On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt and Justices Case, Heher, Wachenfeld and Ackerson. For reversal -- Justices Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J.
[7 NJ Page 104] The plaintiff was the guest of the tenant occupying a suite of rooms in the defendant's apartment house. He was injured when a water heater exploded. The heater consisted of a coal-burning stove with a water jacket connected, by pipes and fittings, to the mains which supplied water for the apartment building. The water was not paid for by the tenant and a fair inference from the proof is that it was supplied by the landlord. When a fire was maintained in the stove, water was heated in the jacket and flowed into a storage tank, forming a hot water supply for the apartment.
The stove, water jacket and storage tank were located in the tenant's kitchen.
The stove had been rumbling and shaking when heated over a period of two months or more. A complaint by the tenant to the defendant's predecessor in title resulted in repairs which effected a temporary improvement in its operation. It soon reverted, however, to its menacing ways and the tenant, when the defendant inspected the building prior to purchasing it and later after the defendant had acquired the building, informed the new owner of the condition of the stove. On the latter occasion, which occurred about three weeks before the accident, the defendant promised to make the necessary repairs.
No repairs were made and one morning as the plaintiff was walking by the lighted stove, it exploded, breaking his leg and causing other injuries which hospitalized him for approximately four months. He brought this action against the defendant as owner of the apartment house, alleging, in one count, negligence and, in another, maintenance of a nuisance.
The case was tried before a jury. The plaintiff, together with the tenant and his wife, testified to the events herein narrated and to the additional fact that after the accident a new stove and water heating equipment were installed by the defendant at his own expense. An expert gave it as his opinion that the condition of the stove, as described in the evidence, and the resulting explosion were due to a clogging of the water jacket and connecting pipes by rust and sediment which impeded the proper circulation of the water.
At the conclusion of the plaintiff's case, the defendant moved for a dismissal of the complaint. The trial court granted the motion, expressing its reluctance to do so but holding itself bound by Clyne v. Helmes, 61 N.J.L. 358 (Sup. Ct. 1898).
In Clyne v. Helmes the sister, who was a permanent member of the tenant's household, was denied recovery against the owner when she was injured by the falling of a marble mantelpiece, the unsafe condition of which had been called to
the attention of the landlord, who promised to repair it. The court held there was no consideration for the landlord's promise since it was made after the tenant had entered upon the lease, and held further that in any event the sister would not be entitled to recovery since she was not in privity of contract with the owner.
This doctrine has been the subject of much discussion and comment both at the trial level and in the appellate courts. It has been debated many times and the judicial views supporting and opposing it have been expressed and recorded. In Colligan v. 680 Newark Ave. Realty Corp., 131 N.J.L. 520 (E. & A. 1943), the court considered the question and was equally divided.
The challenge of the Clyne doctrine, however, has been by-passed as the Appellate Division held, and properly so, that it was not applicable to the present litigation, determining the case sub judice was not founded upon contract but upon retained control and the duty imposed upon the landowner by statute. It reversed the judgment for the defendant and held there was sufficient evidence to justify submitting to the jury the question whether the landlord retained control of the fixtures in question and the consequent ...