Perry v. Carolina Theater

• Decision Date: 16 April 1936
• Docket Number: 14282.
• Citation: 185 S.E. 184,180 S.C. 130
• Parties: PERRY v. CAROLINA THEATER.
• Court: South Carolina Supreme Court

185 S.E. 184

180 S.C. 130

PERRY v. CAROLINA THEATER.

No. 14282.

Supreme Court of South Carolina

April 16, 1936

Appeal from Richland County Court; A. W. Holman, Judge.

Action by Joseph Edward Perry, by his guardian ad litem, Carrie E Perry, against the Carolina Theater. Judgment for plaintiff and defendant appeals.

Reversed and remanded.

Herbert & Dial, of Columbia, for appellant.

Cole L Blease and Legare Bates, both of Columbia, for respondent.

FISHBURNE Justice.

The defendant operates a moving picture theater in the city of Columbia, which is known as the Carolina Theater. The plaintiff, a boy thirteen years of age, recovered a judgment of $250 actual damages against the defendant, arising out of its alleged negligence in permitting a stray dog to enter its theater and bite him on the leg while he was attending the exhibition of a moving picture therein, from which he alleged that he suffered serious injury.

At the conclusion of all the testimony the defendant made a motion for a directed verdict, upon the ground that the testimony showed no actionable negligence on the part of the defendant company; there being no testimony that the defendant had any knowledge or notice whatever of the presence of a dog in its theater on this occasion. This motion was overruled, and the case was submitted to the jury. The complaint alleged willfulness, but the trial judge directed a verdict in favor of the defendant as to punitive damages.

After the rendition of the verdict in favor of the plaintiff, the defendant entered a motion for a new trial on the minutes of the court, on the ground that there was no evidence to support the verdict. This motion was denied by the trial court, in a lengthy and elaborate order, in which the trial judge expressed doubt as to whether he was right or wrong on the question of the alleged negligence of the defendant, but he reached the conclusion that there was at least an inference of negligence.

No case is cited in the order of the trial court nor in the briefs of counsel for the appellant or for the respondent which is analogous to the facts in this case.

Although there are thousands of moving picture theaters in this country, attended by millions of people, and although there are in the United States probably a million dogs, of every kind, description, and station in life, an extended search of the authorities has not brought to light a single case similar to this one. This would seem to argue one of four things: (a) Dogs do not frequent theaters; (b) if they do, they are well behaved; (c) a vigilant watch is maintained to keep them out; (d) if present and ill-disposed, our people suffer their wounds or their humiliation in silence. However, merely because a particular thing has never happened before is no conclusive argument that it cannot or may never occur. There must always be, of necessity, a first link in a chain, a starting point, and we seem to have it here.

The testimony for the plaintiff tends to show: That one afternoon in August, 1934, he purchased an admission ticket from the defendant, and entered its theater for the purpose of seeing a very popular picture, the exhibition of which was attended by large crowds of people. He gives the following account as to how the accident occurred: "As I was walking down the aisle, I was just walking down and looking up at the picture, and all at once I felt something, and I turned around, and it was a dog, and it bit me on the leg. And I did not say anything but walked on down and told my sister."

His sister had preceded him to the show, and she and the plaintiff remained in the building some time looking at the picture. They left the theater shortly before dark, went home, and reported to their mother that the plaintiff had been bitten by a dog in the theater. The mother thereupon went to the theater with the plaintiff, and interviewed the defendant's ticket agent, who told her that he had not seen any dog. He called one of the ushers, who said that he had chased a dog out of the theater about thirty minutes before. This statement is denied by the usher. The assistant manager of the defendant was then called, and was shown the wound on the plaintiff's leg, and where the dog had torn his pants. Acting upon the suggestion of the assistant manager, the boy's mother took him to a physician, who gave him the anti-rabies treatment, which was furnished free by the government.

The sister of the plaintiff testified that the plaintiff came and sat beside her in the theater, and told her that a dog had bitten him on the leg. She does not state that he told her that the biting had actually occurred in the theater, nor does it appear that the plaintiff, while he was in the building, told any one else that he had been bitten by a dog. His sister further stated that on the afternoon in question she did not see any dog in the theater; that on previous occasions she had seen dogs down by the steps of the theater, but that the ticket agent would always run them out.

The testimony for the defendant tends to show that no dog had ever been seen in the theater prior to the time of the accident, nor had any dog been seen in the theater on the afternoon the boy alleged that he was bitten. At the time of the alleged occurrence there was on duty at the theater the receiving ticket agent, at the inner portal, the assistant manager, the assistant floor man, who is also known as the regular door man, the chief usher, who supervises the service staff, and whose duty it is to oversee the several ushers. All of these employees testify positively that they did not see any dog in the theater; that occasionally dogs would follow children into the outer lobby at the box office, near the street, but that they were always promptly chased away, and that none to their knowledge had ever gotten into the theater itself; that their instructions were to keep dogs out of the theater.

The plaintiff is the only witness who testified that he saw the dog. He made no outcry at the time, and made no complaint to the defendant until several hours later, when he went with his mother to interview the theater management, as already stated. There is an absolute dearth of testimony as to how the dog got into the theater, or that the defendant had the slightest knowledge or notice of its presence prior to the alleged biting. As to necessity of knowledge, see Bradford v. F. W. Woolworth Co., 141 S.C. 453, 140 S.E. 105.

The trial Court submitted the case to the jury on the issue of actionable negligence on the part of the defendant.

It was held in the recent case of Pope v. Carolina Theater, 172 S.C. 161, 173 S.E. 305, that the proprietor of a theater or other place of public amusement is not an insurer of the safety of his patrons, and is held to ordinary care only. In this case, a patron sued the defendant to recover damages alleged to have been suffered when she tripped over a defective rug and fell.

A similar rule was announced in Bradford v. F. W. Woolworth Company, 141 S.C. 453, 140 S.E. 105, with reference to the liability of a merchant who invites the public to his premises.

It has very generally been declared that the proprietor of a theater or other public place of amusement must exercise that degree of care which under the same or similar circumstances would be exercised by an ordinarily careful or prudent man. 62 C.J 867....