Welcek v. Saenger Theatres Corp.

• Decision Date: 05 January 1942
• Docket Number: 6402.
• Citation: 5 So.2d 577
• Court: Court of Appeal of Louisiana — District of US
• Parties: WELCEK v. SAENGER THEATRES CORPORATION et al.

5 So.2d 577

WELCEK v. SAENGER THEATRES CORPORATION et al.

No. 6402.

Court of Appeals of Louisiana, Second Circuit

January 5, 1942

Appeal from Ninth Judicial District Court, Parish of Rapides; L.L Hooe, Judge.

George J. Ginsberg, of Alexandria, for appellants.

Gist Thornton & Murchison, of Alexandria, for appellees.

TALIAFERRO Judge.

While plaintiff, Mrs. Marie F. Welcek, was viewing a motion picture in the Paramount Theatre, owned and operated by defendant, Saenger Theatres Corporation, in the City of Alexandria, Louisiana, on the afternoon of June 4, 1940, an object of some sort fell from above, or was thrown and struck the fleshy part of her left forearm. She sued the corporation and its insurer, American Mutual Liability Insurance Company, for damages alleged to have been sustained by her from the accident. Mr. Welcek joined and sued to recover the amount of physicians' hospital and drug bills incurred in treating her. For a cause of action, it is alleged:

"That on or about the 4th day of June, A.D., 1940, at some time between the hours of two and four P.M., of that afternoon, the said Mrs. Marie F. Welcek, purchased a ticket of admission to the lower floor of the said Paramount Theatre, entitling her to a seat on said lower floor to view the afternoon performance of motion pictures, and having paid said admission and having been admitted to said theatre and occupying a seat therein, was entitled to view the performance in comfort and safety, without molestation or injury or any interference whatsoever.

"The petition of Mrs. Marie F. Welcek, now further shows that despite the same, while seated and without any fault or reason on her part, at some time before the hour of four P.M. of said afternoon, while she was so seated, without interfering with anyone, suddenly and without warning or prior intimation thereof, she was suddenly struck on the fleshy part of her left forearm, a very severe blow, and for the moment incapacitating her completely, and from which she immediately suffered severe pain and anguish, and became completely stunned, not only by the suddenness and unexpectedness of said blow, but also by the pain and severity of said injury."

* * * * * *

"Petitioner Marie F. Welcek, now further shows that she has no personal knowledge, at the present time, of what actually caused said injury, or what struck her while so seated in the theatre, but that she has been informed by employees of the theatre, that the injury was caused by the dropping or falling of a bottle from one of the theatre boxes, containing seats situated slightly to the side and above and on the second floor of the portion of the theatre where she was occupying her seat, and now shows that despite the duty and obligation of the said theatre to look after and provide for the safety and comfort of its patrons and to see that they are accommodated in a safe place, that the falling of said bottle was an act of the grossest neglect, recklessness and carelessness on the part of said theatre, and its employees, whether the said bottle was propelled by intentional force from above, or through accident or any other reason for same, and that the occurrence thereof is within the principle of res ipsa loquitur, in that same cannot be explained or accounted for by petitioners herein."

Plaintiffs appealed to this court from judgment sustaining exceptions of no cause and no right of action and dismissing the suit.

It is certain that unless the facts of this case warrant the application of the principle of res ipsa loquitur, no cause nor right of action is set up. Without the support of this principle plaintiffs' case falls flatly because they do not positively know what struck Mrs. Welcek nor do they know how it was propelled nor by whom. No inference of negligence arises from proof of an accident unless the circumstances warrant application of the doctrine of res ipsa loquitur.

If the case should be tried on its merits, under the petition's allegations, plaintiffs could only prove that while in the theatre as a paid patron, some object, perhaps a bottle, struck Mrs. Welcek's arm. This being true, would any inference of negligence on the part of the theatre operator arise? We feel sure it would not. Especially should this be true since it is not alleged nor intimated that the defendant, its agents or employees were responsible for the object being in the theatre or had anything to do with the throwing or falling of it; nor that they know who was responsible therefor. Plaintiffs simply say that Mrs. Welcek was hit by some object while viewing the picture, and that the theatre operator should pay the damages therefor.

The effort to hold the operator responsible in damages herein is predicated upon the very exacting laws governing the duties and obligations of theatre operators generally to their patrons. Such duties and obligations are well defined by law. They are likened to those imposed upon carriers and inn keepers, but are not quite so strict or exacting. The following statement of the rule of law applicable to operators of theatres, shows, etc., which has been referred to, and, in whole or part, adopted by several decisions of this and other appellate courts, appears in 62 C.J., pages 867-868, paragraphs (53)D and (55)b, to-wit:

"It has very generally been declared that the proprietor of a theater or other place of public amusement, in order to bring himself within the...