Birmingham Amusement Co. v. Norris, 6 Div. 519

• Court: Supreme Court of Alabama
• Writing for the Court: SOMERVILLE, J.
• Citation: 216 Ala. 138,112 So. 633
• Decision Date: 28 April 1927
• Docket Number: 6 Div. 519
• Parties: BIRMINGHAM AMUSEMENT CO. v. NORRIS.

112 So. 633

216 Ala. 138

BIRMINGHAM AMUSEMENT CO.
v.
NORRIS.

6 Div. 519

Supreme Court of Alabama

April 28, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Lula J. Norris against the Birmingham Amusement Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally. [112 So. 634]

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant.

Black & Harris and J. Potts Barnes, all of Birmingham, for appellee.

SOMERVILLE, J.

The plaintiff, a woman weighing 196 pounds, attended a moving picture performance in defendant's theater, and was injured by the collapse of the seat of the chair in which she sat.

One of the more important questions in the case, arising out of the instructions given to the jury, is with respect to the duty of the defendant in the safeguarding of its patrons while they are in the theater and using it for the purpose for which it was intended, and for which their presence had been invited.

The instructions particularly objected to by defendant are these:

"(a) Now it is the duty of the proprietor of a place of amusement to keep such place in a reasonably safe condition for persons who enter at his invitation, and if one who has entered at his invitation is injured as a proximate result of his failure or neglect to keep such place in such reasonably safe condition, such failure or neglect, if any, will render him liable in damages to the person injured

"(b) Those operating such places of amusement are under the duty to exercise reasonable and ordinary care to see that such place, and every part of it, including contrivances and fixtures, necessarily used in conducting such place, to see that such are kept in a reasonably safe condition

"(c) Such persons are held to reasonable care in inspecting from time to time, and such inspection must be sufficiently frequent and thorough to determine the condition, and to insure a reasonably safe condition."

When exceptions were taken to these portions of the oral charge, the trial judge made this explanation:

"Where I charge you that such persons are held to reasonable care in inspections from time to time, and such inspections must be sufficiently frequent and efficient enough to determine the condition, I want to say that such persons are held to reasonable care in making reasonable inspections, and at such reasonable intervals; and such inspections must be reasonable and reasonably sufficient and reasonably frequent and thorough enough to reasonably determine the conditions."

Exception was taken also to this explanatory charge. Defendant's insistence is that its duty was merely to exercise reasonable care to make and keep its premises and appurtenances reasonably safe for its patrons; and that instruction (a) in effect makes defendant an insurer of their safety.

Many authorities have stated the duty in the form contended for by defendant. Currier v. Boston Music Hall Ass'n, 135 Mass. 414; Schofield v. Wood, 170 Mass. 415, 49 N.E. [112 So. 635]

636; Turlington v. Tampa El. Co., 62 Fla. 398, 56 So. 696, 38 L.R.A. (N.S.) 72, Ann.Cas.1913D, 1213; Cooley on Torts, 604, 607. In the note to Williams v. Mineral City Park Ass'n, 128 Iowa, 32, 102 N.W. 783, 1 L.R.A. (N.S.) 427, 111 Am.St.Rep. 184, 5 Ann.Cas. 924, 926, the editor deduces from the decisions the rule that "the proprietor is chargeable with reasonable care in providing suitable premises and maintaining them in a safe condition for the use of his guests," and that seems to be the doctrine of the principal case. See, also, in the note to Frye v. Omaha & C.B. St. R. Co., 106 Neb. 333, 183 N.W. 567, 22 A.L.R. 607, the editor says:

"The weight of authority is to the effect that the proprietor or manager of a place of amusement owes a duty to the public who are invited there, to exercise reasonable care to see that the premises are safe and are kept in a safe condition."

See, also, 26 R.C.L. 713, § 14; 38 Cyc. 268.

On the other hand, many high authorities declare that, when the proprietor of a place of amusement induces people to come upon his premises, "he thereby assumes an obligation that such premises are in a reasonably safe condition, so that persons there by his invitation shall not be injured by them or in their use for the purpose for which the invitation was extended." Freeman's note to Larkin v. Saltair Beach Co., 30 Utah 86, 83 P. 686, 3 L.R.A. (N.S.) 982, 116 Am.St.Rep. 818, 831, 8 Ann.Cas. 977; Hart v. Washington Park Club, 157 Ill. 9, 41 N.E. 620, 29 L.R.A. 492, 48 Am.St.Rep. 298, 300, 301; Scott v. Univ. of Mich. Athletic Ass'n, 152 Mich. 684, 116 N.W. 624, 17 L.R.A. (N.S.) 234, 125 Am.St.Rep. 423, 15 Ann.Cas. 515. In the last-named case, the court said:

"The managers of the grounds and stands occupied upon the occasion in question the position of proprietors of a public resort. Plaintiff was not a mere licensee and did not occupy the stand by mere invitation. Whether responsibility to the plaintiff is grounded, in the form of action instituted, upon a contract or upon a duty, it exists, if at all, because of an implied contract. The implied contract was that the stand was reasonably fit and proper for the use to which it was put; the duty was to see to it that it was in a fit and proper condition for such use. Neither plaintiff nor the public generally would be expected to examine the stand and judge of its safety. This consideration, and the probable consequences of failure of the structure, imposed upon the responsible and profiting persons the duty of exercising a high degree of care to prevent disaster. They were not insurers of safety, they did not contract that there were no unknown defects, not discoverable by the use of reasonable means; but, having constructed the stand, they did contract that, except for such defects, it was safe."

Our own court does not appear to have dealt specifically with the case of a theater or other place of public amusement, but, on the general question of the duty of a proprietor who invites people upon his premises, it has been repeatedly declared that his duty is "to maintain such premises in a reasonably safe condition for the contemplated uses thereof, and the purpose for which the invitation was extended." Sloss Iron & Steel Co. v. Tilson, 141 Ala. 152, 160, 37 So. 427, citing 21 A. & E. Ency.Law (2d Ed.) 471; Montgomery & E. Ry. Co. v. Thompson, 77 Ala. 448, 457, 54 Am.Rep. 72; West v. Thomas, 97 Ala. 622, 625, 11 So. 768; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 152, 41 So. 988; Southern R. Co. v. Bates, 194 Ala. 85, 69 So. 131, L.R.A.1916A, 510.

There is, we think, a substantial difference in the operation and legal effect of the two rules as thus above formulated. Without undertaking a general discussion of their relative merits, we think that, where the proprietor invites people upon his premises, and receives compensation for the privilege of their entrance, or for their entertainment while there, he impliedly undertakes that the premises are reasonably safe for the purpose intended, and for which they are accordingly used by his patrons.

This does not mean that the proprietor is an insurer against accidents to patrons resulting from their own missteps or disabilities, and not primarily from the unsafe condition of the premises or their appurtenances, nor against injuries resulting from invisible defects therein, not open to observation, nor discoverable by ordinary inspection. This is the sound doctrine declared in Scott v. Univ. of Mich. Athletic Ass'n, 152 Mich. 684, 116 N.W. 624, 17 L.R.A. (N.S.) 234, 125 Am.St.Rep. 423, 15 Ann.Cas. 515, as shown by the excerpt from the opinion, supra. But, where the causating defect was open to observation, or discoverable by ordinary inspection, liability for the injury attaches as a matter...