Hossack v. Metzger, 13316.

• Decision Date: 29 July 1946
• Docket Number: No. 13316.,13316.
• Citation: 156 F.2d 501
• Parties: HOSSACK v. METZGER.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F.2d 501 (1946)

HOSSACK v. METZGER.

No. 13316.

Circuit Court of Appeals, Eighth Circuit.

July 8, 1946.

Rehearing Denied July 29, 1946.

Holton Davenport, of Sioux Falls, S. D. (Ellsworth E. Evans and Louis R. Hurwitz, both of Sioux Falls, S. D., on the brief), for appellant.

George J. Danforth, of Sioux Falls, S. D. (G. J. Danforth, Jr., of Sioux Falls, S. D., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judge.

RIDDICK, Circuit Judge.

James W. Hancer was burned to death in a fire which occurred in a motion picture theatre in Gregory, South Dakota, where he was employed as the operator of projection machines. This action against the owner of the theatre for damages for Hancer's death was brought by the appellant as administratrix of Hancer's estate. Jurisdiction of the Federal court is based upon diversity of citizenship.

The appellee theatre owner had elected not to comply with the South Dakota Workmen's Compensation Act. SDC 64.0101 et seq. Because of his noncompliance, appellee is subject to an action for damages for the injury or death of an employee resulting from negligence attributable to appellee, and he is not permitted to defend on the ground that the employee was guilty of contributory negligence, or that the injury was caused by the negligence of a fellow employee, or that the employee had assumed the risk of injury. In such an action the burden is upon the plaintiff employee to prove that the negligence of his employer or of one for whose negligence the employer is legally responsible was the proximate cause of his injury. § 64.0109, South Dakota Code of 1939, Vol. 3, p. 1240; Stevenson v. Douros, 58 S.D. 268, 235 N.W. 707, 709; Voet v. Lampert Lumber Co., S.D., 15 N.W.2d 579, 582.

In the complaint the appellee was charged with negligence causing the death of Hancer because of the acts of Harry Ritter, an alleged employee of appellee, in the handling of a reel of motion picture film after the discovery by Ritter that the film which he was handling was on fire. In the words of the complaint, "said co-employee Ritter was negligent in the particulars hereinafter set forth; that said fire could easily have been extinguished by the simple operation of tearing off the short section of said film that had become ignited, and detaching the same from the balance of said film, which operation was easily and conveniently within the means of said co-employee to perform; that said co-employee did not perform such operation of so detaching the said ignited film, but negligently and carelessly so handled such film that the ignited portion thereof came in contact with the balance of said film, thereby causing the entire said set of film to ignite and burn violently; that thereupon said co-employee negligently and carelessly threw said set of film toward or at an open door of said booth or small room where said film was subject to a substantial draft and large quantities of oxygen, causing the said set of film to burn violently, with terrific heat, and completely blocking any egress of the said James W. Hancer from said theatre; that all of said acts herein set forth on the part of said co-employee were in the course of the employment aforesaid of the said co-employee by the said Defendant."

The defenses set up in the answer were: (1) that Ritter was not an employee of appellee for whose negligence, if any, appellee was responsible; (2) that Ritter was not negligent in the handling of the film after discovering that it had become ignited; (3) that the sole cause of Hancer's death was his negligence in smoking cigarettes in the projection booth where the fire occurred; and (4) that, if not caused by Hancer's negligence, the fire was the proximate cause of Hancer's death.

At the conclusion of the evidence the trial judge directed the jury to return a verdict for appellee. This appeal challenges the correctness of this ruling. The record does not disclose the reason upon which the trial judge based his decision, but the parties agree that his statement of it was that Ritter, in handling the ignited film, was confronted with a sudden emergency not caused by his negligence, and for that reason was not chargeable with negligence because of anything he did or failed to do after the discovery of the fire.

The ultimate question on this appeal is whether there is any substantial evidence upon which a verdict of the jury for the appellant could be sustained. "For the decision of that question, we must assume as established all the facts that the evidence supporting the plaintiffs' claims reasonably tends to prove and that there should be drawn in the plaintiffs' favor all the inferences fairly deducible from such facts." Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 439; Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 7; Ulrikson v. Chicago, Milwaukee, St. Paul & Pacific Railway Co., 64 S.D. 476, 268 N.W. 369; Miller v. Stevens, 63 S.D. 10, 256 N.W. 152.

Photographic film used in the projection of motion pictures is highly inflammable. The danger of fire resulting from the operation of motion picture projection machines is universally recognized. In South Dakota booths in which the projection machines are operated are required to be of fireproof construction, and doors of the booths to be kept closed during projection operations. Smoking and keeping inflammable substances in or about the projection booths are prohibited. § 31.0412, South Dakota Code of 1939, Vol. 1, p. 1242. By a rule of appellee, of which Hancer was informed, smoking was prohibited in the balcony of the theatre on which the projection booth was located.

Will Jonas was employed by the appellee as manager of the theatre. The contract of employment was in writing. Jonas was given such general authority as was necessary to the management and operation of a motion picture theatre. Employees for the position of projection machine operator were to be selected by Jonas and their names with recommendations submitted to appellee for his approval. The employment of Hancer as operator of the projection machine is not denied.

The fire occurred in October, 1943. In August of that year Hancer notified Jonas of his intention to quit his employment at the theatre. Jonas and Hancer agreed that Harry Ritter should be brought into the theatre to be trained to take Hancer's place. Ritter on the invitation of Hancer, approved by Jonas, began work at the theatre in August under the direction of Hancer. By the middle of September Jonas and Hancer were of the opinion that Ritter was qualified to succeed Hancer in the operation of the projection machines, and with the approval of Jonas, Hancer notified Ritter that payment for his services would begin on September 19. There is nothing in the evidence to show whether the appellee had knowledge of or gave his approval to this arrangement before the fire occurred, but after the fire appellee paid Ritter for the damages sustained by him in the fire and for his services as an employee of appellee.

The balcony in the theatre extended across the front of the theatre building. It contained a narrow hallway running the width of the building, reached by a stairway from the first floor; the office of the theatre; and the projection booth. On one side of the hallway were a number of windows which opened onto a canopy over the entrance to the theatre. The projection booth and the office of the theatre were on the opposite or the theatre side of the hall. The door to the projection booth was approximately in the center of the hallway. The booth was a small room measuring approximately 12 × 14 feet. It contained two projection machines and a rewind table. The rewind table held apparatus for rewinding films which had been run through the projectors. A reel or spool of film taken from a projection machine was placed on a spindle attached to an upright on one end of the rewind table, and one end of the film to be rewound attached to a similar spool placed on a spindle at the opposite end of the table. This latter spindle was operated by an electric motor, which by rotating the spool attached to the spindle accomplished the rewinding of all of the film except a portion of it from four to six feet in length which remained unwound after the motor was stopped. At this point in the rewinding operation the spool on which the film had been rewound was removed from the spindle and the depending portion wound upon it by hand, the operator turning the spool in his hands until the film was completely wound on the spool. One end of...