Roschmann v. Sanborn

• Decision Date: 21 May 1934
• Docket Number: 380
• Citation: 172 A. 657,315 Pa. 188
• Parties: Roschmann, Appellant, v. Sanborn et al., Trustees
• Court: Pennsylvania Supreme Court

172 A. 657

315 Pa. 188

Roschmann, Appellant, v. Sanborn et al., Trustees

No. 380

Supreme Court of Pennsylvania

May 21, 1934

Argued April 11, 1934

Appeal, No. 380, Jan. T., 1933, by plaintiff, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1930, No. 6183, in case of William Roschmann v. James E. Sanborn et al., trustees for the Keystone Commandery, No. 48, Patriotic Order Sons of America. Judgment affirmed.

Trespass for personal injuries. Before McDEVITT, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $12,000. Judgment entered for defendants n.o.v. Plaintiff appealed.

Error assigned, inter alia, was judgment n.o.v., quoting record.

The judgment is affirmed.

Ardemus Stewart, with him Albert T. Bauerle, for appellant. -- The doctrine of joint enterprise does not operate between guest-passengers in a motor vehicle, but only as between a guest-passenger and the driver or chauffeur: Dunlap v P.R.T. Co., 248 Pa. 130; Hoffman v. R.R. Co., 278 Pa. 246; Kelly v. Agricultural Society, 286 Pa 97; Campagna v. Lyles, 298 Pa. 352.

To fix on a passenger in a motor vehicle, in case of accident, the status of being engaged in a joint enterprise, there must be evidence which would warrant a finding that the injured passenger had some right to a voice in the control, management, or direction of the vehicle: Johnson v. Hetrick, 300 Pa. 225; Carlson v. R.R. Co., 305 Pa. 431; Wilson v. Walker, 313 Pa. 69.

The doctrine of joint enterprise is applied only in actions against a third person whose negligence is alleged to have caused the accident, and who defends on the ground of the contributory negligence of the plaintiff's driver, and sets up that the plaintiff was jointly responsible for its control and operation: Oestreich v. Zibman, 110 Pa.Super. 457.

The fact that the appellant is a member of the commandery does not preclude him from suing the aggregate membership of the commandery for the injuries which he suffered as a result of negligence for which the commandery is responsible: Phipps v. Jones, 20 Pa. 260; Liederkranz Singing Society v. Germania Turn Verein, 163 Pa. 265; First Reformed Presbyterian Church of Parnassus v. Carter, 7 Westmoreland L.J. 29; Maisch v. Order of Americus, 223 Pa. 199.

Samuel Gordon, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. CHIEF JUSTICE FRAZER:

Plaintiff in the court below obtained a verdict in an action of trespass to recover damages for personal injuries received by him resulting from a "blow-out" in the left rear tire of the motor bus in which he was riding. The bursting of the tire tore loose a board which struck and injured plaintiff's leg. Defendants are the trustees of Keystone Commandery No. 48, Patriotic Order Sons of America, herein called the Commandery, of which organization plaintiff is a member. The society is an unincorporated beneficial association organized for patriotic and fraternal purposes. Plaintiff appeals from the action of the court below in entering judgment for defendants non obstante veredicto.

On October 20, 1929, the day of the accident, appellant, together with other members of the order, and their wives and children, were on a pleasure trip to Delaware Water Gap from Philadelphia, traveling by motor bus. The blow-out occurred shortly after the bus had passed through the City of Easton. At the trial appellant sought to introduce testimony showing the bus was the property of the Commandery, that the driver was the employee of the order, and the occupants of the machine were passengers for hire, traveling as members of the Uniformed Rank, a subsidiary organization within the order. The negligence averred was excessive speed, careless operation of the car, and failure to inflate and maintain the tires properly. These issues were left to the jury, and although a question appears whether sufficient evidence of negligence was adduced to warrant submitting the case to the jury, we need not pursue the subject inasmuch as it is clear that judgment non obstante veredicto was correctly entered on other grounds.

The testimony plainly indicates no substantial distinction exists between the Uniformed Rank and the parent organization, the Commandery. As stated in appellant's brief, "though the Uniformed Rank is in one sense a branch of the Commandery, it is not a separate and distinct branch, but draws its life from the Commandery and has no existence save as an integral part of the Commandery, and is described in the by-laws as 'the Uniformed Rank of this Commandery.' Its members are members of the Uniformed Rank solely because they are members of the Commandery, and they pay dues and receive benefits equally as the nonuniformed members, and attend the meetings of the Commandery, like other members." Under ...