On appeal from the Supreme Court.
For the plaintiff-appellant, Altman & Backer.
For the defendant-respondent, Cole & Cole.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of nonsuit entered in the New Jersey Supreme Court, Atlantic County,
in favor of the defendant, Shore Hotels Finance Exchange Corporation, and against the plaintiff, Alice Grugan.
From the allegations of the complaint, as amended in the course of the trial, and from the proofs, it appears that during the summer of 1937 plaintiff rented an apartment in the New Davenport Hotel, which was operated by the defendant. At the time of the renting there was a bulge in the ceiling of the bedroom to be occupied by the plaintiff. There is evidence to show that this condition had existed the previous year when the plaintiff occupied the same room. There is also evidence that Miss Grugan had from time to time requested that the ceiling be repaired.
On the morning of August 25th, 1937, part of the ceiling fell down, and the plaintiff, who had been in the other room of the apartment, rang for the manager. Eventually this call was answered by a Howard Rothmen, the son of the man named on the hotel stationery as managing director.
The plaintiff's testimony is that upon Rothmen's arrival, she said to him -- "Look, the mess we are in, as many times as you have been told about this ceiling." He replied -- "We will take care of it," and sent the colored boy out for a ladder, adding -- "It will be taken care of right now." The colored boy brought the ladder, and Rothmen got up on the ladder and "took the plaster down with his hand, which fell to the floor -- the remaining part of the plaster that was loose." He then said to the bell boy -- "Clean this mess up and get the vacuum cleaner and clean it up." This the bell boy did. The plaintiff said, however, the plaster still looked loose to her and for that reason she asked Rothmen as he was going out -- "Is it going to be safe to sleep in this room tonight?" and he said -- "Don't worry about it. There is no more coming down. It is safe, because I took the plaster down."
Later that afternoon the plaintiff was dressing for dinner when something struck her on the head and knocked her down, at which time she sustained the injuries complained of here. Her sister, who was in the room at the time, did not see the plaintiff struck, but heard her cry out and saw her slump to the floor. The sister also testified that there were several pieces of plaster on the floor which had not been there before the plaintiff fell down.
This action was originally predicated on the theory that the plaintiff was a guest in the hotel and that the defendant was under a duty to keep the premises in a condition reasonably safe for her occupancy. In the development of the case, however, it became apparent that the true relationship of the parties was one of landlord and tenant. Accordingly, over objection of defendant's counsel, the complaint was amended so as to charge the defendant with ...