On appeal from the Supreme Court, whose opinion is printed in 11 N.J. Mis. R. 688.
For the plaintiffs-respondents, Joseph T. Lieblich.
For the defendants-appellants, Mark Townsend, Jr.
The opinion of the court was delivered by
CASE, J. 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 9th, 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 had 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 ...