Fire Department v. Stetson — 6 N.Y. St. Rep. 255

Majority

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Fire Department of New York City, Resp’t, v. John Stetson, App'lt.

(New York Court of Common Pleas, General Term,

Filed February 7, 1887.)

Headnote

1. Theatres and places op amusement—Spectators not allowed to STAND IN PASSAGE WAY—LAWS 1885, CUAP. 456, § 28, LITERALLY CONSTRUED.

In an action to recover the penalty for allowing persons to stand in the passage way of a theatre, contrary to Laws of 1885, chapter 456, section 28. held, that the provision that inhibits the standing of spectators in the passage way will be literally construed.

2. Same—Penalty—Wiiat must -re proved in order to collect.

It is not necessary in order to collect the penalty as provided in said law to prove that the defendant knew that there were persons standing in the passage ways on the nights in question, or that he gave permission to anyone, on those occasions, to occupy a part of a passage way. It is sufficient to prove, even where a guilty knowledge is the gravamen of the offense, that the act complained of was done in pursuance of a general authority given by the defendant to his servant or agents. That authority may lie implied from circumstances.

3. Same—How guilty knowledge may be disproved.

It is competent for the defendant to show, if he can, that the wrongful act was done in opposition to his wishes, hut his disavowal of the act is not conclusive; it may be overcome by circumstantial evidence.

4. Same—Non-resident liable for acts of agents.

The defendant was liable, notwithstanding he was residing in another state at the time that his agents allowed the acts prohibited by statute.

5. District court—Appeal from—When allowed to go to court of APPEALS.

• An appeal to the court of appeals is not allowed by the court of common pleas in actions that originate in a district court, unless a novel question of importance is’presented.

Motion for a re-argument, or for leave to go to the court of appeals, in an action originating in a district court to recover a penalty of fifty dollars for violation of Laws of 1885, chapter 456, section 28.

W. L. Findley, for resp’t; A. J. Ditterihoefer, for app’lt.

We do not allow an appeal to the court of appeals in actions that originated in a district court, unless a novel question is presented, that seems to us of sufficient importance to require consideration by the court of last resort. Where the law is well settled, as it is in the case before us, there is no reason for granting permission to a dissatisfied suitor to carry his suit, to the court of appeals.

We are asked to nullify a statue, the meaning of which, is plain, by applying to it rules of construction that are resorted to only where a statute is ambiguous or where a literal construction of its terms would involve an absurdity, or work a glaring injustice. The statute that we are called to consider is not ambiguous, nor will a construction of if

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that gives effect to its obvious intention do any injustice to any one.

The object that the legislature had in view was a beneficent one; it was to prevent the awful sacrifice of human Ife that is certain to occur if no limit be placed upon the practice of allowing the means of ingress and egress in theatres to be blocked by throngs of people who, when a play is attractive, are admitted by theatrical managers long after every seat is occupied, and when, to use the language of the notices, there is “ Standing Room Only.”

The fire at the Brooklyn Theatre left a profound impression upon the public mind, and the feeling was general that the passage ways for exit should be large enough to give an audience a chance for their lives in case of danger, and that those passage ways should be kept clear, even when a strong pecuniary temptation made the manager of a theatre willing to take the risk of filling them with spectators. It was not left to the manager, whose pecuniary interest might blind his eyes, to determine how the ways of exit should be laid out, but the statute explicitly provides that “In all places of public amusement already erected, the halls, doors, stairways, seats and aisles, should be so arranged to facilitate egress in case of fire or accident, as the superintendent of buildings, with the concurrence of the board of fire commissioners, may deem necessary for the public protection.” It will be observed that the legislature was not content with placing under the the control of the superintendent Of buildings the construction of the means of exit in places of amusement thereafter to be built, but it gave to the superintendent the right to prescribe the arrangement of the avenues of entrance, even in buildings already erected. It is for the superintendent to decide how wide the aisles and stairways shall be, and it was presumed that when the superintendent considered them sufficient, he would not needlessly diminish the seating capacity of the house by making them any wider than is absolutely necessary for the public safety.

Hence it became necessary to provide that these avenues should be kept clear, and, therefore, it was made the law that “all aisles and passageways shall be kept free from eamp-stools, chairs, sofas, stoves and other obstructions; and that no person or persons shall be allowed to stand in occupy any of the aisles or passageways during any performance.”

Notwithstanding the plain and clear language of the act, the counsel for the defendant contends that the manager has a right to place a part of the audience in the aisles and passageways, if the number be not so great as to prevent tree exit in case of danger. It is obviously impossible for

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any man to say how many people would, in a panic, block up' a narrow passageway. It is not a question as to how long it may take to empty a theatre where everybody is cool and moving leisurely, but as to whether it is safe to allow passageways to be blocked when a crowd of panic-stricken people are making a mad rush for the doors. The legislature has made its meaning perfectly clear, and has said that no person shall be allowed to stand in the passageways, and it is not for any judge to say that although the legislature has forbidden it, the manager is at libeity to allow forty or fifty people to occupy the ways of exit. The counsel for the defendant argues that it is unreasonable to construe the act so as to deprive the manager of the opportunity to sell standing room in the aisles and passageways when he may do so without endangering life or limb. But the answer is a plain one; the intention of the legislature is so obvious that it requires nullification, not construction, to defeat it; furthermore a hecatomb of lives might be lost if the manager should make a slight mistake as to the number that he might pack with safety in an aisle or passageway.

