Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Following the decision of the Supreme Court of the previous appeal in this case, reported in 35 N.J. 37 (1961), affirming 67 N.J. Super. 410 (App. Div. 1960), the case was tried again. The jury brought in a verdict of no cause for action, and plaintiff appeals from the resulting judgment.
The facts developed at the second trial were, with few exceptions, substantially the same as those recited in the two opinions above mentioned, and therefore need not be restated. The appeal is grounded principally upon alleged errors in the charge.
The court charged the jury that "the first issue is * * * whether the plaintiff at the time of his use of the ladder in question was an invitee or a licensee." Then, after defining licensee and invitee and stating the owner's duty to each, the court said:
"Where an occupier of lands engages an independent contractor to do work upon his premises, an employee of said contractor, while executing any part of the work provided for by said contract, is on the premises presumably by request of said owner and would be considered an invitee, provided, however, that the occupier, in this case the defendant, knew or reasonably should have known or expected that said ladder would or might be used in the performance of the work required under this contract.
As there is no claim or evidence of any wilful or wanton acts of injury or hidden traps, if you determine that the plaintiff was a licensee and not an invitee, the plaintiff would not be entitled to a verdict and that would dispose of the case.
If you find that the defendant or its agents or servants did not know or in the exercise of reasonable care could not be expected to
realize that plaintiff would descend into the interior of the tank in question, then you are to find that the plaintiff exceeded the scope of his invitation to use the premises of the defendant and you are to return a verdict in favor of the defendant of no cause for action."
The trial judge gave this charge because he interpreted the opinions of the Supreme Court and the Appellate Division, above mentioned, as requiring him to do so. In justice to the trial judge, it must be acknowledged that the opinions are ambiguous. We think that those opinions do not support the charge, and that it was prejudicially erroneous.
It must be remembered that the Supreme Court and the Appellate Division were dealing with a case which had been dismissed when plaintiff rested. On the assumption that the defendant would introduce evidence in support of its assertion that the plaintiff was a licensee at the time he was injured, the Supreme Court said that the issue of invitation and its scope would then be for the jury. However, the defendant offered no such evidence in the instant case.
Reiter was unquestionably an invitee upon defendant's premises. The only question was whether that invitation extended to the inside of the tank. There was no express invitation to enter the tank, nor did defendant have actual knowledge that any workman would do so. The question was, therefore, whether there was what the Supreme Court called "an implied invitation * * * by defendant to Cohen's workmen to go inside and to the bottom of the tank as an incident of the repair work."
Whether there was such an implied invitation depended not on what defendant knew or reasonably should have known, but on what defendant gave Reiter just reason to believe. Handleman v. Cox , 39 N.J. 95, 110 (1963); Cahill v. Mundet Cork Corp. , 70 N.J. Super. 410, 414-417 (App. Div. 1961); Williams v. Morristown Memorial Hospital , 59 N.J. Super. 384, 390 (App. Div. 1960); Gudnestad v. Seaboard Coal Dock Co. , 27 N.J. Super. 227, 237 (App. Div. 1953), ...