Summary
In Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938), a fourteen-year-old girl had been reported to a movie theater manager because she was annoying the audience by giggling and running in the aisle.
Summary of this case from First National Bank v. LangleyOpinion
No. 32957.
January 10, 1938.
1. APPEAL AND ERROR.
Supeme Court is bound by finding of jury on conflicting evidence.
2. THEATERS AND SHOWS.
The management of a theater has right to eject disorderly persons or to revoke license to enter which is conferred by purchase of ticket admission, and privilege of revocation may be exercised before admission.
3. THEATERS AND SHOWS.
The power of privilege of management of theater to eject disorderly persons or to revoke license to enter must be exercised within the limits of good order, and without insult, abuse, or defamation.
4. THEATERS AND SHOWS.
The limitation on privilege of management of theater to revoke license to enter was exceeded so as to render theater liable, where evidence disclosed that management had been informed that certain young girls, including plaintiff, a 14 year old girl, had been annoying audiences by talking and giggling during performances and by running up and down aisles, that plaintiff, when excluded, inquired of ticket taker the reason therefor and that ticket taker stated in presence of others that plaintiff had been guilty of such indecent conduct as rendered her unfit and an improper character to enter the show, and that she had been guilty of indecent and low-down conduct in the show.
5. THEATERS AND SHOWS.
Where patrons had reported to management of theater that certain young girls, including plaintiff, a 14 year old girl, had annoyed audiences during performances, thereafter plaintiff, when excluded, asked ticket taker the reason therefor, and ticket taker stated that plaintiff had been guilty of such indecent conduct as rendered her unfit and an improper character to enter the show, and that she had been guilty of indecent and low-down conduct, in action for damages, evidence of mental pain and suffering, although unaccompanied by a distinct physical injury, was admissible.
6. THEATERS AND SHOWS.
Ordinarily, damages for mental pain and suffering, not accompanied by distinct physical injury, are not allowable, but that rule does not include cases of wanton and shamefully gross wrong.
7. THEATERS AND SHOWS.
Where patrons had reported to management of theater that certain young girls, including plaintiff, a 14 year old girl, had annoyed audiences during performance, thereafter plaintiff, when excluded, asked ticket taker the reason therefor, and ticket taker stated that plaintiff had been guilty of such indecent conduct as rendered her unfit and an improper character to enter the show and that she had been guilty of indecent and low-down conduct, in action for damages court properly submitted to jury the issue of punitive damages.
8. THEATERS AND SHOWS.
Where patrons had reported to management of theater that certain young girls, including plaintiff, a 14 year old girl, had annoyed audiences during performances, thereafter plaintiff, when excluded, asked ticket taker the reason therefor, and ticket taker stated that plaintiff had been guilty of such indecent conduct as rendered her unfit and an improper character to enter the show and that she had been guilty of indecent and low-down conduct, $1,000 verdict was not so excessive, if excessive at all, as to authorize Supreme Court to interfere.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Rosen, Kammer, Wolff and Farrar, of New Orleans, La., and George W. Currie, of Hattiesburg, for appellant.
Where the libel is not actionable per se, mental anguish cannot be allowed as a part of the damages, (if recoverable in any case) without proof of some other injury or damage.
Odgers, Libel and Slander, 310, note; Corley, Torts, 204 and note; Hirschfield v. Ft. Worth National Bank, 15 L.R.A. 642; Miss. Power Co. v. Harper, 145 So. 887; Doherty v. Miss. Power Co., 173 So. 287.
We submit that the record contains no proof of actual malice, and that, in the absence of any physical injury, there could be no recovery.
We submit that the record demonstrates that no physical injury was sustained by the plaintiff; that there was no wantonness or wilfulness, and no basis for the allowance of punitive damages; that the record contains no words libelous per se, and that there is no allegation or proof of special damages; that the remarks of the ticket boy were in good faith and that they were privileged or qualifiedly privileged and that the plaintiff has proved no malice. The ticket was a mere revocable license, both by its own terms and under the law.
The plea of the general issue puts in issue the utterance of any words; and of the words charged in particular: of their import, and of the intent of their publication. Malice is not implied even from the use of slanderous words, if there is a privilege, justification, palliation or excuse.
Jarnigan v. Fleming, 43 Miss. 725; 13 Am. Berg. Encl. of L. 406; Verner v. Verner, 64 Miss. 321; Railway Co. v. Brooks, 69 Miss. 185; Bradley v. Heath, 12 Pick. R. 163; 36 C.J. 1150, sec. 17.
Both the declaration and proofs must set forth express malice and special damages and this must be done not in general terms but by particular allegations of fact which show the malice and show the special damages in such way as that the defendant is apprised of the very facts which he must meet at the trial and challenge.
The case of Davis v. Farrington, 1 Walker 304, held that the words alleged in the declaration there involved were not actionable at common law without allegation of special damages and held that a demurrer should have been sustained to the declaration. The case of Cook v. Weatherby, 5 Sm. M. 333, was one where it was held that the words did not impute a felonious stealing and proof thereof did not support a verdict.
