Interstate Amusement Co. v. Martin

• Decision Date: 15 May 1913
• Citation: 62 So. 404,8 Ala.App. 481
• Parties: INTERSTATE AMUSEMENT CO. v. MARTIN.
• Court: Alabama Court of Appeals

62 So. 404

8 Ala.App. 481

INTERSTATE AMUSEMENT CO. v. MARTIN.

Court of Appeals of Alabama

May 15, 1913

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by I.D. Martin against the Interstate Amusement Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The charge referred to in the thirteenth assignment of error is as follows: "If one Cummings was engaged by the defendant, Interstate Amusement Company, and paid by it for certain performances on the stage, with the production of which the Interstate Amusement Company had nothing to do your verdict should be for the defendant."

Allen &amp Bell, of Birmingham, for appellant.

Bondurant & Smith, of Birmingham, for appellee.

WALKER P.J.

The second count of the complaint, as it was amended, avers that on a date named the defendant was operating a theater where performances and entertainments were given for a consideration, and to which the public were invited, that the plaintiff purchased a ticket which entitled him to admission to a performance given by the defendant on that day, one of the acts of which was an exhibition by a named agent or servant of the defendant, and that during the performance of that act said agent or servant, while he was acting in the line and scope of his employment, did invite plaintiff to the stage and, in the presence of the audience addressed to him insulting and defamatory language, which is set out. It sufficiently appears from the averments of this count that the plaintiff was present at the performance mentioned, by virtue of the ticket for which he had paid. The suggestion made in the argument of the counsel for the appellant that the count is faulty because of the absence of specific averments to the effect that the plaintiff presented his ticket and was admitted to the theater is hypercritical.

While a ticket to a theater or other place of amusement may not confer upon the holder of it such a right to a seat or place to see the performance as to entitle him to maintain an action of trespass for being excluded therefrom, yet it constitutes a contract between the proprietor and the purchaser of the ticket; and whatever contractual duties grow out of such relation, the proprietor is bound to perform or respond in damages for breach of his contract. Horney v. Nixon, 213 Pa. 20, 61 A. 1088, 1 L.R.A. (N.S.) 1184, 110 Am.St.Rep. 520, 5 Ann.Cas. 349; Taylor v. Cohn, 47 Or. 538, 84 P. 388, 8 Ann.Cas. 527; 38 Cyc. 265.

It is not to be doubted that one of those duties is to accord to the ticket holder civil treatment while he is exercising the privilege for which he has contracted. This duty is one that may be breached by the proprietor himself, or by mistreatment at the hands of an employé while acting within the range or scope of his employment, and the mistreatment may consist in the use of uncivil and offensive language addressed to or spoken about the ticket holder.

It is suggested in the argument of the counsel for the appellant that, as the latter is a corporation, it cannot be held to liability for slanderous words uttered by its employé, and in support of this position reference is made to the ruling in the case of Singer Mfg. Co. v Taylor, 150 Ala. 574, 43 So. 210, 9 L.R.A. (N.S.) 929, 124 Am.St.Rep. 90. In the opinion rendered in ...