Saenger theatres Corporation v. Herndon

• Citation: 180 Miss. 791,178 So. 86
• Decision Date: 10 January 1938
• Docket Number: 32957
• Court: United States State Supreme Court of Mississippi
• Parties: SAENGER THEATRES CORPORATION v. HERNDON

178 So. 86

180 Miss. 791

SAENGER THEATRES CORPORATION v. HERNDON

No. 32957

Supreme Court of Mississippi

January 10, 1938

Division B

APPEAL from the Circuit court of Forrest county HON. W. J. PACK Judge.

Action by Bessie Herndon against Saenger Theatres Corporation for damages resulting from shame, humiliation, shock, and suffering resulting when statement was made of in presence of others. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Rosen, Kammer, Wolff and Farrar of New Orleans La., and George W. Currie, of Hattisburg, for appellant.

Where the libel is not: actionable per se, mental anguish cannot be allowed as a part of the damages, (if recoverable ill any case) without proof of some other injury or damage.

Odgers, Libel and Slander, 310, note; Corley, Torts, 204 and note; Hirschfield v. Ft. Worth National Bank, 15 L. R. A. 642; Miss. Power Co. v. Harper, 145 So. 887; Doherty v. Miss. Power Co., 173 So. 287.

We submit that the record contains no proof of actual malice, and that, in the absence of any physical injury, there could be no recovery.

We submit that the record demonstrates that no physical injury was sustained by the plaintiff; that there was no wantonness or wilfulness, and no basis for the allowance of punitive damages; that the record contains no words libelous per se, and that there is no allegation or proof of special damages; that the remarks of the ticket boy were in good faith and that they were privileged or qualifiedly privileged and that the plaintiff has proved no malice. The ticket was a mere revocable license, both by its own terms and under the law.

The plea of the general issue puts in issue the utterance of any words; and of the words charged in particular: of their import, and of the intent of their publication. Malice is not implied even from the use of slanderous words, if there is a privilege, justification, palliation or excuse.

Jarnigan v. Fleming', 43 Miss. 725; 13 Am. Berg. Encl. of L. 406; Verner v. Verner, 64 Miss. 321; Railway Co. v. Brooks, 69 Miss. 185: Bradley v. Heath, 12 Pick. R. 163; 36 C. J. 1150, sec, 17.

Both the declaration and set forth express malice and special damage must be done not in general terms but by allegations of fact which show the malice and special damages in such way as that the defendant is of the very facts which he must meet at: the challenge.

The case of Davis v. Farrington; 1 walker 304, held that the words alleged in the declaration there involved were not actionable at common law without allegation of special damages and held that a demurrer should have been sustained to the declaration. The case of Cook v. Weatherby, 5 Sm. & M. 333, was one where it was held that the words did not impute a felonious stealing and proof thereof did not support a verdict.

Sands v. Robison, 12 Sm. & M. 704; Railway Co. v. Broocks, 69 Miss. 185.

Where the communication is upon a privileged occasion and is a privileged communication, the burden is upon the plaintiff, of course, to show actual malice in order to recover.

Hines v. Shumaker, 97 Miss. 686; Stave Co. v. Wells, 111 Miss. 796.

The case of Holliday v. Maryland Cas. Co., 115 Miss. 56, was a suit for libel. The communication was held not to be libelous per se and that, a declaration there(m for libel and slander was insufficient where it did not allege special damages.

37 C. J. 36; Newell on Slander and Libel (4 Ed.), sections 3, 4 and 2(), page 87; Maronne v. Washington Jockey Club of the District of Columbia, 57 L.Ed. 681.

The mere desire and intention to attend a theatrical performance, a dance, a concert, a race, or other such amusement cannot be held to involve any such sentiments or emotions as arise in cases for breach of contract of marriage, or cases against railroad companies for failure to deliver dead bodies in time for funeral services, or against telegraph companies for failure to deliver telegrams relating to sickness and death, so as to allow recovery for mental suffering in suits for breach of contra t' c in refusing admission to such amusements after the purchase of tickets.

Buenzle v. Newport Amusement Assn., 68 A. 721; 45 Cent. Dig., Theaters and Shows, sec. 4.

A ticket of admission to a place of amusement is a revocable license.

Burton v. Seherpf, l Allen 133, 59 Am. Dec. 717; Baxter v. Savoy Shirt Co., 143 N.E. 808; Meisner v. Detroit, B. I. & W. Ferry Co., 118 N.W. 14; Shubert v. Nixon Amusement Co., 83 Afl. 369.

