Hawkins v. Maine & N.H. Theaters Co.

• Decision Date: 15 February 1933
• Citation: 164 A. 628
• Parties: HAWKINS v. MAINE & NEW HAMPSHIRE THEATERS CO. (two cases).
• Court: Maine Supreme Court

164 A. 628

HAWKINS

v. MAINE & NEW HAMPSHIRE THEATERS CO. (two cases).

Supreme Judicial Court of Maine.

Feb. 15, 1933.

Exceptions from Superior Court, Androscoggin County.

Separate actions by Miles R. Hawkins, pro ami, and by Miles S. Hawkins against the Maine & New Hampshire Theaters Company. Cases were submitted to a referee who found for plaintiff in each case, and reports were allowed with written objections, Reports were accepted by the justice of the superior court, and defendant brings exceptions.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Alton C. Wheeler, of Auburn, and Robert T. Smith, of South Paris, for plaintiffs.

Berman & Berman and Fred H. Lancaster, all of Lewiston, and John G. Marshall, of Auburn, for defendant.

THAXTER, Justice.

These two cases, one brought by a father to recover for medical expenses in treating injuries to his minor son alleged to have been caused by the defendant's negligence, the other brought by the minor through his father as next friend, were submitted to referees with right of exceptions reserved, who found for the plaintiff in each case and awarded damages. Written objections to the allowance of the reports were duly filed by the defendant, and to the action of the justice of the superior court in accepting them exceptions were taken.

The declarations allege that the minor, a guest in a motion picture theater conducted by the defendant, was injured through the failure of the defendant to restrain the "playful, sportive and mischievous acts" of other children in the theater. The specific failure alleged was the omission to provide a sufficient staff of ushers and attendants and to station them at convenient points. As a result, it is alleged that an assault was committed on the plaintiff Miles R. Hawkins by another boy.

The facts as found by the referees are not in dispute. The defendant advertised a special matinee performance on Washington's Birthday, February 22, 1932, at its Strand Theater in Lewiston. It was announced that a balloon would be given to each child purchasing a 10-cent ticket. These tickets admitted the holder to the balcony, which was well filled with children, mostly boys. The plaintiff, a boy of twelve, accompanied by a friend, purchased a 10-cent ticket, was admitted to the balcony, and took his seat in the fourth row. He and the other children had been given balloons, which frequently burst from over inflation. Several of the children had rubber bands, which in a few instances they used to snap paper pellets at the balloons; but these acts were done when the ushers aud the attendants were not looking. One boy, Francis Malloy, thirteen years old, who sat in the front row, came to the theater with a sling shot and some BB shot. This weapon he had used in the morning to shoot at tin cans, and had in his pocket, but not with the slightest intent of using it in the theater. In fact, he states that he had forgotten that he had it with him, until he put his hand in his pocket to put away his own balloon. With this and the BB shot, when the ushers were not looking, he fired at two balloons. One of these shots struck the plaintiff Miles R. Hawkins in the eye, causing the injuries for which these suits were brought. The incident occurred shortly after the plaintiff arrived at the theater. Two ushers and a house boy were in attendance in the balcony at the time. They ushered and assisted in keeping order, but none of them saw the accident or knew that it had occurred till some time afterwards. The attendants did not at any time see the use of the sling shot by the boy or the snapping of the paper pellets.

The referees ruled that, in view of the conditions created in the theater by the management in giving away the balloons and permitting the children to blow them up so...