Gross v. Fox Ritz Theatre Corp.

HOUSER, P. J.

From the record herein, it appears that on a date specified in a complaint in aji action that was brought by the plaintiff against the defendant, it was alleged that the defendant was the owner and the operator of a motion picture theatre “open to the public and charging admission from its patrons”; that after paying the admission charged to such theatre, plaintiff was admitted therein, and thereupon “was ushered by the employees and/or agents of said defendants to a seat in the balcony of said theatre”, which “was in a darkened condition, and that the only available seat was a vacant, chair in the left aisle; . . . that said plaintiff sat in said chair, viewing the performance for a period of approximately twenty (20) minutes, and without warning, the said chair collapsed, injuring plaintiff”.

[256]

The action resulted in a judgment being rendered in favor of plaintiff. From that judgment the defendant appealed to this court. Thereupon respondent gave notice of hei? motion to dismiss the appeal or affirm the judgment, on the ground that the “question on which the decision of this cause depends is so unsubstantial as not to need further argument”.

At the outset, in compliance with the rule of the Supreme Court and of the District Court of Appeal, in its -opening brief the appellant made its “Statement of Question Involved ”. As therein set forth, the question that is submitted to this court for its determination, is as follow:

"Where a theatre owner borrows several chairs from a nearby business neighbor and has borrowed similar chairs on other occasions and there is no patent defect about such chairs and a patron of the theatre is directed to one of such chairs and sits therein for a length of time variously estimated of from twenty minutes to a half hour and the chair collapses, does the doctrine of

res ipsa, loquitur

apply to such situation?”

On the hearing of respondent’s motion to affirm the judgment, the appellant urged the point that for the reason that it was not the owner of the chair that collapsed, the doctrine of

res ipsa loquitur