Opinion
Argued May 23, 1935 —
Decided October 9, 1935.
NOTE. — This case having been previously printed without the concurring opinion of Mr. Justice Heher, it is herewith reprinted with the concurring opinion following.
Appeal of By-Fi Building and Loan Association.
On appeal from the Supreme Court in which Chief Justice Brogan filed the following opinion:
"Plaintiff below, an infant, had judgment for personal injuries and his parents likewise had judgment for their expenses and loss of the infant's services, against the defendant.
"At the time of the happening the infant lived with his parents in a house rented by them and owned by the defendant building and loan association, appellant, which association undertook to have the house renovated somewhat by painting and decorating contractors. In the course of the work a heavy radiator was disconnected and, as charged, negligently permitted `to remain in the hall in a dangerous, unstable and unguarded position.' The result was that it fell on the infant plaintiff and injured him. The principal question was whether any liability was solely that of the contractors, or whether the appellant was also chargeable because of active participation in the alleged negligent act.
"The defendant appeals on the ground that its motion for nonsuit and direction of verdict should have prevailed; that the trial court erred in the admission and rejection of testimony, and that the court erred in its charge.
"The reasons advanced in support of the nonsuit and direction of verdict in the defendant's behalf are the same, namely, that there was no evidence of negligence on the part of the defendant. Other reasons are now advanced in appellant's brief but they cannot be considered since they were not presented to the trial court.
"(1) The defendant, building and loan association, according to the testimony, had commissioned its secretary, Knoeller, to see that this painting contract was carried out. The witness, Knoeller, says that the removal of these radiators was included in the contract of the parties. This the painting contractors deny. The estimate of cost of the work is printed in the record and there is nothing to indicate that the disconnection and removal of the radiators was part of the work covered by the estimate. There was testimony on the part of the contractors that Knoeller directed them to disconnect the radiators, saying that `he would be responsible.' Under our cases, Knoeller was acting within the scope of his apparent authority or within the scope of the authority which the defendant permitted him to hold himself out as having from his principal, the defendant. This testimony raised a question of fact for the jury and the denial of the motion for nonsuit and directed verdict was proper. J. Wiss Sons v. H.G. Vogel Co., 86 N.J.L. 618; American Well Works v. Royal Ind. Co., 109 Id. 104, 108.
"(2) The challenged testimony, which is made the subject of a ground of appeal, all relates to the same thing, namely, the authority of Knoeller, the secretary of the building and loan association, to bind his principal, the defendant. To some of the questions, proper exception was not taken but, passing that, it is manifest that the questions which the court permitted the witnesses, Marks and Levine (painting contractors), to answer were, under the circumstances, proper. They all had to do with the work to be done under the contract and upon which the estimate was silent. There was in fact no written contract at all, merely a bid for work and since this work was given out by the witness, Knoeller, for his principal, and since further there was testimony that he exercised supervision, it was quite competent to determine his status from what he said to the contractors and the directions that he gave them, all this being within the apparent scope of his authority.
"(3) The challenge to the court's charge relates to what was said about the question of the liability of the building and loan and is premised on the argument that there was no evidence upon which the question of the liability of the building and loan association could go to the jury. From what has been said, it is unnecessary to discuss this except to point out again that if Knoeller was acting within the scope, or apparent scope of his authority, the question was one of fact for the jury. The refusal of the court to charge as requested was warranted because the request to charge contained premises for which there was no foundation in the testimony.
"We find no error in the record and the judgment under review will be affirmed, with costs."
For the appellant, Harry Lane.
For the respondent, Edward A. Markley.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Brogan in the Supreme Court.
Marks and Levine were interior decorators; and it is evident that in the renovation of the interior of this single family dwelling pursuant to their original undertaking with the building and loan association, they were independent contractors, and their negligence was therefore not imputable to the association. But it is insisted that, in the removal of the radiator, work not expressly provided for in the original contract, the radically different relationship of respondeat superior existed. I am unable to subscribe to this view.
While the association insists that this work was embraced in the contract, and denies that it gave to the contractor any directions respecting the radiators, the latter maintain that it was not contemplated by the contract, and that when this was called to the attention of the association's agent, Knoeller, he instructed them to "disconnect" the radiators, and he would be "responsible." Assuming that such instruction was given, I regard it as, in effect, the mere supplementing of the original contract, without any substantial change in the relationship. Knoeller thereby undertook, on behalf of his principal, to authorize the doing of extra work, and to make compensation therefor. The radiator was removed by a workman in the employ of Marks and Levine, at the latter's direction, and he was in no sense under the control of appellant.
But this, in my opinion, does not affect the result; liability is sustainable on another theory. While, ordinarily, the owner of lands who undertakes to do work thereon that is not in itself a nuisance is not liable for an injury which results from the negligence of an independent contractor employed in its execution, unless the owner is in default in employing an unskillful or improper person as the contractor, it is now a firmly established rule in this state that, as to those portions of an apartment property reserved to the landlord for his care, preservation and repair, the landlord owes a non-delegable duty to his general tenants and invitees to maintain them in a reasonably safe condition. Sarno v. Gulf Refining Co., 99 N.J.L. 340; affirmed, 102 Id. 223; Hussey v. Long Dock Railroad Co., 100 Id. 380; 36 C.J. 212.
I can see no distinction in principle, in respect of the delegability of the duty to exercise reasonable care for the safety of the tenants, between an apartment house, where there is a reservation of control of the common ways, and the single family dwelling house, where the landlord undertakes the duty of making repairs. It seems to me that the duty to safeguard the tenants is as broad, imperative and positive in the one case as in the other. For obvious reasons, there may be a radical difference in the obligations respecting repairs resting upon the landlord — there may be no obligation in the one case while there is in the other — but when the duty to make repairs arises, or is gratuitously assumed, I am unable to perceive any ground in reason or logic for holding its performance to be non-delegable in the one case and transferable in the other. This distinction does not take into account the entire absence of substantial difference between the duties owing in the two situations. In their essence and nature they are the same; and, by the same token, call for the same character of performance and degree of care in execution. See collation of cases in 29 A.L.R. 763 et seq. See, also, 36 C.J. 219.
For affirmance — THE CHANCELLOR, TRENCHARD, LLOYD, CASE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal — None.