We reject, therefore, any other than the literal construction of the provision that inhibits the standing of spectators in the passageway.

The evidence fully sustains the judgment that was given for the plaintiffs. It was not necessary to prove that the defendant knew that there were persons standing in the passageways on the nights in question, or that he gave permission to anyone on those occasions io occupy a part of a passageway. Even if the statute did not impose a penalty unless the defendant knowingly permitted the avenues for exit to be occupied, it would have been competent to prove that knowledge by circumstantial evidence. The case of the Verona Cheese Co. Murtaugh ( 50 N. Y., 314 ), is a precedent useful to c. -* charged with the duty of proving the case for the plaintiff in an action for a penalty. It is sufficient to prove even where a guilty knowledge is the gravamen of the offence that the act complained of was done in pursuance of a general authority given by the defendant to his servant or agents. That authority may be implied from circumstances. If it appear that an act that is for the interest of the defendant, is done by his servants in the performance of their duties as his employees, it will not be assumed, in the absence of evidence, that it was done without authority. It is, however, competent for the defendant to show, if he can, that the wrongful act was done in opposition to his wishes, then I’-' ought not to be held liable. But his draowal of the act is not conclusive. Like any denial of guilt, it may be ■

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overcome by circumstantial evidence. .To what weight would a denial by the defendant of responsibility for the' presence of people*in the passageways have been entitled in this case? His men sold tickets of admission that gave the holder no right to a seat, for after every seat was occupied or sold, the sale of tickets must have continued not only once, but on many occasions, a number of people, sometimes as many as sixty, were standing in the passageway in rear of the orchestra circle. One could not get through them without shoving. The ushers saw this. They must have done so, for the defendant’s stage carpenter admits that he saw men standing in the passageways on several occasions. Would anyone believe that the ticket sellers and the ushers had entered into a conspiracy to thwart the defendant’s good intentions? Who got the money for this violation of the law? As was said by Judge W. E. Allen in the case cited “it will not answer to suffer a party to escape the consequences of acts like those complained of, by keeping in the background, and putting forward irresponsible agents, and thus secure the benefit, and escape the perils of the wrong.”

“The presumption of authority from the fact proved is not one of law, and therefore conclusive, but a fact, and, therefore, it is for the jury to determine whether the evidence warrants it.”

Of course, if it should appear that despite the bona fide efforts of the defendant’s servants, there was a knot of two or three persons tarrying for a moment or two in a passageway, no sensible justice would hold that the statute was violated, but upon the facts indisputably proved in this case, the defendant was liable, notwithstanding his residence in Boston. It was perfectly proper for the justice to draw the conclusion that the defendant authorized his servants to allow persons to stand in the passageways. •

In the case of the Verona Co. v. Murtaugh (su p), acts complained of were by the wife, the daughters and a son of the defendant, and there is no evidence directly proving that the defendant himself took any part in the matter, but yet as he derived profit from the fraud that was practiced, and as the members of his family were in his service, it was decided that it was not improper to infer that he was aware of the acts that were done for his benefit, and upon such an inference to hold him liable for the penalty.

In the case of Sturges v. Maitland (Anthon’s Nisi Prius, 208), which was tried before Chancellor Kent, and affirmed by the supreme court, it was held that the defendant might be liable for a penalty, though he was absent in Virginia at the time that his agent’s clerk did the unlawful act; and

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that even, if an intent to violate the law were wanting, the negligence of the clerk might be so gross that a criminal intent might be imputed to him for which the defendant would be liable to a penalty. In that case it appeared that the defendant, by his agent’s clerk, had loaded some flour aboard one of his vessels, without having it inspected and branded, an act that was punishable by a penalty of five dollars for every barrel so snipped.

In The People v. Hulbut ( 4 Denio, 133 ), the prisoner was convicted of selling liquor without a license, though the liquor was sold by his son. The prisoner was connected with the act by proof that he kept the house in which the offense was committed, and that he kept a bar with bottles in it.

In Attorney General v. Siddon (I. C. & J., 220), it appeared that the master was absent, and that some smuggled tobacco was discovered in his cellar. His clerk, for the purpose of protecting the goods from seizure, wrongfully obtained a permit for the tobacco, and thereby did an act for which a penalty was prescribed. The master was held liable for the penalty,_ for the act was for the master’s benefit, and the obtaining of permits was in the course of the clerk’s ordinary duties. The presumption, therefore, was, that the act was authorized, and it was the duty of the master to rebut that presumption.

In Davis v. Bemis ( 40 N. Y., 453 note), it appeared that the agents of the defendant made and presented to the collector of customs certain false bills of lading, in the interest of the defendant, and so procured clearances of some of the defendant’s vessels. As the act was done for the defendant’s benefit by his employees, who were acting in the line of their ordinary duties, it was held that the defendant, though he took no part in the fraud, was liable for the penalty imposed on him who presents a false bill of lading to a collector.

There can be no doubt, therefore, that the decision of the district court, holding the defendant liable, was fully supported by the authorities and that the judgment was rightfully affirmed.

The motion for reargument, or for leave to go to the court of appeals, is denied, with costs.