Artists' Embassy v. Hunt

DORAN, J.

The present appeal is from that part of a judgment which awarded plaintiff $4,607.54 as damages resulting from the defendants’ negligent delay in transporting theatrical scenery, equipment, costumes, etc. from Los Angeles to San Francisco. There is no appeal from that part of the judgment which awarded the defendants $976.49 on a counterclaim.

It appears that from May 21 through June 23, 1956, the plaintiff had presented the play “Will Success Spoil Rock Hunter” at the Carthay Circle Theatre in Los Angeles, and on May 9th, had contracted to present the same play at the Curran Theatre in San Francisco for three weeks commencing June 25, 1956. Plaintiff closed the show in Los Angeles on the night of June 23d and delivered the scenery, etc., to the defendant common carriers for delivery at the Curran Theatre at 8 a. m. Monday morning, June 25, 1956, so that the play could open at 8:30 p. m. that evening. Defendants were familiar with the necessity of delivering theatrical properties in sufficient time for the show to open.

The defendants, appellants herein, failed to deliver the properties at San Francisco until 9:55 Monday evening, for which reason the first night’s performance was not given. The trip could normally be made in 12 hours in place of the 33 hours consumed on this occasion. It was appellants’ claim that the delay was due to unforeseeable mechanical breakdowns necessitating the rental of other equipment. Appellants however, “concede the fact that the record will support a finding of negligence.”

The trial court found that as a result of defendants’ failure to make the delivery, “and despite the fact that plaintiff

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received no income from said lost performance, - plaintiff was compelled to pay salaries and compensation to actors, press agents, pro rata cost of insurance, its share of advertising, waiting time of stage hands on Monday, June 25, 1956, . . . contractual amount to Curran Theatre for rental for lost performance and contractual penalty to Curran Theatre because of weekly gross falling below contractual minimum, the total amount paid for aforesaid being $2,607.54; that the press notices for the performance given on June 26, 1956 were unfavorable to the management, caused in part by the fact that the east and company had not been afforded the usual opportunity to rehearse prior to the giving of said performance, and because of the disorganized condition resulting from defendants’ failure to deliver the scenery ... as agreed upon. That as a result of the unfavorable reception of the play in San Francisco. California, the plaintiff was compelled to cancel the third week of the contract period with the Curran Theatre . . . and as a result thereof is liable for the cancelled rental period under the terms of said contract in the sum of $2,000.00.”