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Shellman v. Hershey

31 Cal. App. 654 Court Third Appellate District. Decision date 1916-10-07 Docket Civ. No. 1569 English

Delivered by CHIPMAN, P. J.

Contents

Majority

p. 654
[Civ. No. 1569.
Third Appellate District.
October 7, 1916.]
NANCY SHELLMAN et al., Respondents, v. ELLA L. HERSHEY et al., Appellants.

Headnote

Negligence—Injuries in Making Exit from Opera House—Pleading ■—Sufficiency of Complaint Against Lessees.—In an action against the owners and the lessees of an opera house to recover damages for personal injuries received by a patron in making her exit therefrom, the complaint sufficiently states a cause of action against the lessees, where it is alleged that they were the lessees of the premises on the day of the accident, and the nuisance and the accident are fully described.
APPEAL from a judgment of the Superior Court of Yolo County. N. A. Hawkins, Judge.
The facts are stated in the opinion of the court.
E'. M. Rosenthal, for Appellants.
A. C. Huston, and H. L. Huston, for Respondents.

This is an appeal by defendants Henry and Giesea from the judgment in the case of like title, No. 1568, ante, p. 641, [ 161 Pac. 132 ], this day decided, and is here on the judgment-roll alone. The only question presented arises on a general demurrer.

The complaint alleged ownership of the premises in defendants, the Hersheys; that defendants Plenry and Giesea on the day of the accident were lessees of the premises; that the premises are a public place of amusement let for hire; describes what was claimed to constitute the nuisance complained of; that the theater on the day mentioned was leased to defendants Henry and Giesea; that said nuisance existed in the theater prior to the letting to Henry and Giesea and at the time of the accident and describes fully the accident and alleges amount of damages.

We think a cause of action was sufficiently stated against these appellants. There was no special demurrer. The case was fully tried on all issues. It must be assumed, in the absence of a bill of exceptions, “that the evidence presented in support of the findings was competent to establish the facts

p. 655
alleged, and was received at the trial without any objection, and was sufficient to sustain each of the facts found.” (Cutting Fruit Co. v. Canty, 141 Cal. 692 [syllabus], [ 75 Pac. 564 ].)

The judgment as to defendants Henry and Giesea is affirmed.

Burnett, J., and Hart, J., concurred.

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