The proprietor of a theater has, in the absence of a statute, the absolute right to decide who shall be admitted to witness the plays he produces.

People ex rel. Burnham v. Flynn, 82 N.E. 169.

Currie & Currie, of Hattiesburg, for appellee.

In the main, the authorities cited by the appellant go upon the theory that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her. We emphatically deny that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her.

Many authorities hold that the right of revocation is not absolute, and we assert that it would violate sound reason, violate every natural human impulse, overthrow every principle of right and justice and establish a most dangerous public policy to hold that the appellant had the absolute right to revoke the license or ticket of the appellee and eject her in the most cruel, inhuman, insulting, abusive and oppressive manner.

Hurst v. Picture Theatres, Ltd., 1 K. B. 1, Ann. Cas., American and English, 1916D 457.

The right of revocation of the license or ticket of the appellee was not absolute.

Bouknight v. Lester, 119 S.C. 466, 112 S.E. 274; Taylor v. Waters, 7 Taunt. 374, 129 Eng. Reprint, 150, 2 Marsh. 551, 18 Rev. Rep. 499; Hurst v. Picture Theatres, 1 K. B. 1, 8 B. R. C. 856, 83 L. J. K. B. N. S. 1837, 111 L. T. N. S. 972, 30 Times L. R. Sol. Jo. 739, Ann. Cas. 1916D 457; Sparrow v. Rap. Jud. Quebec 8 B. R. 379; Barnswell v. National Amusement Co., 21 B. C. 435, 31 Wesst L. R. 543, 23 D. L. R. 615;Aaron v. Ward, 203 N.Y. 351, 38 L. R. A. (N. S.) 204, 96 N.E. 736; Smith v. Leo, 92 Hun. 242, Y. Supp. 949; MacGowan v. Duff, 14 Daly 315, 12 N.Y.S. 680; Drew v. Peer, 93 Pa. 234.

It is conceded that the proprietor of a theatre, a show house or a moving picture, would have the right, under proper circumstances then and there existing, to revoke a license or ticket and eject all offending patron, but there is no evidence in this case proving or tending to prove that the appellee was at the time she was unlawfully, wilfully, wrongfully and oppressively ejected from this theatre, engaged in any unbecoming or offensive conduct, and that being true the appellant was wholly and completely without right to revoke her license or ticket and eject her.

The right to eject, When ejection is necessary or can be justified, does not carry with it the right, power or authority to abuse, insult, oppress or assault, and we assert that even if the appellant had had the right in this case to eject the appellee, which it did not have, it would be liable notwithstanding such right, because of the abusive, insulting and oppressive manner in which it was done. That the appellee was infamously abused, insulted, oppressed and humiliated will not admit of doubt.

26 R. C. L. 718, par. 18; Cremore v. Huber, 18 A.D. 231, 45 N.Y.S. 947; Smith v. Leo, 92 Hun. (N. Y.) 242, 36 N.Y.S. 949; Evans v. Miller, 58 Miss. 120; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Hurst v. Picture Theatres, Ltd., Ann. Cas. 1916D 457.

Hurst v. Picture Theatres, Ltd., Ann. Cas. 1916D 457, was expressly followed in Barnswell v. National Amusement Co., (1915) 23 D. L. R. 615, where the court affirmed a judgment for the plaintiff who had purchased a ticket and had entered the building, but had not entered the auditorium, and was ejected; "He got through the first door and tried to get through the second door, which was a few feet away . . . into "meaning the auditorium. It was held that the plaintiff had entered the building as a spectator who had duly paid his money to see the entertainment, he was therefore entitled to remain.

State v. Walker, I Ohio Dec. Reprint 353; Weber-Stair Co. v. Fisher, 119 S.W. 195; Drew v. Peer, 93 Pa. 234.

Irrespective of the question as to the revocable character of the license, the patron of a place of amusement is entitled to civil treatment.

Ayres v. Middleton Theater Co., 210 S.W. 911; Magoverning v Staples, 7 Lans. (N. Y.) 145; Boswell v. Barnum & Bailey, 135 Tenn. 35, L. R. A. 1916E 912, 185 S.W. 692; Davis v. Tacoma R. & P. Co., 35 Wash. 203, 66 L. R. A. 802, 77 P. 209, 16 Am. Neg. Rep. 621; Interstate Amusement Co. v. Martin, 8 Ala. App., 48:1, 62 So. 404....