Kelly v. Dent Theaters

• Decision Date: 17 October 1929
• Docket Number: (No. 841.)
• Parties: KELLY v. DENT THEATERS, Inc.
• Court: Texas Court of Appeals

Page 592

21 S.W.2d 592

KELLY v. DENT THEATERS, Inc.

(No. 841.)

Court of Civil Appeals of Texas. Waco.

October 17, 1929.

Rehearing Denied November 14, 1929.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by G. H. Kelly, against Dent Theaters, Inc. Verdict for the defendant, and plaintiff appeals. Reversed, and the cause remanded.

Clint Allen and S. J. T. Smith, both of Waco, for appellant.

Pat S. Russell, of Dallas, and Spell, Naman & Penland, of Waco, for appellee.

GALLAGHER, C. J.

Appellant, G. H. Kelly, sued appellee, Dent Theaters, Inc., to recover damages for an alleged unwarranted and forcible ejection from a moving picture show in the city of Waco. Appellant's pleadings are sufficient to raise the issues made by the testimony introduced. Appellee pleaded a general denial.

Appellant testified that on Sunday, October 28, 1928, he purchased from appellee a ticket of admission to a moving picture show being exhibited and operated by it; that he tendered said ticket at the door and was admitted and conducted to a seat by an usher; that he occupied the end or aisle seat; that thereafter he rose three times to permit persons to pass him to inside seats and one time to permit a lady to pass out; that he was not a drinking man; that he had not taken a drink of intoxicating liquor that day and was perfectly sober; that he was not provoked nor offended at having to rise to let persons pass in and out; that something of that sort occurred every time he attended a show; that he rose to let said persons pass in and out in a gentlemanly way; that he did not speak to any one, either the people passing to and fro or any one else. He further testified that he had never been indicted or charged with any offense nor theretofore accused of using improper or insulting language in public or to any one. He further testified that when he had been in the room about 10 minutes, one Virgin, the manager of said theater, came up in a rude manner and hit him on the back and said: "You are wanted outside." "I said `For what?' He says, `Never mind, it makes no difference.' I says, `Is there some one wanting to see me outside?' He said, `No, it makes no difference, outside for you.'"

He further testified that in response to said request or command he went to the front; that as he rose and started said manager gave him a shove and followed behind him all the way out; that when he reached the front, just outside the exhibition room and between it and the sidewalk, he was confronted by a policeman summoned by said manager; that said manager said to the policeman: "Here's the man that was using abusive language and that was intoxicated in there." "Then I said, `No.' I said, `No, I am not the one. I am not intoxicated and haven't used no abusive language,' and the young lady (the usher) was standing there and she says, `Yes, he is the one. He is the one that had his feet out in the aisle. I know him by his brown shoes.'"

He further testified that they stated to the policeman that the language used by him was "dammit it to hell, he was tired of getting up"; that they also charged that he replied "dammit" when the usher requested him to rise. He further testified that the policeman then asked him why he would go into a place like that intoxicated and use abusive language, or whether he was intoxicated and had used abusive language, and several questions to that effect; that something was said about the city hall; that the city jail is in the city hall; that the policeman said, "If you are drinking that way, there is where you ought to go;" that 35, 40, 50, or 75 people gathered there; that they filled the whole sidewalk in front of the building; that it was very embarrassing to him to be brought before a crowd like that and stood up in front of a policeman and questioned by him that way, when he knew he was not guilty of what he was accused of; that he was both embarrassed and humiliated; that among the crowd attracted were one or two people who knew him and vouched for his good standing; that the manager said to him, "Well, we don't want you or any one like you to come into this show"; that when he was brought out and confronted with the policeman he did not feel free to go about his way or to go away from there, but felt that he was compelled to stay there with this policeman and said manager; that being a law-abiding citizen and not wanting "to make no break" or run, or anything like that, and not being used to being arrested, he just stayed there; that he considered himself under arrest for a period of 10 to 15 minutes, being the time he was ejected from the show until the policeman told him he might go.

When the examination of appellant was concluded the court peremptorily instructed a verdict for the defendant.

Opinion.

Appellant assigns as error the action of the court in instructing the jury to return a verdict against him. Appellant in his pleadings alleged the facts attending his presence at the moving picture show, his forcible ejection therefrom, the charges made against him by appellant's manager to the policeman, the falsity thereof, and his embarrassment and humiliation on account of the whole transaction, substantially as testified by him; and prayed for the recovery of the amount paid by him for the ticket, and for damages.

The question of the right of one who has purchased a ticket to a place of public amusement to enter the same, or, having entered and been assigned a seat, to remain therein during the exhibition or performance so long as he conducts himself in a proper and lawful manner, has...