Larramendy v. Myres

WOOD (Parker), J.

Action for damages resulting from burns received by the minor plaintiff when a smoke-producing device, used by her in a dancing act, set fire to her dress. In a trial without a jury, plaintiffs obtained judgment against defendants Abbott and Bordner, individually, and against defendants Abbott and Bordner doing business as Abbott’s Magic Novelty Company. Those defendants appeal from the judgment.

Upon motion of plaintiffs the action was dismissed as to defendants Myres, Groves, and high school district. Motions for nonsuits were granted as to defendants Francine Lanteri, Jolene Lanteri Jenkins, and George Boston.

Defendants Francine Lanteri and Jolene Lanteri Jenkins, known as the Lanteri sisters, conducted a dancing school in Ventura. Deanna Larramendy, plaintiff herein, 12 years of age, was a pupil in that school who had been taken ballet and toe dancing lessons about two years. On April 15, 1950, the Lanteri sisters staged a dancing exhibition in the auditorium of the Ventura Junior College wherein several pupils of the dancing school participated. Deanna was chosen for the leading role—to play the part of Persephone in a ballet, based on the myth of the seasons, known as

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‘ The Underground Queen. ’ ’ It was a part of her role, while dancing, to step on or trip a smoke-making device and thereby cause a puff or cloud of smoke to arise from the floor. Then, out of the smoke or “illusion,” Pluto would arrive on the stage.

Francine Lanteri read, in a catalogue or trade magazine “for stage props,” an advertisement regarding a smoke-making device known as “Abbott’s Pufferoo.” She wrote to Abbott’s Magic Novelty Company, located on Sunset Boule

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vard in Los Angeles, and ordered the smoke-making device sent to her by mail C.O.D. Thereafter she received the device by mail C.O.D. Defendants Abbott and Bordner operated Abbott’s Magic Novelty Company located at 6505 Sunset Boulevard in Los Angeles. In October, 1949, an advertisement bearing the title “Abbott’s Pufferoo” was placed in a magazine, known as “Genii,” by Abbott’s Magic Novelty Company, Colon, Michigan.

The device was received in evidence, but it has not been forwarded to this court. It has not been described in any of the briefs or in the reporter’s transcript. It seems from statements made by witnesses in explaining how the device was operated (and from written directions which were with the device) that the device consisted of: a receptacle into which explosive powder was poured; a 4% volt battery; a filament wire which extended horizontally through the middle of the powder receptacle and was connected with one end of the battery and a metal piece above a contact post; and another wire which was connected with the other end of the battery and with the contact post. In the package in which the device was received, there was a bottle of explosive powder and also a piece of paper containing directions for operating the device. The writing which was on that paper is set forth below.