East Texas Theatres, Inc. v. Voyles
| Decision Date | 12 August 1969 |
| Docket Number | No. 7948,7948 |
| Citation | 445 S.W.2d 538 |
| Parties | EAST TEXAS THEATRES, INC., Appellant, v. Sheila Rutledge VOYLES et vir, Appellees. . Texarkana |
| Court | Texas Court of Appeals |
Tracy Crawford, Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, for appellant.
Scott Baldwin, Jones, Jones & Baldwin, Marshall, for appellees.
On September 25, 1966, Sheila Rutledge Voyles, while a paying and ticket holding patron of Paramount Theatre at its midnight show in Marshall, Texas, was struck on the head by a whiskey bottle thrown by some unknown person from the balcony of the theatre as the spectators were filing out of the theatre after the movie had ended.
The case was tried to a jury on special issues relating to primary and contributory negligence. In response to special issues 1, 5, 6, 7 and 8, the jury found to the effect: (issue 1) that during the performance of the show in question, the patrons in the balcony of the theatre were acting in a rowdy manner; (issue 5) that at such time as inquired about in Special Issue No. 1, the defendant, its servants, agents and employees, failed to remove such rowdy persons from the premises; (issue 6) that such failure was negligence; (issue 7) that such negligence was a proximate cause of plaintiff's injuries; (issue 8) the damages issue was answered in plaintiff's favor in the amount of $31,250.00. The jury also answered the contributory negligence issues in such manner as to exonerate Sheila Rutledge Voyles of any contributory negligence.
Based upon the jury's findings, the trial court entered judgment for appellees in the amount of $31,250.00. Appellant has appealed.
Appellant by its points 1 to 6, inclusive, contend to the effect that there was 'no evidence' to support the jury's findings to special issues 1, 5, 6, and 7, that there was 'no evidence' to authorize the submission of said issues to the jury, and contending in effect that defendant was entitled to judgment in its favor as a matter of law. Appellant's points 1 through 6 inclusive, are in effect 'no evidence' questions.
In considering the 'no evidence' questions, we must consider only that evidence, if any, which viewed in its most favorable light, supports the jury's findings, and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 338, 252 S.W.2d 561 (1952).
Viewing the evidence most favorable to the judgment as we must, with reference to the 'no evidence' questions, we state pertinent facts in this light as follows:
Appellee, Sheila Rutledge Voyles, was 17 years old on September 25, 1966, when she was injured at the Paramount Theatre in Marshall, Texas. She was a ticketholding patron for the midnight show. She had only been to a midnight show two or three times prior to the incident in question, and had not noticed any rowdiness in the shows prior to the instance in question.
Sheila testified that on the night of her injury that there was rowdiness in the theatre, but that she was attempting to watch the show and not pay attention to the rowdiness. The only quiet period she testified about was a period about one-half hour before the show was over, and that at the conclusion of the movie, she was in the aisle walking out when she was struck on the head by a whiskey bottle thrown from the balcony.
There was also other testimony regarding rowdiness during the performance of the movie. The witness Buddy Henderson testified to the effect that the rowdiness and throwing of objects down from the balcony continued throughout the performance and got worse toward the end, and he saw objects being thrown down toward the front, and everything. Though appellant characterizes the throwing as paper drifting down, Henderson testified specifically on this point as follows:
'Q. I am not talking about paper drifting down, I am talking about something being thrown out.
A. Yes, sir. I saw something being thrown out.
Q. On that specific night?
A. Yes, sir.'
There was also testimony with respect to metal letters, as shown in the record as follows:
'MR. BALDWIN: Let me ask you one other question, Mr. Gelling, while we are here:
Q. You do have a closet up there that you have some letters that you use on the marquee?
A. Yes.
Q. Are they big metal letters about like that?
A. Yes.
Q. And, have you not had occasion of them being thrown in the movie, where you have to keep them locked up?
A. I keep them locked up, I don't use them any more.
Q. You don't use the metal letters?
A. No.
Q. But when you had them, I say, you have had occasion of them being thrown, to where you had to keep them locked up?
A. Yes, they are locked up.'
Appellees in their brief comment and argue upon appellant's points 1 to 6 in part as follows:
'Although Mr. Gelling, the Manager of the theatre, testified that he had an employee, Charles Abercrombie, in the balcony to keep the peace up there, he was not, in fact, keeping the peace in the balcony according to the testimony of the witness, Henderson (S.F. 90--91). Henderson also testified that there was rowdiness all over the balcony (S.F. 95), and that performances in that theatre were usually rowdy and getting progressively worse over the last few months prior to the injury (S.F. 92--93). It is significant to note that he sees these things while he was merely a patron in the theatre and watching the show without paying particular attention to the rowdiness (S.F. 95--96), while Mr. Gelling is hesitant to admit much of this, according to his testimony.
