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GOMBAR v. SCHAEFFER. (11/29/63)

November 29, 1963

GOMBAR, APPELLANT,
v.
SCHAEFFER.



Appeal, No. 202, Oct. T., 1963, from order of Court of Common Pleas of Berks County, Dec. T., 1960, No. 85, in case of Joseph M. Gombar v. Kenneth Schaeffer et al. Order reversed.

COUNSEL

James M. Potter, with him Liever, Hyman & Potter, for appellant.

Robert I. Ottom, with him Matten & Cottom, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 202 Pa. Super. Page 284]

OPINION BY FLOOD, J.

The plaintiff sued Kenneth Schaeffer for assault and battery and the appellee Home Association for negligence in failing to protect him, as its patron, from the assault. The jury found against both defendants "each to pay the sum of $2500, a total of $5,000 compensation". While Schaeffer took no action after the jury's verdict, the association's motion for a new trial was granted by the court en banc. The plaintiff has taken an appeal from this action.

Although the grant of a new trial will not be disturbed by us if anything appears in the record sufficient to justify it (Mozino v. Canuso, 384 Pa. 220, 120 A.2d 300 (1956)), neither the reasons cited by the court below nor the additional reasons suggested by

[ 202 Pa. Super. Page 285]

    the appellee furnish any valid ground for compelling the appellant, the verdict-winner, to retry the case. In these days of intractable back-logs in many trial courts, new trials in negligence cases should not be granted without substantial reason.

The rule of law defining what the plaintiff had to prove is contained in ยง 348 of the Restatement of Torts which provides: "A .... possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have (a) discovered that such acts were being done or were about to be done, and (b) protected the members of the public by (i) controlling the conduct of the third persons, or (ii) giving a warning adequate to enable them to avoid the harm ...." See Corcoran v. McNeal, 400 Pa. 14, at pp. 19-20, 161 A.2d 367, at pp. 370-71 (1960).

1. The jury could have based its verdict upon the following evidence: Schaeffer, then nineteen, came to the association's premises with his parents between five and six p.m. and stayed at a table with his parents and others until ten p.m. His father went to the bar "several" times during this period and bought pitchers of beer. Schaeffer accompanied his father to the bar at least once and admitted drinking at least two glasses of beer upon the premises, although he could not say whether he drank more than five. About ten p.m. he took his girl friend home. On his return he saw the plaintiff and, after some words, asked him to go outside and fight. A ...


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