Sands v. Robison, 12 Sm. M. 704; Railway Co. v. Brooks, 69 Miss. 185.
Where the communication is upon a privileged occasion and is a privileged communication, the burden is upon the plaintiff, of course, to show actual malice in order to recover.
Hines v. Shumaker, 97 Miss. 686; Stave Co. v. Wells, 111 Miss. 796.
The case of Holliday v. Maryland Cas. Co., 115 Miss. 56, was a suit for libel. The communication was held not to be libelous per se and that a declaration thereon for libel and slander was insufficient where it did not allege special damages.
37 C.J. 36; Newell on Slander and Libel (4 Ed.), sections 3, 4 and 20, page 87; Maronne v. Washington Jockey Club of the District of Columbia, 57 L.Ed. 681.
The mere desire and intention to attend a theatrical performance, a dance, a concert, a race, or other such amusement cannot be held to involve any such sentiments or emotions as arise in cases for breach of contract of marriage, or cases against railroad companies for failure to deliver dead bodies in time for funeral services, or against telegraph companies for failure to deliver telegrams relating to sickness and death, so as to allow recovery for mental suffering in suits for breach of contract in refusing admission to such amusements after the purchase of tickets.
Buenzle v. Newport Amusement Assn., 68 A. 721; 45 Cent. Dig., Theaters and Shows, sec. 4.
A ticket of admission to a place of amusement is a revocable license.
Burton v. Scherpf, 1 Allen 133, 59 Am. Dec. 717; Baxter v. Savoy Shirt Co., 143 N.E. 808; Meisner v. Detroit, B.I. W. Ferry Co., 118 N.W. 14; Shubert v. Nixon Amusement Co., 83 A. 369.
The proprietor of a theater has, in the absence of a statute, the absolute right to decide who shall be admitted to witness the plays he produces.
People ex rel. Burnham v. Flynn, 82 N.E. 169.
Currie Currie, of Hattiesburg, for appellee.
In the main, the authorities cited by the appellant go upon the theory that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her. We emphatically deny that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her.
Many authorities hold that the right of revocation is not absolute, and we assert that it would violate sound reason, violate every natural human impulse, overthrow every principle of right and justice and establish a most dangerous public policy to hold that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her in the most cruel, inhuman, insulting, abusive and oppressive manner.
Hurst v. Picture Theatres, Ltd., 1 K.B. 1, Ann. Cas., American and English, 1916D 457.
The right of revocation of the license or ticket of the appellee was not absolute.
Bouknight v. Lester, 119 S.C. 466, 112 S.E. 274; Taylor v. Waters, 7 Taunt. 374, 129 Eng. Reprint, 150, 2 Marsh. 551, 18 Rev. Rep. 499; Hurst v. Picture Theatres, 1 K.B. 1, 8 B.R.C. 856, 83 L.J.K.B.N.S. 1837, 111 L.T.N.S. 972, 30 Times L.R. 642, 58 Sol. Jo. 739, Ann. Cas. 1916D 457; Sparrow v. Johnson, Rap. Jud. Quebec 8 B.R. 379; Barnswell v. National Amusement Co., 21 B.C. 435, 31 West. L.R. 543, 23 D.L.R. 615; Aaron v. Ward, 203 N.Y. 351, 38 L.R.A. (N.S.) 204, 96 N.E. 736; Smith v. Leo, 92 Hun. 242, 36 N.Y. Supp. 949; MacGowan v. Duff, 14 Daly 315, 12 N.Y.S. 680; Drew v. Peer, 93 Pa. 234.
It is conceded that the proprietor of a theatre, a show house or a moving picture, would have the right, under proper circumstances then and there existing, to revoke a license or ticket and eject an offending patron, but there is no evidence in this case proving or tending to prove that the appellee was at the time she was unlawfully, wilfully, wrongfully and oppressively ejected from this theatre, engaged in any unbecoming or offensive conduct, and that being true the appellant was wholly and completely without right to revoke her license or ticket and eject her.
The right to eject, when ejection is necessary or can be justified, does not carry with it the right, power or authority to abuse, insult, oppress or assault, and we assert that even if the appellant had had the right in this case to eject the appellee, which it did not have, it would be liable notwithstanding such right, because of the abusive, insulting and oppressive manner in which it was done. That the appellee was infamously abused, insulted, oppressed and humiliated will not admit of doubt.
26 R.C.L. 718, par. 18; Cremore v. Huber, 18 N.Y. App. Div. 231, 45 N.Y. Supp. 947; Smith v. Leo, 92 Hun. (N.Y.) 242, 36 N.Y. Supp. 949; Evans v. Miller, 58 Miss. 120; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Hurst v. Picture Theatres, Ltd., Ann. Cas. 1916D 457.
Hurst v. Picture Theatres, Ltd., Ann. Cas. 1916D 457, was expressly followed in Barnswell v. National Amusement Co., (1915) 23 D.L.R. 615, where the court affirmed a judgment for the plaintiff who had purchased a ticket and had entered the building, but had not entered the auditorium, and was ejected; "He got through the first door and tried to get through the second door, which was a few feet away . . . into the theatre," meaning the auditorium. It was held that, as the plaintiff had entered the building as a spectator who had duly paid his money to see the entertainment, he was therefore entitled to remain.
