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SCHWARTZ v. WARWICK-PHILADELPHIA CORPORATION (01/20/67)

decided: January 20, 1967.

SCHWARTZ, APPELLANT,
v.
WARWICK-PHILADELPHIA CORPORATION



Appeal from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 4037, in case of Ruth Schwartz, Maxwell L. Schwartz and Joseph Rosenberg v. Warwick-Philadelphia Corporation.

COUNSEL

N. Carl Schwartz, for appellants.

Roger B. Wood, with him Joseph R. Thompson, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 424 Pa. Page 186]

It was a wedding banquet and the guests were enjoying themselves in the traditional custom of nuptial celebrations. There was dining and dancing and then dancing and dining. Fork work interspersed with footwork. The banquetters would enjoy a spell of eating and then amble out to the dance floor to dance. When the music suspended, the dancers returned to their tables and became diners again. The mythical playwright who prepares the script for the strange and sometimes quixotic episodes which eventually end up in court, mixed his stage properties and characters in this presentation because he placed in the center of the dance floor a quantity of freshly cooked asparagus and ladled over it a generous quantity of oleaginous asparagus sauce. In this setting it was inevitable that something untoward would happen, and it did. One of the performers in the unrehearsed play described what occurred.

Joseph Rosenberg, tall, weighing 185 pounds and wearing a tuxedo suit, was dancing with his sister-in-law, Mrs. Ruth Schwartz who was wearing a gold lame dress, made of a metallic brocade material when, as he describes it, "I went up in the air and flipped on my back, my buttocks, and I pushed her down, and as I pushed her down, I let go, and she hit the floor, and my feet went up in the air."

Were it not for what he testified later, the casual reader could assume Joseph Rosenberg was merely describing one of the modern dances which, in acrobatic manipulations and grotesque gyrations, sound no less exotic than the wild movements narrated above. Rosenberg explained, however, that the terpsichorean maneuver he executed was involuntary. He said he was a veteran of the ball room with some 35 years of successful dancing behind him and he had never previously

[ 424 Pa. Page 187]

    done such a flip as he described. He said that his excursion into space rose from an asparagus pad in the middle of the floor, and that after he got up he noted his pants were "green and white, like sauce."

His dancing partner, Mrs. Schwartz, confirmed Rosenberg's testimony and stated that as a result of the squashed asparagus floundering, her dress was covered with "strings of like green asparagus," and that the stain was 8 inches wide and 15 inches down from the side. In addition, the floor was wet for a distance of 3 feet with asparagus and sauce. Mr. Schwartz, the husband of Mrs. Schwartz, testified that immediately after the tumble occurred, "I rushed over and there they are sitting in a spill of green substance and sauces, and it was spread over quite an area . . . the area seemed to be full of liquid and asparagus." He saw that Rosenberg's shoe was full of the "green substance," and that the sole of the shoe was green and "there seemed to be something sticking to it near the heel."

Twenty minutes after the dine-and-dance debacle, Mr. Rosenberg and Mrs. Schwartz left the hotel, bruised, sore, and asparagus-laden, and in due time brought an action in trespass against Warwick-Philadelphia Corporation, the caterers of the wedding feast.

At the end of the ensuing trial, the judge entered a compulsory non-suit, asserting that the plaintiffs had not established a prima facie case of negligence or proximate cause. There was evidence that the waiters carrying food to the tables not only walked over the dance floor, but did so while the dance was in progress. Since the dancing space was not large, it happened that the dancers and waiters sometimes competed for passage and, while no one testified to ...


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