Mastrini v. Nuova Loggia Monte Grappa, 1507

• Decision Date: 05 February 1954
• Docket Number: 890,889
• Citation: 1 Pa. D. & C.2d 245
• Parties: Mastrini et al. v. Nuova Loggia Monte Grappa, 1507
• Court: Pennsylvania Commonwealth Court

1 Pa. D. & C.2d 245

Mastrini et al. v. Nuova Loggia Monte Grappa, 1507

Nos. 889, 890

Common Pleas Court of Cambria County, Pennsylvania

February 5, 1954

September term, 1952.

Preliminary objections to complaint.

Smorto & Creany, for plaintiffs.

Spence, Custer, Saylor & Wolfe, for defendant.

Before McKendrick and Griffith, JJ.

OPINION

GRIFFITH, J.

The complaints in these actions are quite similar. In the Gatto case it is averred that plaintiff suffered personal injuries by reason of slipping on the floor of the lodge premises which were in a dangerous condition by reason of having been strewn with napkins and spilled liquids. In the Mastrini case the complaint averred that the personal injuries were occasioned by reason of plaintiff slipping on a stairway in the lodge premises on account of a similar dangerous condition. The complaints alleged that Gatto was a member of defendant non-profit unincorporated association at the time he was injured and that Mastrini was a member as well as a trustee. Preliminary objections in the nature of demurrers were filed by defendant in each case on the ground that plaintiffs as members of the unincorporated association were precluded thereby from bringing suit.

The leading case in Pennsylvania on this subject is DeVillars et vir v. Hessler et al., 363 Pa. 498. Defendants in this case were the Kiser Hill-Mead Grange and its officers and members of its executive committee in their official capacities. It appeared that wife plaintiff was a member of the grange, an unincorporated fraternal order, and that she had participated in operating a booth for the grange at a county fair. She was injured when she attempted to light a gas steam table at the concession. The court said that plaintiffs would have been able to recover from those who were the actual tortfeasors had they brought suit against them in their individual capacities, but sustained the action of the lower court in entering judgment for defendants on the pleadings. The case was decided on the rule that while a principal may sue an agent for dereliction of duty, he may not sue his coprincipals for the dereliction of their common agent. It is true, as plaintiffs here point out, that the court there said that the weakness of plaintiffs' case arose from the fact that the wife plaintiff was an active participant in the general conduct of the concession at the fair and voluntarily assumed a participating role in the operation of the steam table. However, it is apparent from the cases cited with approval by the Supreme Court in its opinion that the decision did not rest on this narrow ground.

The court said, pages 501 and 502:

" In Koogler vs. Koogler, 127 Ohio St. 57, 186 N.E. 725, plaintiff, a pedestrian on the street, was struck by a fire escape falling from a building. He was a member of the fraternal unincorporated association which owned the building and which had negligently failed to inspect the fastenings of the fire escape. He was denied the right of recovery, the court stating (p.p. 62, 63 N.E. p. 727) that 'if the lodge owns its real estate, one member owns just as much as another; ... It is equally the duty of all members to work for the success of the association. They labor toward a common end. Their interests, their purposes, their privileges, in fact all their activities, are joint. Then must it not necessarily follow that the lodge is a joint enterprise, and that as between those engaged therein there is no liability for tort? Such is the holding of this court.'

" In Hromek vs. Gemeinde, 238 Wis. 204, 298 N.W. 587, the plaintiff, a member of an unincorporated labor union, was injured by falling over a platform which had been allowed to remain in an improper and unsafe position. He brought suit, naming the union as one of the defendants; the appellate court reversed a judgment against the union, saying (pp. 209, 210, N.W. p. 589) 'it (the association) has no entity or existence apart from that of its members, although for convenience it is permitted that the group comprising the union be sued in the name adopted by the association. This is a procedural provision and does not in any way change the status of the group or its substantive liabilities.... It is the well established law that while a principal may sue an agent for dereliction of duty, he may not sue his coprincipals for the dereliction of their common agent.... " It is true that both these bodies (the executive committee and a subcommittee of the union) were appointed by the general body of members, and as such they are the agents of the members; but they are just as much the agents of the plaintiff as the agents of his fellow members whom he seeks to make liable under their collective name" .'

" It follows from the application of the legal principal involved and from illustrative cases thus cited that the court below was right in directing that judgment be entered for defendants upon the pleadings."

It is apparent from the illustrative cases cited in the opinion that the Supreme Court did not base its action in sustaining the judgment for defendants solely on the fact that plaintiff was an active participant in the conduct of the concession at the fair. This becomes even more apparent when we examine the rule in other jurisdictions. The general rule is stated in 14 A. L. R. 2d 473-74, as follows:

" The question has not been presented or determined by the courts very frequently; but the general rule deducible from the few cases passing upon it appears to be that the members of an unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of that enterprise is imputable to each and every other member, so that the member...