Morris, John C., Jr.

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Louisiana Law ReviewVolume 6 | Number 3December 1945Emotional Disturbance - Theater Proprietors -Duty of Courteous TreatmentJohn C. Morris Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJohn C. Morris Jr., Emotional Disturbance - Theater Proprietors - Duty of Courteous Treatment, 6 La. L. Rev. (1945)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol6/iss3/13NOTESspent apart from the abandoned spouse might properly be count-ed even though Mr. Hurry had "sped to court."'" The court musthave thought that some halt must be called in the rush fordivorces and is certainly not to be criticized for acting conscien-tiously in a matter of such vital concern to the commonwealth.However, present conditions would indicate to the writer atleast that this attempt to stem the tide has been and will be adeterrent of no value and should be abandoned. As a social policythe matter should be left to the time when the legislature mayrestate the law of divorce as, a whole.HARRIET S. DAGGETT*EMOTIONAL DISTURBANCE - THEATER PROPRIETORS - DUTY OFCOURTEOUS TREATMENT-Plaintiff, accompanied by his wife, pre-sented tickets for admission to defendant's theater. An attend-ant refused to admit him on the ground that plaintiff was acripple and that his presence during crowded hours involved ahazard to his safety. The refusal was apparently made in thepresence only of the attendants and plaintiff's' wife. Held, onappeal to the supreme court, that plaintiff is entitled to damagesfor emotional disturbances arising out of breach of contract.Vogel v. Saenger Theatres, Incorporated, 22 So.(2d) 189 (La.1945).Emotional disturbance is not usually recognized as an inde-pendent actionable wrong. However, the general rule that therecan be no recovery without physical injury is cloudedwith excep-tions. The exceptions created by the courts involve actionswhere the defendant has wilfully violated some right whichthe court recognizes. If a technical battery,' a trespass, 2 an inva-sion of the right of privacy, a case of false imprisonment4 or15. Hurry v. Hurry, 141 La. 954, 76 So. 160 (1917).* Professor of Civil Law, Louisiana State University.1. Spearman v. Toye Bros. Auto & Taxicab Co., 164 La. 677, 114 So. 591(1927); William Small & Co. v. Lonergan, 81 Kan. 48, 105 Pac. 27 (1909);Davidson v. Lee, 139 S.W. 904 (Tex. Civ. App. 1911); Western Union Tele-graph Co. v. Bowdoin, 168 S.W. 1 (Tex. Civ. App. 1914).2. Matheson v. American Teleph. & Teleg. Co., 137 S.C. 227, 135 S.E.306 (1926).3. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927); Rhodes v. Graham,238 Ky. 225, 37 S.W.(2d) 46 (1931).4. Shannon v. Sims, 146 Ala. 673, 40 So. 574 (1906); Ross v. Kohler, 163Ky. 583, 174 S.W. 36 (1915); Chicago, R. I. & P. Ry. Co. v. Radford, 36 Okla.657, 129 Pac. 834 (1913).1945]LOUISIANA LAW REVIEW [VOL. VIwrongful eviction' can be made out, the court is willing toattach parasitic damages for mental suffering. Often the ortho-dox wrong exists only in the most technical sense, and the sub-stantial hurt is the ensuing mental anguish. For their failure toaccord the interest in emotional security a direct and full protec-tion the courts have offered several explanations.'Breach of contract offers another peg upon which courtsfrequently hang mental suffering damages. Although the dam-ages might arise as a consequence of the breach itself, in mostcases it is the insolent conduct accompanying the breach thatgives rise to mental anguish." Thus in cases involving a commoncarrier of passengers the courts commonly speak in terms ofan implied contract to accord passengers courteous treatment,and allow recovery for insult by an attendant" or abuse by otherpassengers.9 In other cases where the contractual relation isequally clear the court will ignore it and allow recovery byreferring directly to the public duty owed the passenger.10 Fromthe very nature of the business the carrier is in a peculiar positionto inflict this injury, and courts are prone to allow recoverywithout serious regard to a choice of theories.1 'The carrier offers a striking analogy to the theater operator. 