Year book of motion pictures (1928)

suggested they communicate with the Association Opposed to Blue Laws, at 817 Thirteenth St., N. W., Washington, D. C. This association, incidentally, supplies counsel, favorable banners and advertising material, talkers, etc., to exhibitors or organizations desiring to lift the ban in their town, or to fight a pending measure. * * * CASES INVOLVING INJURY TO PATRONS From time to time, there has been considerable discussion relative to the liability of theater proprietors for damages as a result of injuries to patrons caused by persons who have concessions to sell candy, ice cream, soft drinks, booklets, and the like, in theaters. Generally speaking, a theater owner is liable for an injury caused by means within his control. And, furthermore, although the cause of the injury is not within his exclusive control, he is liable if he knowingly permits instrumentalities to exist which, by the exercise of ordinary care, he should have known would result in the injury. CONCESSIONAIRE LIABLE IN THEATER— In the case of Block vs. Opera Holding Co., (Ref.) 154 N. E. 761, a theater proprietor was held not liable for the injuries' sustained by a patron upon whom lemonade was spilled by the employee of a person who had a concession to sell such products in the theater. The facts of the case are that a woman patron sued the theater proprietor for damages to recover for injury to her person and damage to her clothing, caused by the spilling of lemonade upon her while occupying a seat in a theater during a public performance. The woman was seated at the lower end of an isle in the balcony. At the upper end of this aisle was a large container of lemonade which was sold to persons in the audience. The employee who spilled the lemonade testified that for four years he had been the manager of a "concession" to sell lemonade in the theater, and that he was not paid by the theater owner but by another person who had the concession from the theater owner to maintain a stand at the head of the aisle. None of the lemonade was sold to persons in the audience while in their seats. It appears from the testimony that while the patron was in her seat watching the performance, and while the theater was dark, the vat of lemonade was overturned and a large quantity of it was spilled upon her, as a result of which she became ill by the shock and, also, her clothing was damaged. The patron sued the theater proprietor for damages contending that he had negligently permitted the injury inflicting vat of lemonade to remain in the theater. The litigation was carried into the higher Court which held the theater proprietor not liable, and said : "The defendant (theater owner) leased the privilege of selling lemonade at the stand at the end of the passageway to the employer of Heller, and Heller was the manager of that business, yet there was no evidence to show he was in the employ of the defendant (theater owner), nor that the defendant had anything to do with the sale of lemonade in the theater. . . . While the mere occurrence of an injury sometimes raises a presumption of liability on the part of a defendant (theater owner) yet in such cases it must appear that the instrumentality causing the injury was in his control. All that appears in the present case is that the lemonade was spilled on the patron. The evidence does not show that it was the property of the defendant (theater owner) or within its control." Therefore, the law is established that where a theater proprietor leases or rents a portion of the theater to another person to transact a legitimate business, the nature of which is not dangerous, the theater owner is not liable for injuries caused by the lessee, or owner of the concession. NEGLIGENCE OF EMPLOYEE MUST BE PROVED — The outcome of a recent high court case, although not directly involving a theater owner, is very important for the reason that the same points of the law have been involved in numerous past litigations where patrons have sued theater proprietors for damages as a result of injuries sustained when being guided to seats by ushers. In the litigation of Micoletti vs. Park (Ref.) Circuit & Realty Co., 287 S. W. 661, the proprietor of an amusement park was held not liable for damages as a result of injuries sustained by a patron. A review of this litigation imparts interesting facts of the attitude of the court in cases where a patron claims damages as a result of carelessness of a theater or amusement park employee. The facts of the case are a proprietor operated and maintained in a pleasure resort and park a building in which he conducted various forms of amusement, which the general public were invited upon the payment of an admission. Among the amusements was a slide or incline upon which patrons were permitted to slide from a raised elevation in the building to a floor at a lower elevation while seated upon a small carpet or pad furnished by proprietor. After paying the regular entrance fee the two girls seated themselves upon the pad at the top of the incline and the attendant in charge started them down the incline by pushing them in a usual manner. The girls fell off the pad and were severely injured in making the descent in topsyturvy manner. They sued the proprietor, alleging that the attendant at the moment they were about to com mence their descent down said slide or incline, carelessly and negligently, and with great force and violence, suddenly and without warning pushed or shoved them down the slide or incline, causing them to descend with great rapidity and speed, and causing them to lose their balance and fall backward upon the slide or incline. However, the Court held the proprietor not liable for the reason that the evidence did not clearly disclose that the attendant was at fault. THEATER IN WEST VA. HELD LIABLE — Laws of West Virginia, holding an amusement company not to be an insurer of the safety of persons visiting a theater and injured as a result of defective equipment, unless proof of knowledge of such defect by the company can be given, are held by implication to be invalid, as a result of the refusal of the supreme court to go further into the case of Marianita Truschel against the Rex Amusement Co. in April, 1927. The plaintiff was injured by falling down a staircase as a result of tripping on a defective carpet and was awarded damages in the sum of $18,000 in the West Virginia courts. The company appealed to the Federal court, which refused to rehear the case. * * * INFRINGEMENT OF THEATER NAMES IMPORTANT DECISION AFFECTING SIMILARITY — For the reason that in numerous instances, the names of theaters in the same city are similar in appearance and in articulation, the outcome of the case of Cleveland Opera Co. vs. Cleveland Civic Opera Ass'n, (Ref.) 154 N. E. 352, decided recently, imparts valuable information on this subject. The facts of the case are in 1920 the Cleveland Opera Co. was organized. In 1924 a different company, at a different location, was organized under the name of the Cleveland Civic Opera Ass'n. The former company filed suit to prevent the latter from using the selected name. Generally speaking, names used to indicate businesses, as theaters, are legally known as "tradenames" and are quite different from "trade-marks." The latter relate specifically to the names of salable merchandise and may be registered in the U. S. Patent Office. Moreover, tradenames, as applied to businesses, are not registerable. However, the owner of an infringed trade-name may sue the infringer on the grounds of unfair competition. It has been held in numerous instances that unfair competition is not confined to the imitation of a trade-mark, but takes as many forms as the 787