Saenger Amusement Co. v. Murray

91 So. 459 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

The appellee, Will Murray, sued the appellant, Saenger Amusement Company, in the circuit court of Forrest county, for damages alleged by him to have been received while an employee of the appellant, through the fault of the latter, and recovered judgment, from which the appellant prosecutes this appeal.

The appellee alleged in his declaration and undertook to prove that the appellant, Saenger Amusement Comparfy, wag a Louisiana corporation engaged in operating throughout the country moving picture shows, one of which was carried on in the Lomo Theater in Hattiesburg; that the Lomo Theater was managed for appellant by Mrs. Payne, who employed appellee as porter and janitor, whose duty it was, among other things, to clean and keep the lights in said theater building in order; that in September, 1919, while so employed, he was directed by the manager, Mrs. Payne, to use a ladder in cleaning certain lights-in said -theater; that the ladder furnished him was defective and unsafe,, and in so using it appellee fell and was injured because of such unsafe and defective condition.

Appellant pleaded the general issue alone, and under it undertook to make the defense that it was not liable for the injury complained of because the appellee was not its servant at the time of such injury; the said Lomo Theater at that time not being either owned or operated by it.

The evidence in chief consisted alone of the testimony of the appellee himself, who testified that the Lomo Theater was controlled and operated by the appellant, Saenger Amusement Company; that Mrs. Payne was the manager of said Lomo Theater for appellant, and as such employed appellee as porter and janitor therein, and furnished him a defective ladder to use in cleaning the lights in said theater, which resulted in the injury complained of¡ On cross-examination appellee admitted that he did not know of his own personal knowledge whether the appellant owned or operated said theater or not, and that he did not know of his own personal knowledge whether Mrs. Payne, who managed said theater, was employed by and represented appellant or not. He stated that the only knowledge he had on that subject was what Mrs. Payne had told him; that she had informed him that appellant owned the Lomo Theater, and she was employed as manager by appellant. This evidence was admitted by the court over the objection of appellant, which objection was bhsed on the ground that the agency of Mrs. Payne for the appellant and the scope of her authority as such agent could not be proven by her declarations made out of court.

This court has held repeatedly that the statement of an agent testified to by another, as to the fac.t of his agency, and the scope and extent of such agency, has no probative value; that such evidence only proves the fact that such declarations were made; that they do not prove nor do they tend to prove the ultimate facts of agency and the scope and powers of the agent; in other words, that such declarations are purely and simply hearsay testimony. Sumrall v. Kitselman Bros., 101 Miss. 783, 58 So. 594 ; Gulfport Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340 ; Raleigh Co. v. Denham, 119 Miss. 406, 81 So. 118; Reichman-Crosby v. Dinwiddie, 117 Miss. 103, 77 So. 906. The trial court therefore erred in overruling appellant’s Objection to this evidence.

The only other evidence introduced by appellee to establish the fact that he was an employee of appellant at the time of his injury was the testimony of an employee of the Hattiesburg American, a newspaper published in the city of Hattiesburg, who produced, and the court admitted in evidence, several issues Of that paper containing advertisements during the month of September, 1919, of moving picture show attractions appearing at said theater. That part of these advertisements relied on by appellee as showing that appellant owned, controlled, or operated the said Lomo Theater was in the following language:

“Saenger Amusement Company presents today at Lomo Theater,” etc. “Saenger’s Lomó Theater. ” “Saenger’s Lomo Theater, Progressive Amusements, Progressive People. Saenger Amusement Company presents Evelyn Nes-bitt.”

Neither the employee of the Hattiesburg American who testified nor any other witness stated that appellant either authorized these advertisements or had anything whatso-, ever to do with their appearances in said newspaper. The witness simply identified the newspapers and the advertisements appearing therein, which were introduced in evidence by appellee over the objection of appellant.

We are of the opinion that these advertisements proved nothing except the fact that they appeared in the newspaper in question. For aught that appears to the contrary, they may have been wholly unauthorized by appellant, or appellant may have furnished to the management of the Lomo Theater, by rental or otherwise, the picture reels which were being used therein, without having any control or interest whatever in the business, or appellant may have rented such reels to the management of said picture show, and as a part of the consideration for such rental authorized and paid for said advertisements. The advertisements utterly fail to establish the vital fact that ap-pellee at the time of his injury was an employee of appellant by virtue of the alleged ownership or control by appellant of the said Lomo Theater. Therefore these newspaper advertisements, standing alone, should have been excluded by the trial court.

Appellant offered to prove by witnesses and also by record evidence that at the time appellee was injured the Lomo Theater was owned and controlled, and the moving pictures therein carried on, by the Plaza Amusement Company, a Louisiana corporation, and that C. B. Anderson, of Hattiesburg, was its manager and Mrs. Payne an employee under him. It is unnecessary to set out the testimony offered by appellant more fully. On objection of ap-pellee it was all ruled out on the ground that such evidence was not admissible under the general issue, the'only plea interposed by the appellant. Was such evidence competent under the general issue? Appellee alleged in his declaration, and it was an essential allegation, that the moving picture show conducted in the Lomo Theater was owned and operated by the appellant, and that appellee was an employee of appellant, and in that capacity received his injury. And Avhen it came to the introduction of the evidence*on behalf of appellee the latter undertook to prove, as was necessary, the allegations of the declaration in that respect. It is true that every defense not consisting merely of a denial of the allegations of the declaration must be pleaded specially, or notice thereof given under the general issue. But it is also true that every defense which is founded on a denial of the allegations of the declaration may be made under the plea of the general issue. Tittle v. Boner, 53 Miss. 578; 9 Ency. of Plead. & Prac. 882. It was incumbent on appellee to allege and prove that he was an employee of the appellant. He assumed that burden. The plea of the general issue denied that he was an employee of appellant. The question of employee or nonemployee was squarely presented by the declaration and the general issue. If it were a fact that appellant neither OAvned, controlled, nor had any interest in the Lomo Theater, then appellee was not its employee. It folloAvs from these vieAvs that all. the evidence offered by the appellant tending to shoAV that appellee was not its employee at the time of his injury, by reason of the fact that it did not OAvn or control the said Lomo Theater, should have been admitted by the court.

Reversed and remanded.