Stager v. G.E. Lothrop Theatres Co.

• Decision Date: 10 July 1935
• Citation: 291 Mass. 464,197 N.E. 86
• Parties: STAGER v. G. E. LOTHROP THEATRES CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 464

197 N.E. 86

STAGER v. G. E. LOTHROP THEATRES CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 10, 1935

Exceptions from Superior Court, Suffolk County; Macleod Judge.

Action of tort by Louis Stager against the G. E. Lothrop Theatres Company. Verdict was for plaintiff for $1,500 of which, by order of the court, plaintiff remitted $750, and defendant brings exceptions.

Exceptions overruled.

J. F Cavanagh, of Boston, for plaintiff.

E. A. Whitman, of Boston, for defendant.

LUMMUS, Justice.

The plaintiff got a verdict for an assault and battery committed by a special police officer who was employed by the defendant to keep order at the Howard Theatre. There was evidence for the plaintiff that the officer struck him without warning and without provocation. There was contrary evidence for the defendant that the plaintiff received his injury by accident during the reasonable attempt of the officer to eject the plaintiff after he had been ordered to leave because of his noisy conduct and had refused to go.

The first instruction requested by the defendant was as follows: ‘ The plaintiff having purchased a ticket for the performance at the defendant's theatre was a mere licensee and as such the defendant owed him no duty except to refrain from wantonly and wilfully causing him harm.’ Even if this had been a case of alleged negligence instead of assault, this instruction could not have been given. It confuses two different uses of the word licensee. In the law of real property, the purchaser of a theatre ticket is a licensee and not a lessee. Essex Theatres Co. v. Commonwealth, 265 Mass. 210, 213, 163 N.E. 747. But in the law of negligence he is an invitee entitled to reasonable care for his safety, and not a mere licensee whose presence is only tolerated and who is entitled only to freedom from wilful or wanton injury. Tovey v. G. E. Lothrop Theatres Co. (Mass.) 193 N.E. 19. In the case at bar, which was for assault, the requested instruction would have been a useless abstraction, even if it had been correct. Commonwealth v. McKnight, 283 Mass. 35, 40, 186 N.E. 42.

The second instruction requested by the defendant read: ‘ The plaintiff being a licensee in the defendant's theatre, the theatre had the right to revoke that license at any time and after such revocation the plaintiff became a trespasser in the theatre and the defendant had a right to remove him by the use of such degree of force as his resistance should render necessary for that purpose.’ Generally speaking, that requested instruction stated the law. Burton v. Scherpf, 1 Allen, 133, 134, 79 Am.Dec. 717; Ryan v. Marren, 216 Mass. 556, 559, 104 N.E. 353, Ann.Cas. 1915B, 760. In the charge the judge without exception by the defendant, made the right to revoke the license and eject the plaintiff depend upon actual misconduct on the part of the plaintiff. In that respect the charge did not conform to the law. But the instruction requested was not material to the contention of either party. The defendant's evidence, if believed, showed such misconduct, while the plaintiff's evidence was that no word of revocation preceded the blow. No secondary line of attack or defence appears to have been prepared. Even if the jury might have pieced together parts of the utterly contradictory evidence to find a state of facts to which the requested instruction would apply (Limoges v. Limoges, 287 Mass. 260, 191 N.E. 639), the verdict ought not to be disturbed because of an exception to the refusal of an instruction which could be made material only by synthesis of fragments of conflicting evidence, never suggested, so far as appears, by either party. ...