Smith v. Leo — 72 N.Y. St. Rep. 314

Majority

p. 314

Clarence G. T. Smith, Resp’t, v. Leopold Leo, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed December 26, 1895.)

Headnote

1. Pleading—Complaint—¡Sufficiency.

A complaint, which alleges that, on defendant’s invitation, plaintiff presented himself at defendant’s dancing school on a certain evening for the purpose of dancing with defendant’s dancing class, at that time and place congregated, that the plaintiff was admitted to the hall occupied by the dancers upon payment by him to defendant of the sum demanded as the price of admission ; that after plaintiff made himself ready for dancing and had been in the hall some time, he was expelled from the hall by the defendant and that by reason thereof he was greatly injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace, is sufficient.

2. Same.

As the plaintiff had, at the invitation of defendant, paid the admission fee and entered the hall, the defendant had no right to turn him out in the absence of sufficient cause.

8. Damages—Measure—Tort.

The measure of damages for the expulsion from a place of amusement includes indignity as well as amount paid for admission.

Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.

Tompkins & Cobb, for app’t; C. G. T. Smith and W. B. Estabrook, for resp’t.

—There are two questions that may be considered in this case—First, whether the complaint is sufficient; and second, whether the court erred on the subject of damages.

1. The complaint is somewhat indefinite. Still, its allegations are to be liberally construed, with a view to substantial j ustice. Code Civ. Proc. § 519. And it has been said that less strictness should be observed in considering objections to the complaint not made until the trial than if they were raised by demurrer. St. John v. Northrup, 23 Barb. 26 . Facts may be impliedly averred. Marie v. Garrison, 83 N. Y. 23 . In the complaint it is alleged that the plaintiff, upon the invitation of the defendant, presented himself at defendant’s dancing school on a certain evening, for the purpose of dancing with defendant’s dancing class, at that time -and place congregated; that the plaintiff was admitted to the hall occupied by the. dancers upon the payment by him to the defendant of the sum demanded as the price of admission; that after plaintiff made himself ready for dancing, and had been in the hall some time, he was expelled from the hall by the defendant, by the means of.the committing of which grievance by the defendant the plaintiff has been and still is greatly injured in his good name, fame and credit, and brought into public scandal, infamy, and disgrace with and among his associates and others, to the damage of the plaintiff of $2,500. Judgment for that amount was demanded. In substance it was alleged that the defendant had willfully deprived the plaintiff of the enjoyment of a right

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that he had purchased of the defendant The method of expulsion is not stated, but the word “expel” ordinarily means to drive or force out, or eject. So that the defendant impliedly, not only deprived the plaintiff of his right, but with indignity and disgrace put him out of the hall where, by his contract with defendant, he had a right to be. The action is quite analogous to that of a passenger for illegal removal from a railroad train, and is. we think, maintainable under the allegations of the complaint. The plaintiff having, at the invitation of the defendant, paid the admission fee and entered the hall, the defendant had no right to turn him out in the absence of sufficient cause. Magoverning v. Staples, 7 Lans. 145 , 148; Drew v. Peer, 93 Pa. St. 234 , 242. See, also, MacGowan v. Duff, 14 Daly, 315 ; McCrea v. Marsh, 12 Gray, 211 .

2. A point is made by the defendant on the theory that the court allowed the jury to give exemplary damages. This, however, is not a correct assumption. Taking the whole charge together, the jury were only allowed to give compensatory damages, and there is nothing in the amount of the verdict that indicates that the jury did otherwise. The court, in effect, charged that the plaintiff might be compensated for the indignity and disgrace. In Hamilton v. Railroad Co., 53 N. Y. 25 , which was an action for being improperly ejected from the defendant’s car, it was held that, as a part of the compensatory damages, there could be a suitable recompense'to plaintiff’s feelings. A like view was taken in Buck v. Webb, 58 Hun 184 , 33 St. Rep. 824 , and Fisher v. Railway Co., 34 Hun, 433 , and the fact that no actual force was applied was not deemed to vary the rule. In 1 Sedg. Dam. (8th Ed.) p. 67, § 47, it is said: “Sense of insult or indignity, mortification or wounded pride, is a .subject of compensation. A common instance is where a passenger is wrongfully ejected from a railroad train,”—and numerous cases are cited. The difficulty in estimating such damages is no objection to their recovery. Id. p. 63, § 46. The plaintiff paid, as the price of his admission, $1.45, and the defendant claims that the recovery should be limited to that amount Upon this subject, the plaintiff having been limited in his recovery to the damages actually sustained by him, we think the court did not erf.

It is suggested by the defendant that the court, at the commencement of the trial in denying a motion by plaintiff to amend the complaint, limited the scope of the action in stating that it was an action for damages, under a contract, for being expelled from a hall. The most that the court held was that the plaintiff must stand by the complaint and the facts therein alleged. We find no sufficient ground for reversal.

Judgment and order affirmed with costs.

All concur.

Cases cited

Magoverning v. Staples 7 Lans. 145 N.Y. Gen. Term at 148 p. 315
Hamilton v. Third Avenue Railroad 53 N. Y. 25 N.Y. 1873-05-20 p. 315