Gray v. Fox West Coast Service Corporation

• Decision Date: 01 February 1933
• Docket Number: 6979.
• Parties: GRAY v. FOX WEST COAST SERVICE CORPORATION et al.
• Court: Montana Supreme Court

18 P.2d 797

93 Mont. 397

GRAY v. FOX WEST COAST SERVICE CORPORATION et al.

No. 6979.

Supreme Court of Montana

February 1, 1933

Rehearing Denied Feb. 17, 1933.

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Kate S. Gray against the Fox West Coast Service Corporation and another. From the judgment, for plaintiff defendants appeal.

Reversed and remanded, with directions to dismiss complaint.

L. C Myers, of Butte, and Freeman, Thelen & Freeman, of Great Falls, for appellants.

Timothy Nolan, of Butte, for respondent.

STEWART J.

Appellants, defendants in the court below, after denial of a new trial, have appealed from a judgment against them in the district court of Silver Bow county.

The cause of action was based upon an injury alleged to have been suffered by plaintiff, now respondent, Kate S. Gray. The judgment was against defendants Fox West Coast Service Corporation and Harry N. Stone, in the amount of $4,608.40.

The facts are: Defendant Fox West Coast Service Company, being in possession of a building in Butte, Montana, known as Fox Theater, did lease the same to school district No. 1, Silver Bow county, for the purpose of holding therein commencement exercises on May 29, 1931. Negotiations for the leasing were conducted between defendant Stone, representing his superior officer, one Stegge, general manager of defendant corporation, and one Scott Fries, principal of the high school, acting under authority of the school board.

The time of the use was for the period of the graduation exercises; the rental was $50, which was paid by the school district to the defendant corporation. The conditions of the lease were verbally expressed and were to the effect that the school district should have the complete and full use of the building and equipment, but no stage hands or house employees were included in the lease. The school district was required to make its own arrangements for help. Mr. Fries hired the stage hands, four in number, with the approval of the school district. This was done by negotiation with one Malloy. The stage hands were paid by the school district; their compensation was $9 each, a total of $36. No employees of defendant corporation were in or around the building during preparation for, or at the time of, the exercises.

Apparently the theater company had no regularly employed stage hands, but was under the jurisdiction of a local union, International Alliance Theatrical Stage Employees' Union, Local 94. The union furnished stage help, and Mr. Malloy, with whom, as stated, Fries made his arrangements, was the representative of the union. He furnished the men to operate the building and plant on the day of the exercises.

John Curran, a witness for plaintiff, testified that: "The union had jurisdiction over the Fox Theatre ***. When I say jurisdiction it means that members of our union operate those switches and that was the condition of affairs at the Fox Theatre on the 29th day of May, 1931." This statement was not denied but was somewhat explained, as will be later herein shown.

The complaint contains the allegation: "That persons were entitled to admission who had received tickets from the school district; that plaintiff, being in possession of one of said tickets, entered the building on May 29, 1931, to attend the graduation exercises."

Plaintiff, while stepping from the "east-west aisle" of the theater to an intersecting aisle, fell and suffered her injuries. She testified that the lights were inadequate at that point; that there was no light on the floor; that there was an unlighted step; and that by reason of such step and the lack of adequate light, she fell and so suffered her injuries.

Plaintiff asserts that the step constituted a structural defect in the building. There is nothing in the record to bear out the contention that the construction of the floor and the maintenance of the step constituted faulty construction or created a dangerous condition if properly lighted. Neither is there any evidence to show that the same were out of repair or in a poor or dangerous condition for that reason. There is evidence that the step was poorly lighted on the day in question. The plaintiff herself testified that she fell and was injured because she did not and could not see the step.

Several witnesses testified that there was an adequate lighting system in the building, including an aisle light at the place where plaintiff fell. The witness Stone testified that: "The system of lights was in working order; *** when all the lights are turned on, the theater is bright, very bright. When the lights are on, one is able to see any steps in the aisles on the lower floor."

The witness Joseph A. La Forrest testified as follows: "Q. What have you to say as to whether it is light or dark on that particular aisle in the Fox Theatre when all the lights are on? A. With all of the lights on in that Fox Theatre it is plainly lighted so that you can see around. With all the lights on I did not have any trouble at all in seeing any of the steps or any of the aisles in the back of the house." This testimony was given by the witness after an inspection; it is not contradicted.

It then seems clear from the testimony that there were aisle lights in the building and that there was a light at or near the spot where plaintiff fell, but that light was not turned on at the time.

The presence of the step itself, if not out of condition, was no evidence of faulty construction. No evidence was offered to show that the step was inherently dangerous of itself, or that its presence there constituted a structural danger or menace to safety, provided, of course, it was properly lighted. It was not per se faulty construction to maintain a step at the point of intersection of the two aisles where plaintiff fell. In the case of Givens v. De Soto Building Co., 156 La. 377, 100 So. 534, 535, the court said: "But we need no evidence to satisfy us that it is not per se faulty construction to place the seats of an auditorium or theater on a higher level than the aisles between them." See, also, Hollenbaek v. Clemmer, 66 Wash. 565, 119 P. 1114, 37 L. R. A. (N. S.) 698; Suggs v. Saenger Theatres, Inc., 15 La. App. 142, 130 So. 817.

Apparently, then, the failure to have the step lighted must have been the fault or negligence of some one. It could only have been the defendant corporation, who was considered the owner of the building, or the lessee, the school district. Plaintiff argues, and cites cases to show, that the school district was not, and could not have been, liable for the tort. The question of the liability of the school district is not before us, and we need not discuss that feature. If, as plaintiff asserts, the school district is not liable, that in itself does not create liability against the defendants in this case, or shift from the school district to the defendants responsibility for plaintiff's injuries.

Plaintiff also argues that the defendant corporation, being the owner or in possession of the building, is liable upon the same theory that a proprietor of a public place or pleasure resort is liable for the torts of concessionaires, independent contractors, or third persons operating under the proprietor. She attempts to bring this case within the rule announced in Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336, and cases cited therein. As to the general rule there can be no question. A proprietor does owe to the public the obligation to use ordinary or reasonable care to have the premises safe, as well as to warn the patrons of any hidden or lurking danger on the premises.

This case must turn upon the question: Whose responsibility was it on May 29, 1931, to have the premises in that condition of safety required by law? We have heretofore stated that the injury suffered by plaintiff was not caused by any structural defect in the step over which she fell or on account of the bad order thereof, but was due, as is manifestly shown by the evidence, to the fact that the premises and particularly the step were made dangerous by the failure...