Showmen's Trade Review (Oct-Dec 1940)

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Page 44 SHOWMEN'S TRADE REVIEW October 12, 1940 A JUDGMENT against the MathewsSv' Moran Amusement Co., Inc., operators of the "Granada" a moving picture theatre at The Dalles, Oregon has been reversed by the Supreme Court of Oregon. An action was brought against the corporation by Mrs. Alice Johnson for personal injuries sustained through the alleged negligence of the defendant. The plaintiff contended that the corporation was negligent in failing to provide an usher with a flashlight to direct her to her seat, and in failing to have any hand rails for use in descending from the hallway of the balcony to the loge seats. Mrs. Johnson, a woman of 69 and her daughter, Mrs. Pearl Dakan, purchased tickets for the show at the above theatre. After entering the theatre, they decided to take loge seats in the balcony where an additional charge was to be paid to the usher on duty. There were two stairways leading to the balcony. Mrs. Johnson and her daughter ascended the western stairway. The usher was standing at the head of the other stairway. When Mrs. Johnson reached the balcony landing, the picture was being shown, and for obvious reasons, the house was in semidarkness. There were, however, small 10 watt lights burning at the end of each row of loge seats along the footway. The second row of loge seats was on the same level as the balcony landing. The first row of loge seats rested on a floor 11 inches below the balcony landing. There were two steps leading from the landing to the front row of seats.' While her daughter went to the usher to pay for loge seats, Mrs. Johnson, not waiting, proceeded down the steps with the intention of taking the second seat in the front row. She descended the first step, and then thinking she had reached the floor level, stepped forward instead of downward to the second step. As a result she fell forward and struck the end of a seat and sustained injuries. Only Reasonable Care Required Justice Belt in his opinion stated that it is a well established rule that the operator of a theatre is not an insurer of the safety of those who attend theatres. "He is only required to use reasonable care for the safety of patrons. Themere fact that the plaintiff fell while descending the steps is no evidence of negligence. In this modern age when so many people see moving picture shows, it is well known that the theatre must be kept in a semi-darkened condition while the picture is being shown. It is also a matter of common knowledge that when a person comes from a well lighted street into a darkened room, it requires some time for the eyes to become adjusted to the change in light. How often have we seen the theatregoer feel his way about before reaching his seat. All of which suggests tit tlie oCt aw By Herman N. Rabinowitz, LL.B. Member of the New York Bar Recent Decisions by Courts Decree That Usher Is Not Required For Every Patron . . . Liability for Unforeseen Construction Defect . . . Bank Night, Screeno and Question Box not "Added Attractions" . . . Question of Audit Required by Lease . . . that the reasonable thing to do is to wait for the usher with the flashlight. Those who are impatient to wait and are content to step where they cannot see, are assuming a risk of injury for which the theatre operator is not responsible. The defendant was not under the law required to furnish an usher for every patron. Neither can a patron reasonably expect instant service on the part of the usher." The Court finally held that Mrs. Johnson failed to use reasonable care to avoid injury and dismissed the complaint. Unforeseen Construction Defect An unusual type of accident occurred a few years ago in the Strand Theatre on Broadway, New York City, resulting in a recent dismissal of the complaint by the New York Court of Appeals. Sol Duckowitz and Miss Yetta Goldstein attended a performance of a motion picture at the Strand Theatre operated and maintained by the Stanley-Mark-Strand Corporation. While they were walking along the mezzanine floor, not far from the mezzanine balustrade, Mr. Duckowitz was allegedly jostled by the crowd. Stumbling, Mr. Duckowitz shoved Miss Goldstein and they both fell over the mezzanine balustrade and dropped fifteen feet onto people sitting in the orchestra. In the suits for personal injuries that followed, by Mr. Duckowitz and the two people injured in the orchestra, it was alleged that v the railing in the mezzanine was insufficient to prevent an accident, and that the defendant corporation should have foreseen the danger, in the exercise of reasonable care. The evidence disclosed the fact that over the rear section of the orchestra there was constructed in the mezzanine an open oval which was surrounded by a balustrade, 32 inches high and with a 5 inch top. From the top of the railing to the top of the orchestra seats below was 15 feet and 3 inches. It was testified to that the theatre had been operating for 23 years without mishap. The theatre had been de Luxury In Venezuela House Newer theatres in' Latin America are competing with those of the United States in stressing the luxury note. The view left, of the lobby of the Teatro Boyaca, in Caracas, Venezuela, indicates the sumptuous style which characterizes this newest of recent examples of the deluxe theatre now being built by our southern neighbors. The Teatro Boyaca is a first-run theatre which was opened in September. signed by a well known architect whose plans had been approved by the Building Department which had thereafter inspected it annually. The Court of Appeals, in reversing the lower court judgment and dismissing the complaint stated that that the mere fact of the happening of an accident was not sufficient to cast responsibility upon the owner for faulty construction. Although a place may be dangerous and an unavoidable accident may have happened, the owner is not liable for faulty construction simply because the accident could have been avoided, unless he could have reasonably anticipated or foreseen such occurrence. As to the claims of the two people in the orchestra struck by the falling persons, the Court agreed in the contention that such accidents should not happen and that persons attending theatres should not be placed in danger caused by some One or thing falling from above. Yet, the Court went on to state, the same risk would have been run if a person had jumped over the railing. In its opinion, this accident was' one of those unfortunate occurrences for which the law provides no remedy. Annual Audit Held Timely A recent appeal in an action for "forcible detainer" for the possession of the Hollywood Theatre located at 1500 West Fullerton Ave., Chicago, 111. was decided by the Appellate Court of Illinois in favor of the tenant in possession, the Greenview Amusement Company. The Fullerton Greenville Amusement Corp. brought this action against the above mentioned company and against the owner of the theatre, the Hollywood Building Corp. The tenant in possession had a lease to the premises for a term of 15 years, commencing February 1st, 1938 and ending on January 31st, 1953 at a monthly rental of $500, payable on the first day of every month. An additional rental was also to be paid annually to the lessor, of 15',% of the gross annual receipts in excess of $40,000. The defendant tenant was to deliver to the lessor by April 1st of each year a statement of audit certified by an accountant satisfactory to the lessor, and within 90 days after the end of the lease year, a cash adjustment of such additional rental. The plaintiff corporation claims right to possession of the theatre under a lease from the' owner, dated October 15th, 1939 for a term of 15 years. A study of this case discloses the fact that the plaintiff corporation claimed that the lease of the tenant in possession had terminated as it had not provided an audit to the lessor of its annual receipts on or before April 1st as called for in the lease. The testimony showed that the lessor had made no request to the tenant in possession to furnish an audit until July 24th, 1939. In response to this request, an audit made by the bookkeeper of the tenant was sent to the lessor on Aug. 2nd, 1939. The lessor replied by letter on August 10th, 1939 that the audit was unsatisfactory and that it elected to declare the defendant tenant in default on the lease. The tenant subsequently employed a certified public accountant to make an audit, and on November 4th, 1939, sent to the lessor a check for additional rental which was retained. The Appellate Court of Illinois, First District, Third Division in its opinion stated that the lease of the tenant in possession was not terminated. The facts showed that it had paid its monthly rentals and had reasonably complied with the terms of the lease. Another question as to the maintenance of a canopy outside the theatre was also decided in the tenant's favor.