Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D. Foley, J.A.D. (dissenting).
Plaintiff Harry Handleman appeals from a judgment of the Superior Court, Law Division, dismissing his personal injury action at the close of his case against defendants Frank H. Cox and Jack A. Tillotsen, individually and t/a J & J White Diamond Co. The accident occurred on June 6, 1958, when plaintiff fell down a flight of stairs leading from the kitchen to the basement of defendants' premises.
Handleman has been employed by the Senak Corporation since May 1957 as a salesman and bill collector. Senak is a retail dealer of household goods, including silverware, electrical appliances, watches, blankets, sheets, pillow cases, dishes and lamps. Senak's representatives negotiate sales with members of the public on an individual basis and then periodically return to collect the installment payments from the buyers.
Cox and Tillotsen concede that they own and operate the J & J White Diamond Diner in Plainfield, N.J. The premises consist of a one-story diner-hamburger stand containing a dining area, kitchen and basement. The dining area and counter are in the front of the building, with the kitchen in the rear. The public enters the diner through a door that fronts on a street; a parking area surrounds the rest of the building. The only other entrance to the building is through a door in the rear of the premises.
In April 1958, approximately two months before the accident, Lloyd W. Bateman, an employee of defendants, purchased some merchandise from a Mr. Goldberg, another Senak salesman. This sale took place at the counter, as did Bateman's installment payments of $1 per week.
In May 1958 Harold L. Cox, defendant Cox's nephew and a counterman at the diner, purchased a set of silverware from a Senak salesman, but not from Handleman. He purchased the merchandise and made his weekly payments at the counter.
Handleman testified that in the course of his employment with Senak he went to the White Diamond for the first time on June 6 at about 11:30 A.M. to make collections. He explained that:
"* * * every once in a while we had new cards come into our routes which salesmen made on the outside. They come in your territory, and automatically you get those cards in your route. Whatever day it is, you get those new cards in there. At that time I had three new cards for the White Diamond."
He entered the diner through the front door and saw two of defendant's employees, Lawson and Savage, working behind the counter. Lawson was at the hamburger stand, and Savage was making coffee. There were a number of customers in the diner; "the place was full * * * all the stools were taken." Handleman introduced himself to Lawson, who inquired if he had any silverware for sale. As the result of this conversation Handleman went to his car for two boxes of silverware. Plaintiff was told by Lawson to bring the silverware into the kitchen area through the rear door.
Handleman left through the front door and removed the silverware from his car, which was apparently parked behind the diner. Each box measured about 18 inches long, 12 inches wide and 5 inches deep. He held these boxes in front of him as he approached the open rear door.
The rear doorway of the diner is located approximately in the center of the rear of the building. The door swings away from the building towards the left. Directly inside the door is a slightly raised platform, about 38 inches wide by 29 1/2 inches long. At the far end of this platform, directly opposite the doorway, is the stairway opening measuring several square feet. From that end of the platform the stairway extends down to the basement.
From the photographs received in evidence we observe that, as one looks into the building through the rear door, the opening leading to the basement is bounded, on the left,
by a wall that extends from the rear door into the kitchen and, on the right, by the kitchen floor. That floor is raised several inches above the level of the platform. The platform, as noted, forms the third or near side of the opening, while an extension of the kitchen floor forms its fourth or far side. A wooden railing about four feet high surrounds this opening on the two sides formed by the kitchen floor. The opening, however, is in no way enclosed at the top of the stairway. To enter the kitchen area from the outside, then, one must step up onto the platform, turn to the right and step up to a higher level onto the kitchen floor.
Handleman approached the open door at an angle, his left side nearest the building. As he drew near the door he observed Lawson standing by the railing. He also noticed a coffee container carton, 2 feet high and 18 to 24 inches wide, standing on the platform. He testified that, "All I seen was the box and the rail. Anything else I did not see. * * * At that time I didn't know it [the carton] was in front of the stairs, but it was right in front of the stairs and you could not see nothing." While plaintiff conceded that the carton did not cover the entire width of the passageway into the basement, nevertheless, "you could not see anything * * *." Handleman then stepped up on the platform and
"went to my right, where Mr. Lawson was standing there. There is a little rail there. He told me to put the two sets of silverware down, which I did. Doing that, I just made one move, and down the stairs I went. Mr. Lawson grabbed the boxes."
Plaintiff fell to the bottom of the stairs, injuring his shoulder, elbow, hip and side. He remained in the basement resting for 10 or 15 minutes before he "crawled" upstairs, left the boxes of silverware with Lawson and Savage, and had them sign a receipt for the merchandise. Plaintiff left the diner and went directly home.
