Fanciullo v. B.G. & S. Theatre Corp.

• Decision Date: 29 March 1937
• Citation: 297 Mass. 44,8 N.E.2d 174
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ANTHONY FANCIULLO v. B. G. & S. THEATRE CORPORATION.

297 Mass. 44

8 N.E.2d 174

ANTHONY FANCIULLO v. B. G. & S. THEATRE CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1937

January 4, 1937.

Present: RUGG, C.

J., PIERCE DONAHUE, LUMMUS, & QUA, JJ.

Agency, Scope of authority. Theatre. Practice, Civil, Waiver, Pre-trial hearing.

Evidence warranted a finding that an usher in a moving picture theatre was acting within the scope of his authority when he committed an assault and battery upon a patron while ejecting him for the ostensible purpose of preserving order.

A contention raised for the first time at the argument before this court of exceptions of the defendant in an action of tort for assault and battery against a corporation, that the declaration was not sufficient because it did not name the particular employee of the defendant who committed the assault and battery, came too late. Statement by RUGG, C.J. respecting pre-trial procedure.

It was proper for the jury to consider and give weight to a report of the judge presiding at a pre-trial hearing, read to them by the trial judge without objection but not introduced in evidence, and containing concessions by one of the parties bearing on a substantial issue in the case.

TORT. Writ in the Superior Court dated February 27, 1932. The action was tried before Goldberg, J. There was a verdict for the plaintiff in the sum of $7,500. The defendant alleged exceptions.

E. M. Dangel, (G.

A. Goldstein with him,) for the defendant.

H. J. Goldberg, (M.

Palais with him,) for the plaintiff.

RUGG, C.J. This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff by reason of an assault and battery committed on him by an agent or servant of the defendant. The evidence in its aspect most favorable to the plaintiff warranted a finding of these facts: The plaintiff, a boy eight years old, with several other boys bought tickets of admission to the defendant's moving picture theatre. The plaintiff and the other boys dropped their tickets in a box in the outer lobby, which was in charge of one O'Neil, the ticket taker and special police officer, and were shown to seats by the usher, one Less. There was "some noise and disturbance in the theatre, in the row behind where the plaintiff and his companions were sitting, in which the plaintiff did not take part, and then immediately the usher, Harry Less, forcibly removed the plaintiff from his seat, ejected him from the theatre and pushed and threw him onto the floor in the outer lobby, causing personal injuries to him. O'Neil, the special officer, was standing in the front lobby near the ticket booth. After the plaintiff got up, he and the other boys left the premises." They saw and passed O'Neil but said nothing to him. The usher, called as a witness by the plaintiff, testified that his duties were laid down by the defendant's manager, who told him that he "was just to usher people to their seats, to caution them once if they made noise, and if they didn't behave to notify the special police officer and if the special police officer couldn't do anything" to get a regular police officer. O'Neil, who was the only special police officer testified that a part of his duties was to eject disorderly people from the theatre, if called upon; that the Saturday afternoon when the assault was said to have taken place was a very busy time and frequently it was necessary to rope off the lobby when people were waiting. Both the usher and O'Neil testified that they never saw the plaintiff and that no assault took place.

The defendant filed a motion for a directed verdict and three requests for rulings in different forms of words to the effect that the plaintiff had failed to prove that it was within the scope of the authority of the usher to eject the plaintiff from the theatre. All these were denied, subject to exceptions by the defendant. The defendant also requested a ruling to the effect that the burden "was on the plaintiff to prove that the usher in ejecting the plaintiff from the theatre, was acting within the scope of his authority and that the same was a part of his duties as usher." While this request was not given in terms, its subject was fully covered by the charge to the jury in words to which no exception was taken.

The main contention of the defendant is that there was not sufficient evidence to support a finding that the assault on the plaintiff by the usher was committed while acting within the scope of his employment by the defendant.

