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Bacak v. Hogya

Decided: May 8, 1950.

ELIZABETH PASTOR BACAK, PLAINTIFF-RESPONDENT,
v.
JOSEPH HOGYA, DEFENDANT-APPELLANT



On appeal from the Middlesex County Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Ackerson, J.

Ackerson

This is an appeal from a judgment of the Middlesex County Court in favor of the plaintiff upon the return of a jury verdict for $3,500. The appeal was taken to the Appellate Division of the Superior Court and while pending there it was certified here on our own motion.

The action was brought to recover damages for injuries suffered by plaintiff by reason of a fall alleged to have been caused by the negligence of the defendant, an independent contractor, in the removal of cellar stairs. The plaintiff lived with her mother, Mary Pastor, in the mother's home, a two-family frame house in Woodbridge. They occupied the first floor apartment and a married sister lived on the second floor. The State Highway Department needed the land and arrangements were made for the removal of the house to another location some distance away.

A day before the house mover was to come to actually move the structure, the owner, Mrs. Pastor, entered into an agreement with the defendant contractor, Joseph Hogya, to prepare the house for removal. The contract provided, inter alia, that the defendant remove certain stairs leading from a spare room on the first floor of the premises to the cellar and for their replacement when the house was set on the new location. There is no dispute as to the terms of the contract which was not put into evidence because this litigation is concerned

only with the stipulation for the removal of the cellar stairway. The only parties to the contract were the defendant and Mrs. Pastor, the owner of the house.

On the same day this contract was made, defendant removed the cellar stairs. The plaintiff's mother, knowing the work was in progress, locked the door leading from the first floor to the cellar and left for Perth Amboy taking the key with her, although usually the key was left in the lock. When she returned home the stairs had been removed.

The plaintiff returned home from work about 5:30 or 6 o'clock that evening. She noticed that the windows had been taken out and that the building was being readied for its removal the next day. Plaintiff then entered the first floor apartment and not finding her mother there went to the sister's apartment on the second floor where she found the mother resting on a couch. Thereafter plaintiff went back to the first floor apartment and attempted to go down into the cellar where the kitchen was located. Finding the door locked, she opened it with her own key. As plaintiff stepped forward in the doorway to reach the electric light switch, she fell to the cellar floor because the stairway had been removed.

The trial court denied defendant's motions for dismissal and the case was submitted to the jury which returned a verdict in favor of the plaintiff.

Several grounds for reversal of the judgment below are urged by the defendant.

The main question involved is whether the defendant owed any duty to the plaintiff as a matter of law. The contention advanced, which underlies much of the reasoning in the defendant's brief, is that the plaintiff cannot sue on a duty arising out of a contract to which she was a stranger. It is argued that in order for a legal duty to spring from a contract there must be existent some privity between the plaintiff and the party charged with its violation. Defendant cites a line of case notably Marvin Safe Co. v. Ward, 46 N.J.L. 19 (Sup. Ct. 1884), and Styles v. Long Co., 70 Id. 301 (E. & A. 1903), in support of this proposition.

These cases announce the settled rule that a person not a party to a contract, nor in privity thereto, cannot sue in respect to a breach of a duty arising out of the contract. Miller v. Davis and Averill, Inc., 137 N.J.L. 671 (E. & A. 1948).

However, the distinguishing feature in the instant case is that the plaintiff's right of action is not predicated upon the defendant's violation of any contractual obligation but is based upon the tortious conduct of the defendant contractor in the performance of his work. This distinction is fundamental, otherwise a person injured by reason of the negligence of an independent contractor could have no redress for his injury unless he was a party to the contract between the contractor and the person for whom the work was being done, no matter how great the contractor's negligence might be. The liability of the defendant arises ...


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