Rommel v. Schambacher

• Decision Date: 10 October 1887
• Docket Number: 142
• Citation: 11 A. 779,120 Pa. 579
• Parties: WILLIAM ROMMEL v. JACOB SCHAMBACHER
• Court: Pennsylvania Supreme Court

11 A. 779

120 Pa. 579

WILLIAM ROMMEL v. JACOB SCHAMBACHER

No. 142

Supreme Court of Pennsylvania

October 10, 1887 ^[*]

Argued January 13, 1887

ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 142 July Term 1886, Sup. Ct.; court below, No. 132 December Term 1884, C.P. No. 4.

On November 24, 1884, a summons in case issued in an action by William Rommel against Jacob Schambacher. The narr, as originally filed, charged a liability of the defendant arising out of the duties he owed, as an inn- or tavern-keeper, to the plaintiff while his guest. Additional counts were subsequently filed, by leave of court, charging defendant's liability under § 3, act of May 8, 1854 P.L. 663, relating to the civil responsibility of an consequence of the furnishing of intoxicating person or property in consequence of the furnishing of intoxicating drinks in violation of any existing law. The plea was not guilty.

At the trial on May 12, 1886, the facts appearing from the testimony on the part of the plaintiff were in substance the following:

On August 9, 1884, the plaintiff, who was about twenty years of age, went into a saloon kept by the defendant, about 8 or 9 o'clock in the evening, and there became intoxicated upon liquor sold to him by the defendant. There were several others in the saloon, including Edward Flanagan and Paul Burgert, who also drank so as to become intoxicated. While the plaintiff was standing in front of the bar, the defendant behind it, talking with and looking at him, Burgert handed to Flanagan a pin and a piece of paper which Flanagan attached to the plaintiff's clothes and some one set the paper on fire. The plaintiff's clothes ignited, when he ran into the kitchen, followed by Flanagan who there extinguished the flames. The plaintiff was severely burned on the back and side from which it was claimed a permanent injury resulted.

At the close of the plaintiff's case, the court, WILLSON, J., on motion of defendant's counsel and after argument directed the entry of a compulsory nonsuit. Subsequently, a motion to take off the nonsuit was argued before the court in banc, THAYER, P.J., and WILLSON J., present, and refused. Thereupon the plaintiff took this writ, assigning as errors the entry of the judgment of compulsory nonsuit and the refusal of the motion to vacate the judgment.

The judgment of the court below is now reversed and a new venire ordered.

Mr Henry D. Wireman, for the plaintiff in error:

1. The fact that the defendant, as proprietor, was present before and at the time the plaintiff was set on fire, aiding and abetting the commission of the act, made him liable, as a principal in the second degree, in damages to the plaintiff for the injuries received: Bouvier, L.D., 460; 1 Archb. Cr. Law 66-67. Whether the defendant was or was not aiding and abetting, was a question of pure fact for the jury: Prutzman v. Bushong, 83 Pa. 526; Maynes v. Atwater, 88 Pa. 496.

2. Inn-keepers and tavern-keepers are synonymous in Pennsylvania: Houser v. Tully, 62 Pa. 94. One coming for temporary refreshment is a guest: McDonald v. Edgerton, 5 Barb. 510; Clute v. Wiggins, 14 Johns. 176; 2 Kent's Com. 293. An inn-keeper is responsible to a guest for the acts of his servants and other guests, and is bound to exercise an exact viglance over all persons coming into his house as guests or otherwise: Houser v. Tully, 62 Pa. 94; Walsh v. Porterfield, 87 Pa. 376; Mason v. Thompson, 9 Pick. 280; Sibley v. Aldrich, 33 N.H. 553; Shaw v. Berry, 31 Me. 229; Cundy v. Lecocq, 23 Amer. L. Reg. 768.

3. Whether or not the defendant saw what was transpiring in front of him, was a question for the jury and there was ample evidence to justify a finding against him: Murphy v. Crossan, 98 Pa. 495, Tice v. Hun, 94 N.Y. 621; Lak v. Milliken, 62 Me. 240; Fairbanks v. Kerr, 70 Pa. 86. The analogy afforded by the law as to the duties of passenger carriers is pertinent: P. & C.R. Co. v. Pillow, 76 Pa. 510. And see Henry v. Dennis, 93 Ind. 452.

4. The defendant not only sold intoxicating drinks to plaintiff, when he was a minor, but when he was intoxicated also, in violation of the act of May, 1854. For the consequences of this unlawful act, he is clearly liable in damages to the party injured: Fink v. Garman, 40 Pa. 95.

Mr. Charles H. Downing, for the defendant in error:

The defendant in error is not responsible for the consequences of practical jokes played without his knowledge on a guest, if the plaintiff in error could be considered a guest. The first section of act of May 8, 1854, cited in plaintiff's paper book, does not apply to this case, as the remedy should have been by a prosecution under said act, not an action for damages. Fink v. Garman, 40 Pa. 95, was a suit brought by a widow for damages for the loss of her husband, and has no application to the case under consideration. There being no evidence produced to show knowledge on the part of the defendant, the court below was therefore right in entering a nonsuit.

Before MERCUR, C.J., GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.; CLARK J., absent.

OPINION

MR. CHIEF JUSTICE GORDON:

From the evidence in this case we gather the following facts: on the evening of the 9th of August, 1884, the plaintiff William Rommel, a minor, entered the tavern of the defendant, Jacob Schambacher, and there found one Edward Flanagan: they both became intoxicated on liquor furnished them by...