Fox Tucson Theatres Corporation, a Corp. v. Lindsay

Decision Date30 March 1936
Docket NumberCivil 3683
Citation56 P.2d 183,47 Ariz. 388
PartiesFOX TUCSON THEATRES CORPORATION, a Corporation, Appellant, v. EMMA LINDSAY and EMMA LINDSAY as Administratrix of the Estate of J. G. Lindsay, Deceased, Appellees
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the Couty of Pima. Wm. G. Hall, Judge. Judgment affirmed.

Mr Francis M. Hartman, for Appellant.

Messrs Cusick & Lyons, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an action by Emma Lindsay individually, hereinafter called plaintiff, and Emma Lindsay as administratrix of the estate of J. G. Lindsay, deceased, against Fox Tucson Theatres Corporation, a corporation, hereinafter called defendant, to recover damages for injuries which it is alleged plaintiff suffered as a result of the negligence of defendant. The case was tried to a jury, which returned a verdict in her favor in the sum of $1,500, and from the judgment thereon and the order overruling the motion for new trial, this appeal is taken.

The facts of the case, stated as strongly in behalf of plaintiff as they may reasonably be inferred from the evidence, as under our familiar rule we must assume them, are as follows On November 11, 1933, J. G. Lindsay and Emma Lindsay were husband and wife, and on that day Mrs. Lindsay visited the Fox Theatre in Tucson, owned and operated by defendant. In the basement of this theater, and reached by stairs from the main floor lobby, is a lounge or waiting room for the use of patrons, and opening from this lounge is a ladies' lavatory. The latter is reached by ascending three or four steps from the lounge, at the entrance to which are curtains, then crossing a narrow landing and passing through a door which opens inward, into the lavatory. At the time of the accident on which this suit was based, the lounge or waiting room, which is 30 feet long and 25 feet wide, was lighted by twenty-three 10-watt colored electric bulbs, placed behind screens, and two lighted signs. In the ceiling of a small vestibule, and above the steps leading to the lavatory, there was a 10-watt bulb which was not lighted at the time of the accident. Mrs. Lindsay descended from the main lobby of the theater to this lounge and stood there for some time before she could see the entrance to the lavatory because of the light, which she testified was very dim. She then ascended the steps leading to the lavatory and entered it. This room is much smaller than the lounge and was lighted by two white bulbs, one of 100 and the other of 50 watts. After remaining there a few moments, she left the lavatory by the door through which she had entered. There is a marked difference in the degree of lighting in the lavatory and on the stairs and in the lounge, and when the lavatory door had closed behind her, it seemed quite dark to her. She stood for a few moments, trying to get her bearings, but there being no usher or other person whom she could ask to help her, she felt for a banister, and finding none, edged to about the middle of the passageway, and stood there for a few seconds, and then cautiously moved her feet forward, as she thought, to the edge of the step so that she might step down, but missed her footing and fell the full length of the three or four steps to the floor of the lounge, with her feet crumpled under her. As a result thereof, she suffered a painful injury which was diagnosed by the physician who attended her as a severe sprain and torn ligaments of the ankle. The healing was very slow, and the joint was somewhat tender and weak some fifteen months after the accident, and, according to the doctor, the pain and loss of function will probably continue to some extent permanently.

There are some fifteen assignments of error, but they raise for our consideration only four serious questions of law, which we shall consider in their order.

The action was filed by J. G. Lindsay and Emma Lindsay, his wife. J. G. Lindsay died while the matter was pending in the trial court, and his surviving wife, who was the person actually injured, was appointed administratrix of his estate, and in due time moved to have herself, as administratrix, substituted as a party plaintiff for her deceased husband. This was done over the objection of defendant. It is urged by the latter that the damages sought to be recovered by this action are community property, under the rule laid down by this court in City of Phoenix v. Dickson, 40 Ariz. 403, 12 P.2d 618, and that we have held in the case just cited that the wife cannot maintain an action for personal injuries sustained by her during coverture, but that it must be brought by the husband as agent of the community, perhaps joined by the wife. From this premise, it is argued that when the husband died, the right of action itself ceased under the common-law rule, which, it is claimed, has not been modified by statute so far as cases of this kind are concerned.

We reaffirm the rule of law laid down in the Dickson case, supra, to the effect that the proceeds of the action in a case of this kind are community property, and that the husband is a necessary plaintiff in the action, but we think defendant has overlooked the reason for the rule and the capacity in which he is plaintiff. It is not because a cause of action ever existed in him, for that belonged to the person actually injured. As was said in C.B. & Q.R. Co. v. Dunn, 52 Ill. 260, 4 Am. Rep. 606, the injury did not accrue to the husband; "it was wholly personal to the wife. It was her body that was bruised; it was she who suffered the agonizing, mental and physical pain." The husband merely represents the community as a guardian would represent a minor child; he has no more individual and personal cause of action than a guardian, and his death no more abates the cause of action than the death of a guardian would destroy the cause of action of his ward. We think the trial court, after the death of the husband, properly permitted the administratrix of his estate to be substituted as a party plaintiff. Gomez et al. v. Scanlan et al., 2 Cal.App. 579, 84 P. 50.

The second question is the vital one in the case. It is whether defendant's conduct in maintaining the stairs, down which plaintiff fell, in the condition as to light in which we must assume it was...

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26 cases
  • Lorang v. Hays, 7514
    • United States
    • United States State Supreme Court of Idaho
    • July 1, 1949
    ...... P. 345; Fox Tucson Theatres Corp. v. Lindsay, 1936,. 47 Ariz. 388, ...W. Hays or. the National Surety Corporation, the surety on the official. bond of W. W. Hays, ......
  • La Sell v. Tri-States Theatre Corp.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...claimed that the theater was lighted in the manner approved and practiced by theaters generally.); Fox Tucson Theatres Corp. v. Lindsay, 47 Ariz. 388,52 P.2d 183, 185 (plaintiff, in going from a dimly lighted lounge up three steps to a lavatory, fell); Majestic Theaters Co. v. Lutz, 210 Ky.......
  • La Sell v. Tri-States Theatre Corp.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...... TRI-STATES THEATRE CORPORATION. No. 46250. Supreme Court of Iowa September 21, ... method of lighting and constructing theatres of. similar character and nature." Appellee ... practiced by theaters generally.); Fox Tucson Theatres Corp. v. Lindsay, 47 Ariz. 388, 52 P.2d ......
  • Cassanova v. Paramount-Richards Theatres
    • United States
    • Supreme Court of Louisiana
    • December 13, 1943
    ...Branch v. Libbey, 78 Me. 321, 5 A. 71, 57 Am.Rep. 810; Anderson v. Taft, 20 R.I. 362, 39 A. 191; Fox Tucson Theatres Corp. v. Lindsay [47 Ariz. 388], 56 P.2d [183], 185; Crouse v. Stacy-Trent Co. [110 N.J.L. 124], 164 A. 294; Bobbink v. Erie R. Co., 75 N.J.L. 913, 69 A. 204; Carty v. Boesek......
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