12The similarities are obvious. Both deal with the public en masse.5. Dirmeyer v. O'Hern, 39 La. Ann. 961, 3 So. 132 (1887); Sandlin v. Coyle,143 La. 121, 78 So. 261 (1918); Fillebrown v. Hoar, 124 Mass. 580 (1878).6. Courts in some instances say the damages are too remote. Mentalsuffering is often termed too vague and easily simulated, too difficult toestimate, or recovery would open up a flood of litigation. Perhaps the bestexplanation is historical. In the modern age the feelings have come to berecognized as an important element of the personality and the increased com-plexities of life have caused plaintiffs to press this interest. In at least onecase this has been noted. In Summerfield v. Western Union Tel. Co., 87Wis. 1, 11, 57' N.W. 973, 975 (1894), the court said: "If, in the evolution ofsociety and the law, this innovation should be deemed necessary, the legis-lature can be safely trusted to introduce it, with those limitations and safe-guards which will be absolutely necessary, judging from the variety of casesthat have sprung up since the promulgation of the Texas case."7. Enders v. Skannal, 35 La. Ann. 1000 (1883). The plaintiff was drivenfrom land on which he had contracted to cut timber. Court said it was notonly a breach of contract, but a breach in such a way as to constitute anoffense under the laws and allowed recovery for outrage to plaintiff's feelings.8. Bleecker v. Colorado & S. Ry. Co., 50 Colo. 140, 114 Pac. 481 (1911);Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899).9. Birmingham R. Light & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111 (1912).10. May v. Shreveport Traction Co., 127 La. 420, 53 So. 671 (1910); Hailev. New Orleans Ry. & Light Co., 135 La. 229, 65 So. 225 (1914); Lipman v.Atlantic Coast Line R.R. Co., 108 S.C. 151, 93 S.E. 714 (1917).11. In Texas & P. R.R. Co. v. Jones, 39 S.W. 124 (Tex. Civ. App. 1897),the passenger had not yet purchased his ticket and recovery for Insultingconduct was allowed. The court was satisfied to find that plaintiff was onewho intended to become a passenger.12. Aaron v, Ward, 203 N.Y. 351, 96 N.E. 736 (1911). The Louisiana courthas often suggested the analogy in cases involving physical injuries toNOTESNeither could operate without the congregating of large massesof people for the common purpose of transportation or amuse-ment. In both instances there is an assumption, of a high degreeof care by the defendant, who occupies a superior position topatron or passenger, and the duty of civil treatment may well besaid to be the same in all cases.18However, several courts have rejected the carrier analogyin dealing with the proprietor of places of amusement and havedenied damages to a patron who was excluded from a publictheater.14 The reason assigned is that the theater is a privatebusiness governed by such rules as the management makes,while the carrier operates under a franchise, obligated to takeanyone desiring to become a passenger.In the present case the court emphasized the breach of con-tract or revocation of license,"5 relying principally on Lewis v.Holmes 6 for supporting authority. In the latter case the plaintiffhad contracted for delivery of a wedding trousseau and the dam-ages suffered came from the failure to receive the wedding dress.The plaintiff did not get what she bargained for, and the mentalsuffering ensuing from the breach could reasonably have beenanticipated by the defendant. 7 O'Meallie v. Moreau," also reliedon by the court, represents another case where the loss of bargaingave rise to mental suffering. The plaintiff in that action recov-ered for the disappointment, annoyance, vexation, and mortifica-tion caused by breach of a contract to furnish a picnic park fora long advertised outing of a social club. The court could readilyappreciate the obvious disappointment of the victims in thesetheater patrons. Lonatro v. Palace Theater Co., 5 La. App. 386 (1927);Bentz v. Saenger-Ehrlich Enterprises, Inc., 197 So. 659 (La. App. 1940);Welcek v. Saenger Theatres Corp., 5 So.