The usher was in the employ of the defendant. The assault upon the plaintiff by the usher was committed on the premises of the defendant while the usher was engaged in his work. The usher as an employee of the defendant had duties in connection with the preservation of order in the theatre, because he was required to give warning once to patrons if they made noise, and, if then there was further disorder, to notify the special police officer; and finally, if necessary, to get a regular police officer. This course of duty, resting upon the usher as employee of the defendant, was progressively connected with the preservation of order. In a place of public amusement where large numbers of people are accustomed to gather, the maintenance of order may incidentally require the use of force. The testimony of the usher as to the duties of his employment was reasonably susceptible of the inference that, in the circumstances here disclosed, the defendant impliedly authorized him to use necessary force to eject a small boy who was creating a disturbance rather than to summon the special police officer. A master not infrequently may be liable for conduct of a servant who uses means not intended or contemplated by the contract of employment. For example, the proprietors of a circus have been held liable for the act of an employee in throwing a brick in an attempt to drive away a crowd of boys who had gathered about the tent. Robinson v. Doe, 224 Mass. 319, 321. "The test of the liability of the master is, that the act of the servant is done in the course of doing the master's work, and for the purpose of accomplishing it. If so done it is the act of the master, and he is responsible `whether the wrong done be occasioned by negligence, or by a wanton and reckless purpose to accomplish the master's business in an unlawful manner.'" Levi v. Brooks, 121 Mass. 501 , 505. The rule is stated in Am. Law Inst. Restatement: Agency, Section 245, in these words: "A master who authorizes a servant to perform acts which involve the use of force against persons or things, or which are of such a nature that they are not uncommonly accompanied by the use of force, is subject to liability for a trespass to such persons or things caused by the servant's unprivileged use of force exerted for the purpose of accomplishing a result within the scope of employment." The case at bar is within the principle declared and applied in numerous decisions. Robinson v. Doe, 224 Mass. 319 . Murphy v. Bay State Wine & Spirit Co. 212 Mass. 285 . Grant v. Singer Manuf. Co. 190 Mass. 489 . Zerngis v. H. P. Hood & Sons, 255 Mass. 603 . Champion v. Shaw, 258 Mass. 9 . Howe v. Newmarch, 12 Allen, 49. Armstrong v. Stair, 217 Mass. 534 . Holmes v. Wakefield, 12 Allen, 580. Hewett v. Swift, 3 Allen, 420. Hankinson v. Lynn Gas & Electric Co. 175 Mass. 271 . Gray v. Boston & Maine Railroad, 168 Mass. 20, 24. Genga v. Director General of Railroads, 243 Mass. 101 , 104, 105, 106. Ramsden v. Boston & Albany Railroad, 104 Mass. 117 . McKeon v. New York, New Haven & Hartford Railroad, 183 Mass. 271 Paull v. Radlo, 293 Mass. 521 , 525. Janvier v. Sweeney, [1919] 2. K. B. 316, 325. Son v. Hartford Ice Cream Co. 102 Conn. 696. Ploof v. Putnam, 83 Vt. 252. The case at bar is distinguishable from the many cases where the master has been exonerated from liability for the act of a servant not done in the course of his employment. Douglas v. Holyoke Machine Co. 233 Mass. 573 . Obertoni v. Boston & Maine Railroad, 186 Mass. 481. McCarthy v. Timmins, 178 Mass. 378 . Stone v. Commonwealth Coal Co. 259 Mass. 360. Brown v. Jarvis Engineering Co. 166 Mass. 75 . Brown v. Boston Ice Co. 178 Mass. 108 . O'Rourke v. A-G Co. Inc. 232 Mass. 129 . Fairbanks v. Boston Storage Warehouse Co. 189 Mass. 419 . Driscoll v. Scanlon, 165 Mass. 348. Bowler v. O'Connell, 162 Mass. 319 . Kowalczyk v. Murphy, 295 Mass. 551 , 555. Harrington v. Boston & Maine Railroad, 213 Mass. 338 . Muller v. Hillenbrand, 227 N.Y. 448.

There is no merit in the contention of the defendant that the plaintiff's declaration was insufficient because it did not name the usher as the agent of the defendant who committed the assault. There was no request by the defendant for specifications. There was no demurrer, as in McCann v. Tillinghast, 140 Mass. 327 . The case at bar is quite distinguishable from Bacon v. Hooker, 173 Mass. 554 . The case has been fully tried without raising the point. It is too late to rely upon it now. Even if there were some merit in it, an amendment to the declaration could be allowed. Pizer v. Hunt, 253 Mass. 321 .

The bill of exceptions contains this paragraph: "Throughout the trial the parties made conflicting contentions concerning the authority of the usher, Harry Less. At the trial there was presented to the trial justice a pre-trial report, so called the original of which is on the files of this court, and which is incorporated herein by reference and which may be transmitted to the clerk of the Supreme Judicial Court together with the files for such use as the full court may see fit to make of the same. The judge in his charge to the jury, among other things, read the pre-trial report, a photostatic copy of which is hereto annexed, and...