Fanciullo v. B. G. & S. Theatre

RUGG, Chief Justice. This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff by reason of an assault and battery committed on him by an agent or servant of the defendant. The evidence in its aspect most favorable to the plaintiff warranted a finding of these facts: The plaintiff, a boy eight years old, with several other boys bought tickets of admission to the defendants moving picture theatre. The plaintiff and the other boys dropped their tickets in a box in the outer lobby, which was in charge of one ONeil, the ticket taker and special police officer, and were shown to seats by the usher, one Less. There was some noise and disturbance in the theatre, in the row behind where the plaintiff and his companions were sitting, in which the plaintiff did not take part, and then immediately the usher, Harry Less, forcibly removed the plaintiff from his seat, ejected him from the theatre and pushed and threw him onto the floor in the outer lobby causing personal injuries to him. ONeil, the special officer, was standing in the front lobby near the ticket booth. After the plaintiff got up, he and the other boys left the premises. They saw and passed ONeil but said nothing to him. The usher, called as a witness by the plaintiff, testified that his duties were laid down by the defendants manager, who told him that he was just to usher people to their seats, to caution them once if they made noise, and if they didnt behave to notify the special police officer and if the special police officer couldnt do anything to get a regular police officer. ONeil, who was the only special police officer, testified that a part of his duties was to eject disorderly people from the theatre, if called upon; that the Saturday afternoon when the assault was said to have taken place was a very busy time and frequently it was necessary to rope off the lobby when people were waiting. Both the usher and ONeil testified that they never saw the plaintiff and that no assault took place.