308 Mass. 469 | Mass. | 1941
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff while he was being ejected from a moving picture theatre, owned by the defendant and operated by its agents and servants. The case was heard by the judge sitting without a jury. The judge filed the following “Findings”: “I find Curran [the plaintiff], a boy of fifteen years, was ejected from the premises of the defendant by an agent of the defendant acting within the scope of his employment and with great force and violence. I do not find that the ejection of Curran was warranted, but assuming it were I find that greater force than was reasonable and proper and necessary was used by the defendant’s agent to eject Curran.” The judge assessed damages in the sum of $5,000 on the first count of the plaintiff’s declaration. The case now comes before us on the defendant’s exceptions to the denial of certain requests for rulings.
The evidence in its aspect most favorable to the plaintiff would warrant findings of the following facts. On Sunday
Just before the plaintiff was ejected by Souza the usher in charge of the section of the theatre where the plaintiff was seated had requested Souza to hold the flashlight and stand at the head of the aisle while he went to the washroom; "the usher had to get somebo'dy.” Souza had done work for the defendant from time to time for a period of about six months. He received no money for his work but received passes in return therefor. He delivered "bill boards” and window cards for the defendant. Occasionally he would help. He did anything to help out. He had acted as a substitute usher before and was paid with passes. The manager knew Souza as a patron and also as one who worked in the theatre doing work in behalf of the management. The manager had confidence in Souza. There were times when Souza would be called
At the time the plaintiff was ejected by Souza, the manager was not in the body of the theatre but was outside in the box office. The assistant manager was “outside of the body of the theatre” taking tickets and the special police officer employed at the theatre was absent. The management had confidence in the ushers and gave them discretion to some degree in the handling of matters that came up ■ and in deciding whether they should leave their posts for a few minutes and what to do in that case. In reporting to the president and treasurer of the defendant how the “accident” happened, the manager said that he “got the information from the boy that was working there.”
The only exceptions relied upon by the defendant are to the denial of its requests for rulings numbered 1, 2, 3, 5, 6, 7, 19 and 20.
There was no error in the denial of the defendant’s nineteenth and twentieth requests, to the effect that, as matter of law, the evidence was not sufficient to establish the fact that Souza was an agent of the defendant, or to establish the fact of negligence on the part of the defendant, its servants or agents. The evidence before recited would warrant the judge in finding that the usher who called upon Souza to act in his place was authorized by the defendant so to do, and that Souza was in fact acting as a servant or
Exceptions overruled.