A visitor is entitled to a seat. This right depends on the nature of his ticket. If it is for a reserved seat, he has a right to that particular seat ; if not reserved, then to any one which he may find unoccupied and which has not been previously sold to another ; Com v. Powell, 10 Phila. (Pa.) 180. Whether a return check given to one after the perform ance commences may be transferred by the spectator to some other person is a question as to which different opinions have been ex pressed and apparently no authoritative deci sion of the point has been made. An anony mous writer in 12 Cent. L. J. 359, expresses the opinion that such a check is transferable, but no authority is cited, while in the same issue of that periodical, in an article by W. H. Wittacker, the opinion is expressed that "the purchaser of a reserved seat, who sells his pass on leaving the house, together with the ticket for his seat, could convey no right on the second purchaser which would entitle him to admission." This opinion is concur red in by two text-writers on the subject; Bracket, Theatrical Law 179, § 153; Wendell, Law of the Theatre, 246. None of these writ ers cites any authority, but the last cited au thor quotes from 12 C. L. J. 359, and dis sents from it, adding: "The holder of a re turn check could not transfer the same if the original ticket of admission was non-transfer able." The same author also suggests that the holder of a return check cannot transfer the same if the ticket of admission was trans ferable. The opinions cited on the subject of the right to transfer a ticket or return check are all based upon the theory that a mere li cense is not transferable, and such cases are cited as Mendenhall v. Klinck, 51 N. Y. 246; Jackson v. Babcock, 4 Johns. (N. Y.) 418. This must be admitted as a settled principle with respect to licenses to enter upon land, of which the cases cited in this connection are instances, and, as appears by the author ities supra, the tendency of the courts has been to hold that the legal effect of a theatre ticket is a mere license. A ticket however is said to be more than a mere license, so far as the right to enter the building is concern ed, as it includes a contract with the holder to permit him to enter and see the play; Beale, Innkeepers § 316. A revocation of the license, therefore, is a breach of this con tract for which the holder may sue, though he may have been lawfully excluded from the premises; Burton v. Seherpf, 1 Allen (Mass.) 133, 79 Am. Dec. 717; Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301, where it was held that the proprietor has the right to annex tp tickets of admission the condition that they shall not he transferable, and if transferred, that they shall be worthless.
The plaintiff, during the course of a mov ing picture performance, for which he had purchased a reserved seat, was ejected from the defendant's theatre, with no unnecessary force. Plaintiff was allowed recovery in an action for assault and battery ; Hurst v. Pie 1 ture Theatres, Ltd., 30 T. L. Rep. 98. The ticket holder has a license to enter the thea tre and remain there, but since it is not coup led with an interest, it is revocable at the will of the licensor, although consideration has been paid; Hewlins v, Shippan,.5 B. & C. 221. On revocation the licensee becomes a trespasser; Ruggles v. Lesure, 24 Pick. (Mass.) 187. But in a jurisdiction like that in Hurst v. Picture Theatres, Ltd., supra, where there is a fusion of law and equity, it would seem enough to defeat the justifica I don for the ejectment.
An agreement among theatre owners to exclude a certain dramatic critic is not un lawful; a theatre is a private enterprise, and the proprietor mey say w ho shall en ter ; People v. Flynn; 114 App. Div. 578, 10)
N. Y. Supp. 31.
Where a theatre ticket contained a state ment that it sold on the sidewalk it would he rejected, a ticket speculator has no rights against the manager of the theatre; Col lister v. Hayman, 183 N. Y. 25), 73 N. E. 20, 1 L. R. A. (N. S.) 1188, 111 Am. St. Rep. 740, 5 Ann. Cas. 344. The manager of a theatre is not bound to sell Lis tickets at the pare adA ertisEd, and it is not within the police power to regulate prices; People v. Steele, 231 Ill. 340, 83 N. E. 236, 14 L. R. A. (N. S.) 3(1, 121 Am. St. Rep 321.
It was held in CAlford v. Brix den, 2 Camp. 358, that the audience had a right to express their sensations or opinions by ap plause or hisses, and that the right to do so had never been hindered or questioned, but that if any body of men went into a theatre with the intention of hissing an actor or con demning a piece, they would be guilty of riot ; to the same effect was the expression of Tindal, C. J., in Gregory v. Duke of Bruns wick, 1 C. & K. 24, who said : "The public who go to a theatre have the right to ex press their free and unbiased opinions of the merits of the performers who appear upon the stage, but have no right to go to the theatre by a preconcerted plan to make such a noise that an actor, without any judgment being formed on his performance, should be driven from the stage by such a scheme." A theatrical performance being publicly given is subject to candid comment by a newspaper, but it must be done fairly and without malice or purpose to injure or prej udice the proprietor in the public mind; Lord Kenyon, charging the jury in Dibdin v. Swan, 1 Esp. 28.
The proprietor or manager is charged with the duty of protecting the spectators from personal danger resulting from the perform once, so far as It could have been foreseen and by good care guarded against ; Thomp son v. Ry. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323, where at a shooting entertainment the plaintiff was hit in the eye by a metallic piece which flew from the target when it was hit by the bul let; Herrick v. Wixom, 121 Mich. 384, 80 N. W. 117, 81 N. W. 333, where the spectator was hit by an exploded fire cracker. It is also the duty of the proprietor or manager to protect the spectator from violence or wrong-doing of his servants ; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. 'St. Rep. 440; Fowler v. Holmes, 3 N. Y. Supp. 816; or a by stander; Mastad v. Swedish Brethren, 83 Minn. 40, 85 N. W. 913, 53 L. R. A. 803, 85 Am. St. Rep. 446. He is also responsible for providing a safe building as little dangerous as is practicable with reference to its intend ed use ; Sebeck v. P. V. Verein, 64 N. J. L. 624, 46 AU. 631, 50 L. R. A. 199, 81 Am. St. Rep. 512 ; Hart v. Park Club, 157 Ill. 9, 41 N. E. 620, 29 L. R. A. 492, 48 Am. St. Rep. 298; Schofield v. Wood, 170 Mass. 415, 49 N. E. 636 ; Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282 ; Francis v. Cockerell, L. R. 5 Q. B. 501; though be is not held as an insurer ; Dun ning v. Jacobs, 15 Misc. 85, 36 N. Y. Supp. 453. It has been held that the proprietor is not liable to a patron for property left in his private box which was stolen ; Pattison v. Hammerstein, 17 Misc. 375, 39 N. Y. Supp. 1039, where it was said that he is not an in surer nor can he be expected, whether re garded as lessor or licensor, to control the ac cess to the box while occupied by the party renting it.