Howland v. Tri-State Theatres Corporation

• Decision Date: 05 January 1944
• Docket Number: No. 12635.,12635.
• Citation: 139 F.2d 560
• Parties: HOWLAND v. TRI-STATE THEATRES CORPORATION.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F.2d 560 (1944)

HOWLAND v. TRI-STATE THEATRES CORPORATION.

No. 12635.

Circuit Court of Appeals, Eighth Circuit.

January 5, 1944.

George A. Lee, of Lincoln, Neb., and Emmet S. Brumbaugh, of Omaha, Neb. (Lee & Bremers and Gray & Brumbaugh, all of Omaha, Neb., on the brief), for appellant.

George L. DeLacy, of Omaha, Neb. (J. A. C. Kennedy, Yale C. Holland, and Ralph E. Svoboda, all of Omaha, Neb., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal from a judgment of a District Court dismissing the complaint in an action for damages for personal injuries.

The appellee corporation operates a theatre in Omaha, Nebraska. Appellant is a resident of Council Bluffs, Iowa. On the night of his injury, appellant, accompanied by his wife and the wife of a brother employed by appellee as a stagehand, was in Omaha for the purpose of attending an auction. After the auction the party called at appellee's theatre, for the purpose of taking appellant's brother home when the theatre closed after the night's performance, entering the theatre through a rear door, from which they proceeded to the stage to await the closing of the house. The door through which they entered was usually kept locked, but for some reason, unexplained in the evidence, it was open on the night of the accident. The call at the theatre, however, was not made by prearrangement with appellee's stagehand employee, nor with the knowledge or consent of any officer of the appellee corporation, nor was it according to a custom known to appellee's officers.

It was the duty of appellee's stagehand employee to close the theatre after the last performance for the night. This required, among other things, that he lower the asbestos fire curtain with which the stage was equipped, and then raise it to a point ten or twelve feet above the level of the stage floor and leave it in that position over night. On the occasion involved in this action, the mechanism operating the curtain worked as usual and satisfactorily while the curtain was being lowered. However, when the stagehand attempted to raise it, the mechanism failed to work. The stagehand was unable to raise it to a point more than two feet above the stage floor. The curtain was raised and lowered by a system of steel cables, pulleys, and counterweights, which permitted its operation ordinarily by one stagehand by pulling on a rope attached to the cables and situated at one end of the curtain. The mechanism was also designed to work automatically in case of fire, in which event, fusible links in the steel cable were melted by the heat generated by the fire, causing the release of a counterweight suspended at a point approximately sixty feet above the stage floor, the descent of which automatically lowered the curtain.

The stagehand on duty made an inspection of the mechanism by which the curtain was operated and was unable to discover the cause of its failure to operate. He announced his intention of calling on the telephone one Kemp, the employee of the theatre who had charge of the repair and maintenance of the curtain-operating mechanism. There was, however, present on the stage another employee of appellee, who was not on duty at the time. He was there only for the purpose of a social visit with the stagehand on duty. He suggested that before Kemp was called that he and the appellant would attempt to raise the curtain by pulling on the rope designed for that purpose, while the stagehand placed a stepladder under the curtain, presumably to hold it at the proper level. Appellee's employee accepted this offer. When the attempt to raise the curtain was made, the heavy counterweight of the mechanism, automatically operating the curtain in case of fire, fell to the stage, striking and seriously injuring appellant.

The theory upon which appellant's action is founded is that, upon the invitation of appellee's stagehand on duty to assist him in the raising of the curtain, he became in that operation an employee of the appellee corporation, and, as such, entitled to a safe place in which to work.

Appellant charged negligence on the part of the theatre company in the maintenance of the mechanism by which the asbestos fire curtain was operated, alleging failure of the company to exercise ordinary care in the inspection and maintenance of the equipment, failure to have on duty at the time of the accident an employee properly skilled in its operation, and failure to warn the appellant of the dangers, unknown to him, incident to his supposed employment. A motion to dismiss was made at the conclusion of the appellant's evidence. The district judge concluded on this evidence that appellant at the time of his injury was a mere licensee on appellee's premises, to whom appellee owed no duty except to refrain from wantonly and willfully injuring him; and further that, even if appellant at the time of his injury was an invitee, or an employee of appellee by invitation, the evidence on his behalf failed to show negligence on the part of appellee as charged in the complaint. Error is assigned in respect to both conclusions.

Since a master is responsible for the negligence of his servants committed in the course of their employment, and is also under the duty of exercising reasonable care to furnish his servants with a safe place in which to work and with safe appliances for use in his work, he has the absolute right to say who his servants shall be and to fix the scope of their employment and the limits of their authority. It is not contended by appellant that the appellee corporation, or anyone having express authority from the appellee corporation so to do, employed the appellant to assist in raising the curtain in the theatre. But appellant contends that appellee's stagehand, in the circumstances revealed by the evidence, had the implied authority to employ appellant to assist in raising the theatre curtain to the required height above the stage, and that appellant, therefore, became an employee of appellee for the time being and, as such, entitled to a safe place in which to work. Appellant relies upon the well-recognized rule that the law implies the authority of a servant, otherwise unauthorized, in cases of emergency arising in the course of his employment, to employ necessary help in the interest of the master. Baltimore & O. S. W. R. Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Booth & Flynn v. Price, 183 Ark. 975, 39 S.W.2d 717, 76 A.L.R. 957; Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 273 N.W. 783. And see Maxson v. J. I. Case Threshing Machine Company, 81 Neb. 546, 116 N.W. 281, 16 L.R.A.,N.S., 963. The infirmity in appellant's case, however, as the trial judge found, is that the evidence on his behalf failed to establish the existence of an emergency justifying the exercise by appellee's stagehand of an authority which he otherwise did not possess.

As showing the existence of an emergency authorizing appellee's stagehand to employ assistance in the interest of the appellee corporation, a rule of the Fire Department of the City of Omaha, requiring the raising of the asbestos curtain to a height of ten or twelve feet above the stage floor at the close of the theatre at night, is relied on. The purpose of this municipal regulation was to permit a night watchman or any person in the front of the theatre...