Owens v. Hagenbeck-Wallace Shows Co.

• Decision Date: 08 May 1937
• Docket Number: No. 7695.,7695.
• Parties: OWENS et al. v. HAGENBECK-WALLACE SHOWS CO.
• Court: Rhode Island Supreme Court

192 A. 158

OWENS et al.

v. HAGENBECK-WALLACE SHOWS CO. ^*

No. 7695.

Supreme Court of Rhode Island.

May 8, 1937.

[Copyrighted material omitted.]

Exceptions from Superior Court, Providence and Bristol Counties; Leonidas Pouliot, Jr., Judge.

Action of assumpsit by Buck Owens and another against Hagenbeck-Wallace Shows Company. The plaintiffs filed a remittitur of so much of the $4,500 verdict in their favor as was in excess of $4,000, and the defendant brings exceptions.

Exceptions overruled, and case remitted for entry of judgment on verdict as reduced by remittitur.

McKiernan, McElroy &. Going, Peter W. McKiernan, and John C. Going, all of Providence, for plaintiffs. Adler & Flint, Walter Adler, and Martin M. Zucker, all of Providence, for defendant.

BAKER, Justice..

This is an action of assumpsit in which the plaintiffs seek to recover damages for the alleged breach by the defendant of a written contract entered into by the parties. The case was tried in the superior court to a jury, which returned a verdict for the plaintiffs for $4,500. The defendant filed in that court a motion for a new trial, which motion was granted by the trial justice, unless the plaintiffs should file a remittitur of so much of the verdict as was in excess of $4,000. The plaintiffs filed such remittitur, and the defendant then prosecuted to this court its bill of exceptions, containing exceptions to certain rulings made during the course of the trial, to the refusal of the trial justice to direct a verdict in its favor, to charge the jury as it requested, and to grant unconditionally its motion for a new trial. Certain of these exceptions have been specifically waived by the defendant, and others, not briefed or argued, are deemed to have been waived by it. The remaining exceptions now to be considered fall into several groups and are so treated herein.

From the evidence it appears that the defendant corporation, which operated a circus, after correspondence and negotiations with the plaintiffs, who are husband and wife, agreed in writing at Peru, Ind., on February 21, 1934, to employ them to carry out certain duties and present certain acts during the season of 1934 in connection with the showing of the circus, and especially in relation to that part known as the Wild West concert, Mr. Owens being the owner of a trained or trick horse. The defendant started its season April 15, 1934, in Indiana, the plaintiffs traveling with the circus from place to place and taking part in the performance. The circus season that year ended approximately November 15.

While the defendant was holding its circus in Boston, Mass., on June 30, 1934, it gave written notice to the plaintiffs that it would terminate its contract with them on July 14 next, the defendant claiming the right so to do by reason of a clause in the contract, which provided in substance that the plaintiffs should present their act to the entire satisfaction of the defendant. The circus was held in Fall River, Mass., on the last-mentioned date, and that night came to Providence, in this state, where it was to hold a performance July 16. The defendant transported the plaintiffs to Providence from Fall River, and, while the circus was showing in Providence, the present suit was commenced.

The defendant's twelfth exception is to the refusal of the trial justice to declare a mistrial and take the case from the jury on the ground that they had been permitted to view the showing of a certain motion picture in which the plaintiff Mr. Owens and his trained horse had taken part. It is the contention of the plaintiffs that the showing of this picture was material and proper by way of answer to one of the pleas filed by the defendant. This plea, in substance, alleged that the contract, which was the basis of this action, was obtained from the defendant by the fraud and misrepresentation of the plaintiffs in connection, among other things, with their appearances in numerous moving pictures in which, the plaintiffs claimed, they and their horse had been featured.

In pressing the above exception, the defendant has attempted to have us pass upon the correctness of the ruling of the trial justice in permitting the jury to view this picture. This unusual procedure should be resorted to, if at all, with extreme caution. If for any reason it should ever become necessary and proper for a jury to view a moving picture during the course of a trial, it should be made to appear clearly to the trial justice that the picture was a true reproduction of the scene photographed and was properly authenticated according to the rules of evidence. Otherwise, because of the skill and development in the fabrication of moving pictures and the possibilities of producing desired effects by cutting and other devices, a jury might receive misleading and prejudicial impressions as to important issues in a case.

