Windas v. Galston & Sutton Theatres Inc.

While attending a performance in the Mareal Theatre in the city of Los Angeles plaintiffs were injured by the falling of a block of plaster from the ceiling of the theatre about 30 feet above them. Separate actions were commenced by plaintiffs, which were consolidated for trial with actions commenced by other parties who were injured at the same time. A jury returned verdicts in favor of plaintiffs against the corporation which was operating the theatre.

It is contended by appellant that the trial court erred in applying the doctrine of res ipso loquitur, concerning which the jury was given the following instruction: “When a thing which causes injury is shown to be under the management of a defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of proper care. And the jury is further instructed that if it should find that defendants or either of them were negligent and that said negligence was the proximate cause of injury, and that plaintiffs were free from negligence, then, in such an event, you shall render your verdict in favor of plaintiffs or either of them and against the defendants or either of them, as the case may be”. No criticism is aimed at the language of this instruction, which, though not perfect, sub

That the doctrine of res ipso loquitur is in general applicable to cases involving falling objects is not disputed. In a number of jurisdictions the doctrine has been applied to eases of plaster falling from ceilings. Appellant relies upon Thompson v. Cooles, 7 W. W. Harr. (Del.) 83 [ 180 Atl. 522 ], a case in which plaster fell from the ceiling of a pool-room upon one of the patrons, and in which it was held that the doctrine was inapplicable. On the other hand the doctrine has been held applicable in Morris v. Zimmerman, 138 App. Div. 114 [ 122 N. Y. Supp. 900 ], and in Halterman v. Hansard, 4 Ohio App. 268 , where the parties were injured by plaster falling from rooms in hotels; and in Law v. Morris, 102 N. J. L. 650 [ 133 Atl. 427 , 46 A. L. R 1108 ] ; Taylor v. Popular Dry Goods Store, (Tex. Civ. App.) 10. S. W. (2d) 191, and Manson v. May Dept. Store Co., 230 Mo. App. 678 [ 71 S. W. (2d) 1081 ], where the parties injured were customers in stores; and in Bonita Theatre v. Bridges, 31 Ga. App. 798 [ 122 S. E. 255 ], where the injured party was attending a performance in a theatre. In California the doctrine was held applicable in Mintzer v. Wilson, 21 Cal. App. (2d) 85 [ 68 Pac. (2d) 370 ], a case in which the plaintiff was injured by falling plaster while she was a guest in a hotel. It thus appears that the trial court ruled in accordance with the weight of authority on the subject and in accordance with a decision of the District Court of Appeal of this state. The ruling of the trial court was both reasonable and just. When plaintiffs entered the theatre they were compelled to rely upon the operator of the theatre to discharge its duty to use reasonable care to see that the premises under its control were kept in a safe condition. Plaster does not ordinarily fall from a ceiling if proper care has been used to see that the ceiling is safe. The way was open to appellant to present an explanation of the occurrence and to dispel by evidence, if possible, the inference of want of proper care which arose in favor of plaintiffs. The jury impliedly held that the evidence presented did not dispel this inference.

Appellant further contends that “the evidence introduced by the defendant in explanation of the accident dispels, as a matter of law, the permissible inference of negli

It is further contended by appellant that it was not in such control of the premises where the accident occurred as to justify the application of the doctrine of res ipso loquitur. We find no merit in this contention. In its answer appellant admitted that “at all times pertinent hereto it was in possession of and the operator of” the theatre in question. Appellant was the lessee of the theatre from the owner of the property. The front part of the building was a two-story structure, the foyer of the theatre being on the first floor. The offices above the foyer were rented to other parties by the owner. The theatre, which was occupied solely by appellant, was separate and had a separate roof. There was an atttic between the ceiling and the roof. By the terms of the lease appellant was granted full possession of the theatre. The

The judgments are affirmed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 14, 1939, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 11,1940.