Interstate Circuit v. Le Normand

• Citation: 100 F.2d 160
• Decision Date: 01 December 1938
• Docket Number: No. 8903.,8903.
• Parties: INTERSTATE CIRCUIT, Inc., v. LE NORMAND et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

100 F.2d 160 (1938)

INTERSTATE CIRCUIT, Inc., v. LE NORMAND et al.

No. 8903.

Circuit Court of Appeals, Fifth Circuit.

December 1, 1938.

Newton Gresham, of Houston, Tex., for appellant.

Ira J. Allen, of Houston, Tex., for appellees.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

L. LeNormand and wife, Mrs. Esther LeNormand, recovered judgment for seven hundred and fifty dollars against Interstate Circuit, Inc., a Delaware Corporation. The suit was for damages for personal injuries and destruction of wearing apparel suffered by Mrs. LeNormand as the result of burns received by her following an explosion and fire in the appellant's theater in Houston, Texas.

The plaintiffs' petition alleged specific acts of negligence; that the defendant was negligent, among other things, in permitting gas and other inflammable substances to accumulate in the heating and ventilating ducts of the theater; in failing to have the system inspected; and in permitting the aisles to become blocked and congested in violation of a city ordinance. As an alternative cause of action the plaintiff alleged that defendant was negligent in the operation and maintenance of the theater in particulars well known to it "due to its exclusive control, knowledge and management", and that said accident or calamity was one that in "the ordinary course of things does not happen where those who have the management of a theater use proper care".

The evidence was without dispute that Mrs. LeNormand was severely burned about the legs as a result of an explosion and fire in the Kirby Theater on October 27, 1936. While Mrs. LeNormand was attending the picture show and seated in the theater there was a sudden flash-like explosion on the floor beneath her seat; the explosion and fire coming from the general vicinity of a mushroom type ventilator used to draw stale air from the theater. Witnesses testified the flash was followed by a heavy cloud of gray or white smoke and that after the flash there was some smoldering material on the floor which some said had the appearance of being part of an old stocking. A chemist testified that this stocking material was permeated with sulphur.

At the conclusion of the testimony the defendant, appellant, moved for an instructed verdict. The trial court overruled the motion and the case went to the jury which returned a verdict for the plaintiff; thereupon comes this appeal.

Negligence cannot usually be inferred from the mere happening of an accident itself. In this case there is no question but that an accident occurred and that the plaintiff was injured. She was injured by a flash of fire; its origin or source, at most, is a matter of speculation. While evidence showed that the flash came from the vicinity of the floor ventilator it wholly failed to disclose the cause of same, or that it resulted from any negligence on the part of the defendant. The...