(2d) 577 (La. App. 1942).13. See Weber-Stair Co. v. Fisher, 119 S. W. 195 (Ky. App. 1909); Boswellv. Barnum & Bailey, 135 Tenn. 35, 185 S.W. 692 (1916).14. Luxenburg v. Keith & Proctor Amusement Co., 117 N.Y. Supp. 979, 64Misc. 69 (1909); Buenzle v. Newport Amusement Ass'n, 29 R.I. 23, 68 Atl.721 (1908).15. It is the almost 'universal holding that a theater ticket is a merelicense, revocable at the will of the proprietor. Marrone v. WashingtonJockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). Louisiana, how-ever, seems to hold that the manager must have good reason to believe oneis creating a disturbance before he is privileged to revoke the license. Russov. Orpheum Theatre & Realty Co., 136 La. 24, 66 So. 385 (1914); Planchard v.Klaw & Erlanger New Orleans Theatres Co., 166 La. 235, 117 So. 132 (1928).16. 109 La. 1030, 34 So. 66 (1903).17. In Garner v. Burnstein, 1 La. App. 19 (1924), the court denied recoverybecause the defendant did not have notice that the hat which plaintiff orderedwas for a special occasion and distinguished the Holmes case. The courtwas careful, however, to point out that plaintiff had probably been injured.18. 116 La. 1020, 41 So. 243 (1906).1945]LOUISIANA LAW REVIEWcases, and the circumstances left little doubt as to the substantialnature of the resulting injury to the sensibilities. Loss of bargainsometimes offers a tangible basis upon which to estimate thedamages of mental suffering. In the instant case, however, it isobvious the plaintiff was not suing for loss of the advantage ofwitnessing the performance. His claim was for discourteoustreatment.Although most courts prefer to seize upon the breach of' con-tract idea or the public duty owed by the carrier or proprietor,several cases have proceeded more directly to the point. Thecourts in such cases often resort to such terms as "improperexpulsion," 19 or "wrongful acts ' 20 or "wanton or shamefully grosswrong, 12 1 offering no clue as to what is improper or wrongful. Inone Louisiana case 22 similar to the present controversy, recoverywas allowed without reference to any theory whatsoever. Thesedecisions, although difficult to align with established torts doc-trines, indicate nevertheless that here is an independent wrongwhich is on the way to achieving open recognition. Few decisionsin the history of torts law have directly announced the advent onfirst trial of a complete new doctrine with boundaries fullydefined. Usually the process is one of slow and cautious growth.Hence vagueness and uncertainty in these opinions is to beexpected.In conclusion it might be questioned whether the plaintiffin the instant case sustained any appreciable injury. The de-defendant was seeking to enforce a rule for the safety of hispatrons, and the reported evidence that his conduct was excessivewas meagre at best. The law cannot effectively protect overacutesensibilities without disregard of the hard actualities of modernliving. On the facts as given it may be suggested that the courthas overshot the mark.JOHN C. MORRIS, JR.PARENT AND CHILD-LIABILITY OF PARENT FOR MISUSE OF AIRRIFLE BY CHILD-DANGEROUS INSTRUMENTALITIES-Defendant's son,a boy of about ten years of age, fired at a target with an air riflewhich he had borrowed from a friend. The shot ricocheted and19. Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736 (1911).20. Davis v. Tacoma Ry. & Power Co., 35 Wash. 203, 77 Pac. 209 (1904).21. Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938).22. Planchard v. Klaw & Erlanger New Orleans Theatres Co., 166 La. 235,117 So. 132 (1928).[VOL. VI

Emotional Disturbance - Theater Proprietors - Duty of Courteous Treatment

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Emotional Disturbance - Theater Proprietors - Duty of Courteous Treatment

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