State v. Walker, 1 Ohio Dec. Reprint 353; Weber-Stair Co. v. Fisher, 119 S.W. 195; Drew v. Peer, 93 Pa. 234.
Irrespective of the question as to the revocable character of the license, the patron of a place of amusement is entitled to civil treatment.
Ayres v. Middleton Theater Co., 210 S.W. 911; Magoverning v. Staples, 7 Lans. (N.Y.) 145; Boswell v. Barnum Bailey, 135 Tenn. 35, L.R.A. 1916E 912, 185 S.W. 692; Davis v. Tacoma R. P. Co., 35 Wn. 203, 66 L.R.A. 802, 77 P. 209, 16 Am. Neg. Rep. 621; Interstate Amusement Co. v. Martin, 8 Ala. App., 481, 62 So. 404.
Argued orally by George W. Currie and Gibbons Burke for appellant, and by Dan Currie for appellee.
On the day of the wrong and injury herein complained of, appellant was engaged in the operation of a moving picture theater, and appellee was a girl, fourteen years of age, in the ninth grade in high school, and who on Saturdays was a weekly patron of said theater. Some of the other patrons had reported to the management that certain young girls, of whom appellee was said to be one, had theretofore been annoying the audiences by talking and giggling during the performances and by walking or running up and down the aisles. The management had determined to apply a corrective in response to these reports, and had directed those in immediate charge of the theater to exclude therefrom the girls who had been reported as indulging in the aforesaid conduct.
Thereafter, on a Saturday afternoon, appellee, in company with her aunt, presented herself with her ticket for admission to the theater, but the doorman or ticket taker refused to honor the ticket and directed appellee to go to the ticket office a few steps away and receive return of the price paid. Appellee inquired at once of the ticket taker why she was being excluded, and the said agent angrily replied substantially in words as follows: "That she could not attend the show and that he would not permit her to enter; that she had been guilty of such indecent conduct as rendered her unfit and an improper character to enter the show; that she had been guilty of indecent and low-down conduct in the show." This language is averred to have been uttered in the hearing of divers persons then present; and it is shown by the evidence that the effect of it was to send the girl away crying and to produce such shame and humiliation that she went to bed and had to receive home treatment of sedatives to relieve the shock and mental suffering.
It seems almost unbelievable that a grown man of even half sense would have been guilty of that sort of language addressed to a 14 year old girl, and the suspicion at once arises that the three witnesses who testified to it have materially exaggerated what was said. Nevertheless the said three witnesses, nearest in presence to the occurrence, testified to it positively, and the jury, as men of observation and experience in the affairs of life, may well have had in view the fact that some minor employees, armed with a little brief authority, will often arrogantly demean themselves in the manner that these witnesses averred was the conduct of this ticket taker on this occasion. But however they may have reasoned it, the jury believed the evidence of the three witnesses as against the denial of the ticket taker; and this ends the matter on that issue.
It is the duty of the management of a theater, not only to themselves and to the success of the business, but also to their audiences, to see to it that every patron shall so conduct himself or herself that other patrons may witness the performances in reasonable quietude and in an atmosphere of good order. To the end that the management may fully perform those duties, the right is given the management to eject disorderly persons or to revoke the license to enter which is conferred by the purchase of a ticket of admission, and the privilege of revocation may be exercised before admission within the house. 26 R.C.L. page 704; 62 C.J., page 861. And see the cases collated in the opinion Boswell v. Barnum Bailey, 135 Tenn. 35, 185 S.W. 692, L.R.A. 1916E, 912.
Inasmuch as the ample power and privilege of revocation is given in the interest of the proper conduct of the business and of good order therein, it must follow that the power or privileges must be exercised within the limitations of good order, which is to say, it must be upon the condition or within the limitation that it shall be exercised without insult, abuse, or defamation. Boswell v. Barnum Bailey, supra, and notes, pages 914-916 of L.R.A. 1916E. That the stated condition or limitation was grossly and wantonly violated or exceeded on the occasion in question, nothing is needed for complete disclosure other than to point to the quoted language used by the ticket taker, and to the age and sex of the victim.
The court was, therefore, not in error in admitting evidence of mental pain and suffering, although unaccompanied by a distinct physical injury. Ordinarily, it is true, damages for mental pain and suffering not accompanied by a distinct physical injury are not allowable; but this rule does not include cases of wanton or shamefully gross wrong, such as the case now before us. 8 R.C.L. pages 531, 532, and see cases cited 17 C.J. page 831 under note 56. And for the same reason the court properly submitted to the jury the issue of punitive damages; and, although the verdict of $1,000 may seem large, it is not so excessive, if excessive at all, as that, under settled rules, we are authorized to interfere. Teche Lines v. Pope, 175 Miss. 393, 401, 166 So. 539.
The other assigned errors have been examined, but we do not find enough in them to require a reversal, and, therefore, the judgment must be affirmed.
Affirmed.