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DEVILLARS ET VIR v. HESSLER ET AL. (01/03/50)

January 3, 1950

DEVILLARS ET VIR, APPELLANTS,
v.
HESSLER ET AL.



Appeal, No. 135, Jan. T., 1949, from order of Court of Common Pleas of Crawford County, Sept. T., 1948, No. 87, in case of Della DeVillars et vir v. James Hessler et al. Order affirmed.

COUNSEL

F. Joseph Thomas, for appellants.

Stuart A. Culbertson, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stern

[ 363 Pa. Page 498]

OPINION BY MR. JUSTICE HORACE STERN

In this case plaintiffs filed a complaint, defendants an answer together with new matter, and plaintiffs a reply to the new matter. The court sustained a motion

[ 363 Pa. Page 499]

    by defendants for judgment on the pleadings, the question involved being the right of a member of an unincorporated association to recover from it for injuries sustained through a tort committed by other members in carrying out an association project.

Accepting as true all the allegations contained in plaintiff's complaint and their reply to new matter, it appears that Kiser Hill-Mead Grange is an unincorporated fraternal association in Crawford County. At the Crawford County Fair it had a concession for the sale of food. Defendants (who are respectively designated in the action as the master, the overseer, the treasurer, and the members of the executive committee) were in charge of the operation of this concession. They requested the wife plaintiff to serve in the capacity of cooking and dispensing the food, and, for the purpose of preparing the food, they provided a pretence gas steam table. When the wife plaintiff, in the course of the performance of her duties, attempted to light the burners of the table, it exploded, causing injuries to her for which she and her husband brought the present suit. Plaintiffs assert that defendants were negligent in furnishing a defective, inadequate and unsafe steam table which was so improperly connected that it could not safely be lighted, in failing to provide adequate means to prevent it from remaining lighted, and in failing to notify her that it was unsafe and unfit for use and that it was dangerous to light it. In their reply to new matter they admit that the wife plaintiff is not only a member of the association but also its secretary, that she actively participated in the endeavor of the association to raise funds and in the conduct of its concession at the Crawford County Fair, and that although she did not actively participate in the purchase of the table it was bought by virtue of her own motion. They further admit that in operating the steam table she did so for the benefit of the association when

[ 363 Pa. Page 500]

    the persons in charge were absent and could not be found.

There can be no question but that the wife plaintiff and her fellow members who participated in the operation of the concession on behalf of the association were engaged in a joint enterprise. It is true that that would not prevent her from holding the other participants liable for personal injuries inflicted by their negligence in the prosecution of the common undertaking, for no person may negligently injure another without being responsible for damages (Johnson v. Hetrick, 300 Pa. 225, 150 A. 477; Perry v. Ryback, 302 Pa. 559, 153 A. 770). Plaintiffs would therefore have been entitled to recover from those who were the actual tortfeasors had plaintiffs brought suit against them in their individual capacities; they named, however, as defendants, in addition to the Grange itself, its officers and the members of its executive committee by their official designations. The legal identity of these officers and committeemen is wholly ...


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