Ayres v. Middleton Theater Co.

• Decision Date: 08 April 1919
• Docket Number: No. 15409.,15409.
• Parties: AYRES v. MIDDLETON THEATER CO.
• Court: Missouri Court of Appeals

210 S.W. 911

AYRES v. MIDDLETON THEATER CO.

No. 15409.

St. Louis Court of Appeals. Missouri.

April 8, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by Harry F. Ayres against the Middleton Theater Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Reynolds & Harlan and Chase Morsey, all of St. Louis, for appellant.

Chas. A. Smith and William McNamee, all of St. Louis, for respondent.

ALLEN, J.

The petition, as originally filed herein, charged:

That on February 18, 1915, the defendant corporation was engaged in conducting a theater in the city of St. Louis, and that on the evening of the day mentioned plaintiff, having purchased from defendant four tickets for admission to defendant's theater, entitling him to four seats therein, entered the same accompanied by his sister, her husband, and another companion, but that, though plaintiff and his companions were properly conducting themselves, defendant's agents and servants in charge of its theater, without cause, refused to allow plaintiff to occupy a seat therein, and "in a loud, insolent, and insulting manner, in the presence and hearing of a great number of patrons of said theater who were then and there present, whose names are unknown to the plaintiff, told plaintiff that he and the persons accompanying him could not obtain seats in said theater, and that he must leave said theater, and then and there defendant, through its said officers, agents, servants, and employés, in a loud tone of voice and insulting language, ordered plaintiff and the persons accompanying from said theater; that plaintiff, by reason of being publicly insulted and expelled in the manner as above stated, suffered great pain of mind and humiliation, and by reason of his expulsion, as above set forth, the plaintiff has been, and still is, greatly injured in his good name, fame, and credit, and was and is brought into public scandal, infamy, and disgrace with and among his associates and others."

The answer is a general denial.

Plaintiff, a resident of Mineral Point, Mo., testified that having purchased flour tickets to defendant's theater, the "Grand Opera House," for 10 cents each, he and his companions entered the theater and were directed by an employé of defendant to go to the second floor or balcony thereof, and that upon entering the aisle on the second floor he was stopped by an employé of defendant. Plaintiff testified:

"The doorkeeper [evidently an usher] on the second floor, he takes me by the arm and pulls me back; told me to `Hold on'; says, `You can't go in here.' * * * I says, `What is the matter?' `Well,' he says, `your clothes.' I says, `My clothes? What is the matter with my clothes?' And he looked me up and down and in a loud tone of voice says, `Why you are not dressed sufficient to be admitted here.' He says, `You clothes are not sufficient to be admitted.'

* * * This fellow had kindo' pushed me back towards the stairs, and I explained to him, I says, `What are you going to do; I bought tickets for all of us?' He says, `That don't make any difference; you can't be admitted here; you are not dressed sufficiently to be admitted.' I says, `What do you mean? Do you mean to get out?' He says, `Yes, sir; you leave the theater; you can't be admitted here.'"

And plaintiff testified that he and his companions then returned to the first floor, where he spoke to a doorkeeper and told him what had occurred, and that the doorkeeper said: "Here is your tickets; what are you kicking about?" that plaintiff thereupon took the tickets to defendant's office, where he received back the money which he had paid therefor. Plaintiff further testified that defendant's said servant on the second floor, in addressing him, "talked loud and boisterous," and attracted the attention of persons in the theater in their seats and of others who had congregated near plaintiff and his companions in the aisle. The testimony shows that plaintiff had on a blue serge coat and vest which were practically new, corduroy trousers, a gray flannel shirt, with collar and necktie, new shoes, and had a new corduroy cap, and that his clothes were clean.

The testimony of plaintiff's companions corroborates that of plaintiff as to what occurred upon the occasion in question.

A witness for defendant testified that he was an usher in defendant's theater, on the second floor thereof, on the evening mentioned; that as he stood at the door leading to this floor a man and a lady entered followed by two men; that, as there were only two vacant seats on the floor at the time, he stopped the two men in the rear, telling them that they would have to take seats "upstairs"; that these men refused to go upstairs, saying they would get their money back, and that the man and the lady mentioned then also went down the stairway. The witness could not identify plaintiff and his companions as being the persons mentioned, but he testified that he said nothing to plaintiff in regard to the latter's clothes, had no argument with plaintiff, and did not put his hand upon plaintiff's arm.

Defendant's ticket collector testified that upon the evening in question a "party of four" entered the theater, and later returned and "asked for their tickets back"; that he was busy and did not have time to listen to what was said, but returned their tickets to them.

At the close of all the evidence in the case the court, on plaintiff's request, allowed plaintiff to amend his petition by...