Savage testified that he had never purchased any Senak merchandise prior to June 6, although he and Lawson had previously discussed such purchases. He corroborated Handleman's testimony of the time of his arrival, the number of customers at the diner and that all the stools at the counter were occupied. He had no discussion with plaintiff while he was in front of the diner but he observed that after Handleman had spoken to Lawson, the salesman left by the front door. Savage was by the grill and from that position saw plaintiff enter the rear door. He also observed the coffee container carton on the platform. At the precise moment that Handleman fell into the cellar, however, Savage was waiting on customers and did not witness his fall. Savage testified that neither of the defendants was in the diner at the time these events took place. He also stated that "the supply man" had placed the carton on the platform 10 or 15 minutes before Handleman came to the rear door.
Lawson did not testify at the trial. Savage stated that the last time he heard of Lawson was "a year or a year and a half" before the trial.
Richard M. Newman, a licensed architect, testified that the construction of the stairway and platform violated the local building ordinance and the National Building Code, both of which were received into evidence, in two respects: (1) the stairs should have been enclosed at the basement and first floor landing for the safety of those using the stairs and for fire protection; and (2) the depth of the platform (29 1/2") did not meet the minimum required under the circumstances.
Defendants admitted the following in the demands for admission served on them by plaintiff: (1) "that deliveries of food supplies and merchandise were made through the rear door at the time of the accident, and for some time prior thereto"; (2) "that deliveries of merchandise were regularly made to the rear entrance of defendant's premises by suppliers * * *"; and (3) "that sales of silverware
were made by plaintiff to Clay Lawson and Marvin Savage in the rear of the store, after the fall down the cellar stairs."
Portions of defendant Cox's deposition were read into evidence. He admitted knowing that Senak salesmen came to his diner to sell silverware but was not sure if he had himself purchased any Senak merchandise. He stated that if he had made any purchases they were completed in the front of the diner "because I don't allow nobody in the back."
Defendant Tillotsen stated in his deposition that he "never purchased anything" at the diner for his home or personal use. He knew that Bateman and other employees had made such purchases:
"Because they used to take money and pay for this, what they bought, and put down on the books, when this man came around to collect for whatever they bought. You know, this take-out money, if they didn't have the money they would put it down on a take-out slip."
Tillotsen stated that he first knew plaintiff had fallen when he came to the diner in the afternoon of June 6 and "Lawson told me that a man fell down the stairs."
At the conclusion of plaintiff's case, defendants moved for dismissal of the action. They claimed a dismissal was warranted whether Handleman be considered a trespasser or a licensee. Parenthetically, we observe that defendants, under the terms of the pretrial order, contended that plaintiff's status "at the time of the accident was that of a mere licensee."
At the conclusion of the argument the trial judge stated:
"* * * I cannot see how I can send this case to the jury. * * * I would say from the facts in this case it might be inferred that there was either an implied invitation or a license (probably implied invitation) that permitted the employees of the owner to have salesmen call upon them in the diner , but I cannot see how I could allow a jury to decide that there was anything but a trespass
insofar as the rear of the premises were concerned , and that being so, I cannot find any willful injury, hidden trap, and I would be unwilling to submit it to the jury on that basis.
I agree with the thesis of Mr. Kent that there would have to be an implied invitation to the rear of the premises , and there is no fair inference of that.
I will grant the motion." (Emphasis added)
Plaintiff then moved to reopen his case and made an offer of proof of an investigator's report made by A. J. Anderson. The report stated:
"Mr. Cox [the defendant] has himself purchased merchandise from these Senak salesmen * * * and he knows that his employees have made similar purchases. These salesmen would usually come in the front entrance but if the place was busy they would be asked to come around to the back entrance which leads into the kitchen. This back entrance is not a public entrance * * * but exceptions were made for these salesmen."
Anderson was in the court room prepared to testify to the contents of his report. Plaintiff's attorney generally indicated he had intended to question defendant Cox, when he took the stand, as to whether he had made these admissions to Anderson. Had Cox denied the statements, he then intended to call Anderson as a rebuttal witness. The judge, by way of a rhetorical question, asked "[H]ad he [plaintiff] put in this testimony, he would be home free, wouldn't he?" He added that he believed that plaintiff's attorney
"* * * always recognized his problem of invitation to come into the back door, and he hoped he had enough without this. When he finds he does not have enough, he now ...