Interstate Amusement Co. v. Martin

WALKEB., P. J. — The second count of the complaint, as it was amended, avers that on a date named the de--fendant was operating a theater where performances and entertainments were given for a consideration, and. to which the public were invited, that the plaintiff purchased a ticket which entitled him to admission to a performance given by the defendant on that day, one of the acts of which was an exhibition by a named agent or servant of the defendant, and that during the performance of that act said agent or servant, while he [484] was acting in the line and scope of bis employment, did invite plaintiff to tbe stage and, in tbe presence of tbe audience, addressed to bim insulting and defamatory language, wbicb is set out. It sufficiently appears from tbe averments of tbis count that tbe plaintiff was present at tbe performance mentioned, by virtue of tbe ticket for wbicb be bad paid. Tbe suggestion made in tbe argument of tbe counsel for tbe appellant that tbe count is faulty- because of tbe absence of specific aver-ments to tbe effect that tbe plaintiff presented bis ticket and was admitted to tbe theater is bypercritical. While a ticket to a theater or other place of amusement may not confer upon tbe bolder of it such a right to a seat or place to see tbe performance as to entitle bim to maintain an action of trespass for being excluded therefrom, yet it constitutes a contract between tbe proprietor and tbe purchaser of tbe ticket; and whatever contractual duties grow out of such relation, tbe proprietor is bound to perform or respond in damages for breach of his contract. — Horney v. Nixon, 213 Pa. 20 61 Atl. 1088, 1 L. R. A. (N. S.) 1184, 110 Am. St. Rep. 520, 5 Ann. Cas. 349; Taylor v. Cohn, 47 Or. 538, 84 Pac. 388, 8 Ann. Cas. 527; 38 Cyc. 265. It is not to be doubted that one of those duties is to accord to'the ticket bolder civil treatment while be is exercising the privilege for wbicb be has contracted. Tbis duty is one that may be breached by the proprietor himself, or by mistreatment at tbe hands of an employee while acting within tbe range or scope of bis employment, and tbe mistreatment may consist in tbe use of uncivil and offensive language addressed to or spoken about tbe ticket bolder. It is suggested in tbe argument of tbe counsel for tbe appellant that, as the latter is a corporation, it cannot be held to liability for slanderous words uttered by its [485] employee, and. in support of this position reference is made to the ruling in -the case of Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 South. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90. In the opinion rendered in that case it was recognized that the rule of non-liability there announced is not applicable where the utterance of the slanderous words by an employee of a corporation constitutes a breach of a duty imposed upon the latter by a contract between it and the party complaining. Such is the case presented by the count here in question. The act complained of is that of an employee of the defendant while engaged in an exhibition which constituted a part of the performance, for the privilege of witnessing which the plaintiff had paid.' For the act of the employee within the line or scope of his employment the employer is liable, where such act is a breach of a duty of the employer to the plaintiff arising out of a contract between them. The alleged act of the employee was a breach of -his employer’s duty to the plaintiff not to subject the latter to insult or indignity. The averments of the count show the existence of a duty owing by the defendant to the plaintiff, and a breach of that duty by one for whose misconduct on the occasion alleged the defendant is responsible, and it was not subject to the demurrer interposed to it. After the plaintiff, testifying as a witness in his own behalf, had detailed the occurrence complained of, he was permitted, over objections duly interposed, to answer the questions, “Did it embarrass you?” “Were you humiliated?” Under recent rulings it must be held that it is reversible error to admit such evidence as to the effect of an occurrence upon one’s mind or sensibilities. — Western Union Telegraph Co. v. Cleveland, 169 Ala. 131, 53 South. 80, Ann. Cas. 1912B, 534; Louisville & Nashville R. R. Co. v. Sharp, 171 Ala. 212, 55 South. 139. [486] Remarks in reference to tbe incident made by a person in tbe audience after tbe plaintiff bad left tbe stage,. wbicb was tbe scene of tbe incident, did not constitute a part of tbe res gestas, and evidence of sucb remarks was subject to objection as hearsay. Tbe charge mentioned in tbe thirteenth assignment of error was properly refused, as no phase of tbe evidence in tbe case tended to prove, as was hypothesized in that charge, that tbe defendant “bad nothing to do” with tbe production of tbe performance referred to. On the contrary, tbe evidence without conflict was to the effect that tbe performer mentioned was acting as an employee of tbe defendant. Tbe defendant was not entitled to tbe general affirmative charge requested in its behalf on tbe theory that tbe undisputed evidence in tbe case sustained either of its special pleas upon which issue was joined. This claim, made in argument especially with reference to the averments of plea 5, cannot be sustained; The evidence was such as to support a conclusion that the act of the plaintiff in going upon the stage and putting the performer in handcuffs was not, as was alleged in the plea., an abandonment of his position or relation as the guest or patron of the defendant, but was a compliance with a request made in behalf of the defendant to any one in the audience, and so may be regarded as an act which the defendant invited the plaintiff as its patron or guest to perform. Reversed and remanded.