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Lewin v. Ohrbach''s Inc.

Decided: May 31, 1951.

BEATRICE LEWIN AND ALEX LEWIN, PLAINTIFFS-APPELLANTS,
v.
OHRBACH'S, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

At the close of the plaintiffs' case, the district court judge granted the defendant's motion for judgment. The plaintiffs' appeal is before us on a statement of the evidence and proceedings settled and approved by the trial judge pursuant to Rules 1:2-23 and 4:2-6.

The pertinent parts of the statement follow:

"The plaintiff-appellant, Beatrice Lewin, testified that on April 17, 1950, at noon, she accompanied her two sisters to the store of the defendant-respondent on Market Street, Newark, New Jersey, to assist one of her sisters in purchasing a coat; that the store

was of a self-service character; that she went to the basement where coats were displayed on loose hangers on double racks which she described as being 5 feet high and 8 feet long; that there were many racks with coats and that the space between the racks was 5 feet; that there were many people handling coats; that there were no salesgirls present; that the area was crowded with people; that there were many people close to her; that she could not see the floor for any distance except that in order to see anything on the floor she had to look straight down in front of herself; that there were coats on the racks and some thrown over the racks; that she tripped and fell over a hanger which she did not see and when she was picked up from the floor there was a coat hanger around her ankle; that on the day in question she did not intend to make a purchase for herself; that on other occasions she had gone into the store with no intention of making a purchase but had purchased an article while there. She had been to the store on previous occasions and it was sought to bring out from her the condition as to crowds on other occasions, but such testimony was objected to and sustained, the court stating that it was only interested in what happened on this day. She testified to her injuries and disability. There was no cross-examination.

Miss Annette Steinberg, sister of said plaintiff, testified substantially the same as the plaintiff. The court refused to permit testimony by this witness as to the crowded condition of the store on previous occasions when she was there. On cross-examination she was shown a written statement which she made in which she stated that 'the store was not crowded, no pushing or jostling.' The statement was marked Exhibit D-1 for identification. On redirect examination she testified that there were lots of people in the area of the coats.

Mrs. Sylvia Ackerman, another sister of the plaintiff, testified substantially the same as the plaintiff, except that she was [ILLEGIBLE WORD] adjoining aisle of racks and did not see her sister fall and that there were quite a few people there and people all around trying on coats.

The court granted the motion for a judgment for defendant on the grounds that no prima facie case had been set forth against the defendant and no notice to the defendant was proven."

The first question is whether plaintiff Beatrice Lewin was an invitee or a licensee. The defendant claims that she was a mere licensee, relying mainly on Fleckenstein v. Great A. & P. Tea Co. , 91 N.J.L. 145 (E. & A. 1917). The argument advanced is that a merchant's implied invitation to enter his shop extends only to a person entering with the intention of purchasing (Fleckenstein v. Great A. & P.

Tea Co. , above); a person entering with one who intends to make a purchase for him (Feingold v. S.S. Kresge Co. , 116 N.J.L. 146 (E. & A. 1936)); and a person entering for the purpose of inspecting the merchandise, with at least a vague idea of buying if a suitable article is found (MacDonough v. Woolworth Co. , 91 N.J.L. 677 (E. & A. 1918)). But the sweep of the merchant's implied invitation is not so confined. Included in the implied invitation are persons who enter on a business having a potentiality for pecuniary profit to the merchant. Cf. Prosser on Torts (1941), ch. 14, § 79, p. 637; Salmond, Law of Torts (10 th ed. 1945), p. 478; Restatement, Torts , §§ 332, 343, comment a. The Fleckenstein case, above, is not to the contrary. There, the proofs were that the injured plaintiff "Charles Fleckenstein, Jr., aged about twelve years, accompanied his friend Anthony Young, who was about fifteen years of age, into defendant's store. Young intended to make purchases, and did so, but Fleckenstein did not intend to buy anything, in fact, bought nothing and merely accompanied his friend on the latter's business." The court held that the plaintiff was not an invitee but merely a licensee, apparently because of the absence of any proof to show that the plaintiff entered on a business having a potentiality for pecuniary profit to the merchant. We find in our cases no disposition to give any broader scope to the holding in the Fleckenstein case. Cf. Den Braven v. Meyer Brothers , 1 N.J. 470 (1949); Feingold v. S.S. Kresge Co. , above; MacDonough v. Woolworth Co. , above. In the case before us, the injured plaintiff entered the shop in company with her sister, who intended to purchase, and for the purpose of aiding her sister in making the purchase. The business upon which she entered had a potentiality for pecuniary profit to the defendant; therefore, she was an invitee.

The parties agree that, as to an invitee, the following principles cited from Schumann v. Horn & Hardart Baking Co. , 8 N.J. Super. 153 ...


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