Sullivan, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
In this negligence -- breach of warranty case plaintiff appeals from a judgment of the Law Division entered upon a jury verdict of no cause of action.
Plaintiff is a furniture dealer whose business establishment is located on Route 22, Union, New Jersey. In accordance with its annual custom plaintiff planned to conduct an out-of-door furniture sale over the Fourth of July holiday in 1963. In anticipation thereof, defendant was engaged to supply a tent for the purpose of protecting displays of furniture outside the store. Defendant had provided similar tents for the same purpose in 1961 and 1962. In 1961 plaintiff accepted defendant's recommendations concerning the manner of erection of the tent and of the flooring within the tent, and was assured that the displayed merchandise would be protected from the elements. The installation made in those two years was satisfactory and apparently fully served plaintiff's purpose.
On June 27, 1963 defendant again erected a tent and plaintiff proceeded to move its merchandise into it. On July 2, after some of the merchandise had been transferred to the tent a rainstorm occurred. Water poured through a part of the tent and it collapsed. According to plaintiff, "all of our
furniture, ninety-nine per cent, was completely ruined." The present action followed.
In separate counts of its complaint plaintiff alleged negligence "in failing to properly erect and secure the tent and in failing to supply a tent of waterproof material," and that defendant breached its warranty to provide a tent which was "fit for the use intended and of merchantable quality." In answer, defendant alleged as an affirmative defense that the occurrence was an act of God.
At the trial, in support of its defense that plaintiff's damage was the result of an act of God and therefore not actionable, defendant offered in evidence two articles which appeared in local newspapers on July 3 reporting severe-thunderstorms accompanied by rain on July 2, in the general area in which the town of Union is located. The court admitted large portions of the articles for their "factual content" and then, over the objection of plaintiff, read to the jury as follows:
"Ladies and gentlemen, counsel has asked that a newspaper report of certain facts reported by the Newark Star Ledger and the Newark News be read to you as indicating factual references to the nature of the storm. The Court has consented that parts of the articles in each paper be read to you. I shall do that myself.
The following appeared in the Newark Star Ledger in its Wednesday, July 3rd edition.
'Strong gusty winds accompanying the rain in Millburn caused telephone, fire and power lines to fall. The Wyoming section of the residential town was left without power for a good part of the day. A large tree was blown down at Church and Spring Streets in Millburn. While the thunder showers in Newark provided little more than a trace of rain, approximately an inch fell in South Plainfield area. Five houses in Union County were struck by lightning. In Union lightning started a roof fire of a home. In Bloomfield lightning struck four homes within ten minutes. During the height of the storm trees were knocked down in Cedar Grove.'
The following appeared in the Newark Evening News Edition for July 3rd, 1963:
'With thunder showers leading the way a mass of drier and somewhat cooler air moved in from the west to break the grip of the ten-day heat wave. Many communities reported damage as well as relief from the heat as gusty winds and rain swept the State. In ...