In the present proceeding, however, the record does not permit us to review the action of the trial justice which the defendant now complains of, because the record reveals that, although the defendant argued against having the jury see the picture in question, the defendant took no exception to the ruling of the trial justice allowing them to do so. In fact, the defendant's attorney made the following statement, among others, when the matter was being discussed: "* * * I do not wish to deprive the jury of the opportunity of viewing a movie. * * *" Therefore, having failed to take an exception to the exhibition of the picture, the defendant cannot base his motion for a mistrial upon the sole ground that the picture was inadmissible in evidence. The defendant's twelfth exception to the trial justice's refusal to grant its motion to declare a mistrial is overruled.

Three of defendant's exceptions, taken at different times during the trial, were to the refusal of the trial justice to declare a mistrial on the ground that improper references had been made by Mr. Owens in his testimony to some possible business connection existing between the defendant and the Ringling Bros. and the Barnum & Bailey interests. The defendant's contention is that such references were prejudicial to it as tending to create sympathy for the plaintiffs with the jury. An examination of the transcript shows that the allusions in question were made while the witness was being examined concerning other issues and were of a somewhat vague and indefinite nature. The matter was not followed up or enlarged upon. One such occurrence took place while Mr. Owens was under cross-examination. While possibly the evidence brought out on these occasions was not material to the main questions before the jury, we fail to see that its introduction into the case by the witness was harmful to the defendant. In our judgment, the trial justice, in ruling as he did in these instances, did not, under the circumstances then existing, abuse the discretion vested in him. These exceptions of the defendant are therefore overruled.

The defendant's fifteenth exception is also without merit and is overruled. This exception is to the refusal of the trial justice to permit the defendant's attorney to ask in direct examination a question of a witness for the defendant, the alleged object of which was to impeach certain testimony previously given by Mr. Owens. Assuming that the answer to the question in issue would have had such a result, which is by no means clear from the record, the point involved was immaterial, and the ruling of the trial justice was correct.

Several of defendant's exceptions are to the ruling of the trial justice in admitting in evidence certain exhibits offered by the plaintiffs. These exhibits are of a similar nature. Each one contains a cut or picture of Mr. Owens, some depicting him riding a horse, followed by a write up or newspaper story setting out in laudatory language, different in each instance, his experience and capability as a rider, cowboy, and actor in motion pictures. It appears from the evidence that these exhibits were taken from newspapers published in various parts of the country where the defendant showed its circus in the spring and summer of 1934, while the plaintiffs were in its employ, and were in the nature of advertising or publicity for the circus and its performers. The testimony reveals that the exhibits in question were given to Mr. Owens by the press representative or publicity man connected with this defendant, who attended to that type of work as it related to Mr. Owens, and that the latter preserved them in a scrapbook he kept in the course of his business.

The defendant does not seriously object to the cuts and pictures, but contends that the write ups, so-called, connected therewith are hearsay, and that it does not appear that the press representative in question had any authority to bind or act for the defendant in this connection. The evidence does not disclose definitely what person wrote or inserted in the newspapers in question the reading matter now under consideration. Mr. Owens testified, however, that he himself did not write it or have it published, and that the defendant had a press or publicity staff who wrote and inserted in the papers advertising of that kind, and that the exhibits in question were put in the newspapers by the press staff of the defendant in following out the usual course of procedure in conducting the circus business. The defendant's manager testified in substance, prior to the admission in evidence of the exhibits, that the press agent of the show went ahead to the places where performances were to be held and that it was his duty to have stories and other advertising material published in the newspapers of such places. Further, this witness in effect admitted that the publicity comprising Plaintiffs' Exhibit 22 was put out by the defendant.

A consideration of the transcript leads us to the conclusion that the exhibits in question were sufficiently connected with ...