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Falk v. Unger

Decided: January 25, 1955.

HENRY FALK, PLAINTIFF-RESPONDENT,
v.
DANIEL UNGER, ALEX UNGER, T/A UNGER ELECTRICAL CO. AND LORRAINE DRESS SHOP, DEFENDANTS, AND HOLDER ENGINEERING COMPANY, INC., DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

It was the negligence of the defendant Daniel Unger that proximately caused bodily injury to the plaintiff. His negligence seems to have been imputed both to the defendants Alex Unger, trading as Unger Electrical Co., and to the Holder Engineering Company, Inc., pursuant to the doctrine of respondeat superior. The defendant Lorraine Dress Shop (really Lorraine Smart Shops, Inc.) was voluntarily exonerated from liability by the plaintiff. The jury rendered a general verdict in favor of the plaintiff against the defendants Daniel Unger, Alex Unger, and Holder Engineering Company, Inc., with an award of $15,000 damages. From the consequent final judgment only the Holder Engineering Company prosecutes the present appeal.

Most of the facts pertinent to the litigation are not in doubt and may be here expediently summarized. The Lorraine company was the occupant of a store on Smith Street in the City of Perth Amboy and had contractually engaged the Holder Company to install an air conditioner in the premises. The installation had been almost completed except for the making of the requisite electrical connections

when the inspector of the city directed the Holder Company to cease the further fulfillment of its contract because it did not possess a municipal license to perform electrical work in the city.

Mr. Holder of the Engineering Company explained his dilemma to one William Smith, who was a personal friend of the defendant Alex Unger, a licensed electrician. By reason of the endeavors of Mr. Smith, the defendant Alex Unger agreed to complete the installation of the air conditioner for the Holder Engineering Company for the cost of the workmen's insurance coverage, necessary labor and materials.

It was in the pursuit of that undertaking that Alex Unger sent his son Daniel and a helper to the Lorraine premises. The following day, April 7, 1953, while the plaintiff was walking along Smith Street in front of the Lorraine property, Daniel without warning opened the sidewalk cellar door, thereby throwing the plaintiff to the ground, from which mishap the plaintiff sustained his bodily injuries and incidental losses.

Generally stated, the question debated before us is whether there was any evidence adduced at the trial which with permissible derivative inferences legally justified the submission of the alleged liability of the Holder Company to the jury for determination.

This question arises from the denial of the motion made on behalf of this defendant at the close of the plaintiff's case for an involuntary dismissal of the alleged cause of action against it. R.R. 4:42-2(b). Such a motion is recognized as the modern substitute for the former motion for a non-suit. Morsey v. Erle , 4 N.J. 276 (1950); Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45, 49 (App. Div. 1951).

Where, as here, no motion for a dismissal of the action was made at the conclusion of the trial, nevertheless in the review of a civil action all of the competent and relevant evidence introduced at the trial will be considered in determining whether the denial of the motion at the close

of the plaintiff's case constitutes cause for reversal. Glass v. American Stores Co., Inc. , 110 N.J.L. 152, 155 (E. & A. 1933); Wright v. Lee Construction Co. , 135 N.J.L. 149 (E. & A. 1947); Beck v. Monmouth Lumber Co. , 137 N.J.L. 268, 271 (E. & A. 1948); City Nat. Bank & Trust Co. of Salem v. Hassler , 9 N.J. Super. 153, 157 (App. Div. 1950).

Then, too, the rule is applicable that all of the evidence which supports the view of the party against whom the motion is made must be taken as true, and such party must be accorded the benefit of all inferences which may logically and legitimately be ...


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