. 267, 274, 104 A.2d 689 (1954); Annotation 25 A.L.R.2d 598, 601 (1952); but see L......
  • Request a trial to view additional results

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