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Cosgrave v. Malstrom

Decided: December 29, 1941.

LILLIAN B. COSGRAVE AND PERCIVAL J. COSGRAVE, PLAINTIFFS-RESPONDENTS,
v.
HELEN MALSTROM, DEFENDANT-APPELLANT



On appeal from the Essex County Court of Common Pleas.

For the plaintiffs-respondents, Cox & Walburg (William H. D. Cox).

For the defendant-appellant, Coult, Satz, Tomlinson & Morse (DeVoe Tomlinson).

Before Brogan, Chief Justice, and Justices Case and Heher.

Case

The opinion of the court was delivered by

CASE, J. The appeal is by the defendant from a judgment entered against her following jury verdict in the Essex Common Pleas. The suit is the outcome of personal injuries received by Mrs. Cosgrave while on the defendant's premises.

Mrs. Cosgrave and Mrs. Malstrom -- indeed the two families -- had been friends and neighbors for twenty-six years. They frequently exchanged visits -- intimately passing from back yard to back yard and through the back doors. Shortly before the incident sued upon Mrs. Malstrom had purchased a form of quilt designated a "comforter" and in a telephone conversation had asked Mrs. Cosgrave to come over and see it. Shortly thereafter Mrs. Cosgrave was in her own back yard, and Mrs. Malstrom, from her back door, called to Mrs. Cosgrave to "come in now and look at the comforter." It was not a new or an unusual experience for the two to make such visits of neighborly inspection. Mrs. Cosgrave testified that when she had something that she was particularly interested in she would call in Mrs. Malstrom -- "I would ask her, yes. I would want her to see it and see if she thought I made a good choice." So, on this occasion Mrs. Cosgrave crossed from one yard to the other, entered defendant's house through the back door and kitchen and went upstairs to the bedroom where the comforter was. Mrs. Malstrom remarked that she proposed to make an additional purchase of like bed coverings and she wanted Mrs. Cosgrave's opinion to check with her own. Mrs. Cosgrave concededly did not have special knowledge; her information on the subject was simply that of the ordinary housekeeper who had bought and used such quilting. When Mrs. Cosgrave left, she undertook to leave the premises in the same way that she had entered. As she was going down the back porch steps the Malstrom dog which was tied by a leash at the side of the porch ran up the steps, made a turn about Mrs. Cosgrave and thus caused the latter to fall and to receive the injuries sued upon. The tying of the dog in a manner to permit such contact is assigned as the act of negligence upon which plaintiffs would recover. The dog was a wire-haired terrier, fourteen years old, which, to the plaintiff's knowledge, had been owned and kept by the Malstroms

for a number of years. Mrs. Cosgrave was well aware that the dog was chained most of the time and that, when chained, it was ordinarily fastened as at the time of the accident. She saw the dog coming up the steps as she was going down. No vicious propensity and no earlier occurrence of a similar mishap or of the jumping of the dog upon persons was shown. Likewise, no earlier occasion on which the dog was a menace to users of the porch was in proof. The incident occurred in full daylight.

Appellant contends that the trial court erred in refusing to grant her motion for a nonsuit. The point turns upon the degree of care that the defendant owed Mrs. Cosgrave, and the briefs of counsel tacitly concede that this depends upon whether Mrs. Cosgrave was more than what the cases -- particularly the three next cited -- call a "guest."

In Lewis v. Dear, 120 N.J.L. 244, the Court of Errors and Appeals stated the rule thus:

"It has been held that one who comes on premises by express invitation to enjoy hospitality as a guest of the owner or occupant, or a guest who enters merely to receive a gratuitous favor from the owner or occupant, has only the rights of a licensee and must take the property as he finds it."

The Supreme Court had already used the same language with approval in Gregory v. Loder, 116 N.J.L. 451. In Morril v. Morril, 104 ...


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