'Mr. Gelling testified about searching the prospective patrons prior to the time that they came into the theatre for bottles, etc. (S.F. 99), and that he had a policeman whose job it was to stay 'generally up in the balcony a good part of the time, most of the time, and on the lower floor' when Mr. Gelling needs him (S.F. 99). There have been many occasions of boisterousness in the theatre (S.F . 105). There have been many occasions when persons have been removed from the theatre because of their conduct (S.F. 104). Mr. Gelling also testified that because of prior occasions of them being thrown, he had to keep large, metal letters locked up in a closet in the balcony and that he no longer used those large, metal letters (S .F. 110--111).
'According to the testimony of Mr. Gelling, the limitations of his budget from East Texas Theatres concerning the number of personnel he can hire and the price he can pay for such personnel makes it pretty hard to get employees for the job Abercrombie had (S.F. 106--107). Abercrombie was interviewed for the purpose of running a mop (S.F. 106), though Gelling testified he intended to use him to keep the peace on occasions up in the balcony (S.F. 107). He made no inquiry into his background to determine his suitability for such a job other than whether he could 'run a mop' (S.F. 106--107). Abercrombie was supposed to have been keeping the peace when the bottle was thrown (S.F. 107--108), although according to Mr. Gelling, Officer Burt was supposed to be in the balcony primarily. According to Burt's testimony, he did not go into the balcony during the entire evening (S.F. 160). There is a conflict between Mr. Gelling's idea of Mr. Burt's duties and Burt's idea of his duties, as Officer Burt indicated his primary duty was the lower floor and Abercrombie's primary duty was the upper floor (S.F. 160). Officer Burt testified that he, himself, heard disturbances in the balcony and did not go up there to quell the disturbance (S.F. 161), but was apparently relying on Abercrombie to do so (S.F. 160). It is significant to note that instead of controlling the crowd or working toward controlling the crowd until they were dispersed outside the theatre, Officer Burt immediately began checking the aisles to see that no one remained behind in the theatre and had already checked as much as one-third of the way up the aisle while the crowd was still in the theatre prior to the time of the occurrence in question (S.F. 163--164). It is also significant to note that in spite of Officer Burt's attempt to separate the responsibilities of peace-keeping into the main floor for himself and the balcony for Abercrombie, he knew he was down at the theatre to prevent any occurrence that might come up, if at all possible, and to control whatever did come up (S.F. 154). Further, that instances of midnight shows would be where his services are needed. Finally, Officer Burt felt that if he desired to and wanted to, he could have a seat and watch and movie (S.F. 168).
'Turning to the evidence in the case before the Court, we can see from Mr. Gelling's own admissions that he searched the patrons prior to their entry into the theatre for bottles, that there had been many instances of boisterous conduct prior to the occasion in question, that he had had to lock up metal letters in order to keep the patrons from throwing them inside the theatre; that it had become necessary to employ a policeman during the policeman's off-duty hours in order to keep order in the theatre and this would have been necessary only because of prior instances that Mr. Gelling, himself, would be unable to handle. The policeman-employee, Burt, testified that he heard disturbances in the balcony throughout the evening and did not even go up into the balcony to check on the disturbances or seek to quell them, though Mr. Gelling testified it was his job to do so and even Burt, himself, testified he was down there to prevent disturbances and to control them if they did arise. The witness, Henderson, testified about seeing objects thrown down from the balcony during the course of the movie and it is respectfully submitted that if a patron in the theatre can see objects being thrown, then a policeman on duty, whose job it is to thwart such...
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East Texas Theatres, Inc. v. Rutledge
...$31,250.00. Based upon the jury findings, the trial court entered judgment for the plaintiffs. The Court of Civil Appeals has affirmed. 445 S.W.2d 538. We reverse the judgments of both courts and here render judgment that the plaintiffs take The defendant presents two major questions for ou......