Saenger Amusement Co. v. Murray

• Decision Date: 08 May 1922
• Docket Number: 22582
• Citation: 128 Miss. 782,91 So. 459
• Court: Mississippi Supreme Court
• Parties: SAENGER AMUSEMENT CO. v. MURRAY

91 So. 459

128 Miss. 782

SAENGER AMUSEMENT CO. v. MURRAY

No. 22582

Supreme Court of Mississippi

May 8, 1922

1 EVIDENCE. Testimony as to declarations of alleged agent as to fact and extent of agency inadmissible as heresay.

The declarations of an alleged agent as to the fact of his agency and the scope and extent of such agency testified to by another have no probative value. Such evidence only proves the fact that such declarations were made, and do not prove nor tend to prove the ultimate fact of agency and the scope and powers of the alleged agent, It is hearsay and comes within the rule against hearsay evidence.

2 EVIDENCE. Advertisement not sufficient to prove fact advertised in absence of testimony that defendant authorized advertisement.

The advertisements appearing in a newspaper representing defendant as operating a moving picture show conducted in a certain building are not sufficient to prove that fact in the absence of testimony going to show that defendant authorized such advertisements.

3 PLEADING. Defendant may make any defense under plea of general issue founded on mere denial of allegations of declaration;

Where declaration alleged defendant owned picture show, and that plaintiff was injured while employed in such business defendant, under general issue, could show that it did not own or operate picture show.

A defendant may make any defense under the plea of general issue which is founded on a mere denial of the allegations of the declaration. Therefore in a case where plaintiff alleged in his declaration that defendant owned and operated a picture show in a certain building, and that plaintiff was an employee of the defendant in and about the conduct of such business, and while so employed received an injury through the fault of the defendant for which suit is brought, and defendant pleaded the general issue alone, and under said plea offered evidence to show that plaintiff was not its employee because it neither owned nor operated such picture show, which evidence the trial court ruled out on the ground that such defense should have been specially pleaded or notice thereof given, under the general issue, held, the trial court erred in so ruling because such defense amounted to a mere denial of the material allegations of plaintiff's declaration.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Will Murray against the Saenger Amusement Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Tally & Mayson, for appellant.

The evidence offered by appellant in this case, if it had not been excluded by the court, would clearly have shown that prior to April 29, 1918, a man by the name of Anthony J. Xydias owned and operated the said Lomo Theatre and that on that date he sold and transferred the said theatre to the Plaza Amusement Company, a Louisiana corporation, at and for the sum of thirty thousand dollars and that this transaction was no secret but was a matter of public record and that from that date, including the time that appellee claims to have been injured and down to the day of the trial of this case in the court below, that the said Plaza Amusement Company, owned and operated said picture show and that the said appellee, when injured was actually in the employ and working at the said Lomo Theatre for the said Plaza Amusement Company and was not an employee of the appellant in this case.

The newspapers advertising evidence offered on behalf of appellee, would only go to show that this appellant, the Saenger Amusement Company, was a producer or maker of motion pictures in the state of Louisiana and furnished these pictures to the various shows throughout the country, who exhibited their pictures and that the manufacturer, just as any playwright would do, identified his pictures by his mark or advertisement so as to show whose pictures were being presented and it was surely competent evidence to show by the secretary of state's certificate, that the said Plaza Amusement Company was authorized to operate in the state of Mississippi, and that this appellant was not; and to further show this fact by the testimony of C. B. Anderson, the general manager of the Plaza Amusement Company, that the said Lomo Theatre was owned and operated by the Plaza Amusement Company, and not by this appellant, which evidence, viewed as a whole, would conclusively show that appellee had simply sued the wrong party, the result of which would have been for appellee to have gone out of court in the court below, as has often happened, where the plaintiff sued the wrong defendant.

We think that practically the whole case turns upon the erroneous idea of the court below, as to the law of pleadings; and upon this point, we wish to suggest further in the way of argument: suppose a man sues the I. C. Railroad Company for damages alleging that he was hurt on a certain day, at a certain place on the I. C. Railroad, by a locomotive operated by said company, and the said railroad company simply filed the plea of not guilty, can it be said that the I. C. Railroad could not show under that plea that the point where he said he was hurt was on the track of the G. & S. I. Railroad, and that the engine he said struck him was an engine of the said G. & S. I. Railroad and that it was then operated by the G. & S. I. Railroad company employees, without having pleaded those facts specially. If this is the law in Mississippi governing pleading and evidence, then we are mistaken in our contention as to the court's second error.

But even if we are mistaken in that, we contend, that the appellee did not show by competent evidence that he was ever in the employ of appellant. The question of pleading, as raised in this case was also raised in the case of Brownlee Lumber Company v. Gandy, 125 Miss. 71, and the court there ignored the contention altogether.

We contend that the court should have granted a peremptory instruction, directing verdict for the appellant at the conclusion of appellee's testimony and that in not having done so the testimony offered by appellant was competent and admissible and that if it had not been excluded by the court, the court would have been compelled to have granted a peremptory instruction directing a verdict for the appellant at the conclusion of all the evidence.

We therefore respectfully submit that for the errors assigned in this case that this court should not only reverse but should dismiss this case as to this appellant and let the appellee bring his suit against the Plaza Amusement Company as he should have done in the first place.

Davis & Hill, for appellee.

The appellant's main argument for reversal of this cause is upon the ground that the court erred in excluding the testimony of the said C. B. Anderson and documentary evidence offered by the defendant, and in fact, this is the principal argument that is made in its behalf and to this proposition we desire to submit the following observations: "Did the deed from Xydias to the Plaza Amusement Company to the property where the Lomo is situated prove or tend to prove that the Plaza was operating the show?

Did the certificate of the secretary of state that the Plaza was authorized to do business in Mississippi prove or tend to prove that the Plaza was operating the Lomo Theatre at the time of the injury?

Did the certificate of the secretary of state that the Saenger Amusement Company had not been issued a certificate to do business in Mississippi prove or tend to prove that it was not operating the Lomo Theatre at the time of plaintiff's injury?

We respectfully submit that none of said documents prove or tend to prove that the Saenger Amusement Company was not running the show in the Lomo Theatre at the time of plaintiff's injury, nor did they show or tend to show that the Plaza was operating said Theatre at said time. The fact that the Plaza was the owner of the building did not show who was operating the show therein and we submit that it is common knowledge that many enterprises, and especially picture shows, are operated in leased or rented buildings and no inference could be drawn by the jury; we submit that, because the Plaza was the owner of the building that for said reason it was operating the show therein.

Was it error on the part of the court to exclude the proposed evidence of the witness, C. B. Anderson? We respectfully submit that it was not error to exclude it for the following reasons: First, because there was no written plea or notice given by the appellant that it was not operating the Lomo Theatre at the time of the injury of plaintiff but that the Plaza Amusement Company was operating it at that time, and Second, the...