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Marek v. S. Enters., Inc. - 128 Tex. 377, 99 S.W.2d 594 (1936)

Rule:

Those who conduct places of public amusement to which an admission fee is charged owe the duty to exercise ordinary care for the safety of their patrons. The relationship of proprietor and patron gives rise to that duty. Although the proprietor may be guilty of no negligence in regard to a danger in its incipiency, still, if after it arises he has time to prevent injuries to his patrons, it is his duty to exercise ordinary care to do so. His duty differs from that of a carrier of passengers only in the degree of care required.

Facts:

Mrs. Lucille Marek, a patron of the theatre, was watching a New Year's Eve performance. Shortly after she and the other members of her party were seated, some unidentified persons in the theatre began throwing firecrackers and torpedoes promiscuously over the auditorium. One such torpedo or firecracker exploded near her head causing her to suffer, among other injuries, the loss of hearing of one ear. Thus, she filed suit to recover damages for personal injuries against the theater. The trial court ruled in favor of Mrs. Marek but on appeal, was reversed because of improper argument of one of plaintiff's counsels. The case was appealed to th Supreme Court.

Issue:

Was the patron entitled to damages?

Answer:

Yes

Conclusion:

The court reversed the judgment of the court of appeals and affirmed the judgment of the trial court. The court held that: (1) it was not in agreement with the court of appeals that the patron's lawyer made an improper argument that required reversal; (2) legitimate inferences from testimony did not fall within the category of improper argument; and (3) counsel could properly comment on the absences of witnesses when they were shown to be in possession of facts material to the inquiry and when it was shown, or could be reasonably inferred from the evidence, that they were available to be called by the defaulting party.

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