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Meny v. Carlson

Decided: December 18, 1950.

JOSEPH F. MENY, PLAINTIFF-RESPONDENT,
v.
CARL S. CARLSON, GRACE L. CARLSON, MAXWELL GOLBURGH AND BESSIE GOLBURGH, PARTNERS TRADING AS CARLSON COMPANY, AND BUSMAN AND ROSEN, INC., A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Law Division.

For affirmance as to all defendants -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For affirmance as to Busman & Rosen, Inc., and for reversal as to the other defendants -- Justices Case and Oliphant. The opinion of the court was delivered by Burling, J.

Burling

Judgment pursuant to a jury verdict was entered in the Superior Court, Law Division, Bergen County, on March 30, 1950, in favor of the plaintiff and against the defendants. Appeals were taken by the defendants to the Superior Court, Appellate Division; they have been certified by this court on its own motion.

The plaintiff, Joseph F. Meny, who was employed as a roofer by his brother, August H. Meny, doing business as General Roofing Co., was engaged in his usual occupation as a roofer in the erection of a dwelling unit known as Park Hill Apartments, in the Borough of Fairlawn, Bergen County, New Jersey, on November 26, 1947, when a scaffold upon which he was working collapsed, as a result of which the plaintiff fell some distance to the ground and sustained injuries. The defendant, Carlson Company, a partnership composed of the several named individuals, was the general contractor engaged in the erection of a housing project which consisted of eight dwelling units and had a contract with the plaintiff's employer whereby the latter was to do the roofing work on the project. The defendant, Busman and Rosen, Inc., a corporation

of the State of New Jersey, had a contract with the defendant, Carlson Company, to perform the carpenter work on the project.

As a result of the plaintiff's fall and consequent injury, a complaint was filed by him in three counts against the two defendants. The first of said counts was directed against the defendant, Carlson Company; the second count was directed against the defendant, Busman and Rosen, Inc.; and the third count was directed against the two defendants jointly, severally or in the alternative. The gravamen of the complaint against Carlson Company is that the latter furnished the scaffold for use by the plaintiff; that it invited the plaintiff to use the scaffold; and that it was negligent in furnishing and maintaining a defective scaffold. The gravamen of the complaint against Busman and Rosen, Inc., is that the latter erected the scaffold for use by the plaintiff; that the scaffold was negligently erected and maintained; and that the plaintiff was invited to use the scaffold by Busman and Rosen, Inc. The defendants' answers denied the allegations of the plaintiff and pleaded various separate defenses. The pretrial order limited the issues to the following:

"(a) The negligence of the respective defendants; the contributory negligence of the plaintiff.

"(b) The assumption of risk of a known danger by the plaintiff.

"(c) The status of the plaintiff as an occupant of the premises and also as to his use of the scaffold."

Motions were made by the defendants for judgments in their favor at the completion of the plaintiff's case and again at the close of the entire case. The motions were denied. The jury returned a verdict in favor of the plaintiff and against both defendants and judgment was accordingly entered. The matter is before us on appeals from that judgment.

The defendants contend that various errors were committed by the trial court, and that there was no evidence establishing any negligence on the part of the respective defendants. The points argued by the respective defendants will be considered separately.

BUSMAN AND ROSEN, INC.

This defendant first contends that judgment should have been entered on its behalf because the evidence established that the plaintiff was a licensee on the scaffold and the only duty owed by this defendant was to refrain from willful or wanton injury. This conclusion would be proper if the premise were correct. To establish the property of the premise resort must be had to the evidence. It is conceded that the scaffold was erected by this defendant and that this defendant knew the plaintiff would use the scaffold. The contract between this defendant and the Carlson Company provided, inter alia, that the scaffolding erected by this defendant was not to be removed without the consent of the Carlson Company. An inference is thus created that this defendant contemplated the use of the scaffold by the plaintiff. There was testimony that in construction work, of the nature here involved, cooperation among the various trades is customary. In support of such a prevailing custom, the evidence discloses that certain cleat boards were nailed to wooden beams on the roof by the carpenters, employees of this defendant, and were left there by the carpenters, upon completion of their work, for use by the roofers, of which the plaintiff was one, in the performance of their work. It is observed that the scaffolding was erected on the side of the building and provided a means for the plaintiff to reach the roof and make use of the cleat boards which were left there by the carpenters for the plaintiff's use and benefit. These facts are suggestive of an implied invitation by this defendant for the plaintiff to use the scaffolding as a necessary incident to the performance of his work. This is particularly true since it would be unrealistic in a project of this nature, where the work of the mechanics is overlapping, for each subcontractor to erect scaffolding solely for his own use so that several sets of scaffolding would be required to be erected for work on the same building. Moreover, there was evidence from which the jury could determine that an express invitation had been extended by this defendant, through its foreman, James Hazekamp, to the plaintiff to use

the scaffold. An express invitation was testified to on behalf of the plaintiff. It is urged by this defendant that its foreman, Hazekamp, had no authority to permit employees of other contractors to use the scaffold and that he, in fact, did not authorize the plaintiff to use the scaffold. Whether or not Hazekamp did authorize the plaintiff to use the scaffold and whether Hazekamp had authority, either real or apparent, to bind his principal in this respect were questions properly submitted to the jury under the existing circumstances. There was testimony that Hazekamp knew that the plaintiff and the other roofers, as well as the tinsmiths, were using the scaffold; that Hazekamp was in charge of the carpenters; that his job was to see that the buildings were put up in a workmanlike manner and to govern the men under this defendant's contract; and that another part of the scaffold on the same building was still being used by the carpenters at the time the plaintiff was working on the part of the scaffold which collapsed. There was sufficient evidence to justify an inference that Hazekamp had control of the facilities used by the carpenters under his jurisdiction and apparent authority to authorize the use of such facilities by the plaintiff. In Erie R.R. Co. v. S. J. Groves & Sons Co., 114 N.J.L. 216 (E. & A. 1934), the court said, at page 219:

"* * * The question in every case depending upon the apparent authority of the agent is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question; and when, as here, the party, relying upon such apparent authority, presents evidence which would justify a finding in his favor, he is entitled to have the question submitted to the jury."

A review of the evidence convinces us that whether or not the plaintiff was an invitee of the defendant, Busman and Rosen, Inc.; and if an invitee, whether this status arose through an implied or an express invitation; whether this defendant placed Hazekamp in a position of apparent authority to extend an express invitation to use the scaffold; whether an express

invitation was actually extended pursuant thereto; and whether the plaintiff was justified in relying thereon, were all questions properly submitted to the jury.

This defendant next contends that there was no evidence of negligence on its part and that the trial court erred in charging the jury that the doctrine of res ipsa loquitur was applicable to this defendant. It is, of course, basic that negligence is a fact which must be proved and which will never be presumed; nor will the mere proof of the occurrence of an accident raise a presumption of negligence. This proposition has long been established and was recently reiterated by this court in Callahan v. National Lead Co., 4 N.J. 150 (1950). However, where circumstances attending the occurrence of an accident are appropriate for the application of the doctrine of res ipsa loquitur the doctrine may be invoked for the purpose of raising an inference of negligence for ...


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