Babicz v. Riverview Sharpshooters Park Co. , 1911 Ill. App. LEXIS 744 ( 1911 )

Mr. Justice Clark

delivered the opinion of the court.

We are asked to reverse this case because, as the defendant contends, the Florida Zoo Company erected the seats which fell, and was in exclusive possession and control of them and the site thereof, under leases giving them such possession and control; second, because there was a variance as was claimed, between the declaration and the proof, and the court should have instructed a verdict for the defendant; third, because the amount of the judgment is excessive.

Appellant in its brief and argument relies chiefly upon the case of Rayfield v. Sans Souci Park, 147 Ill. App. 493. In that case Mr. Justice Adams, who wrote the opinion, after holding that the case must be reversed on other ground, stated:

“The Marshall Amusement Company constructed the maze and was in exclusive possession and control of it and its site; and the Sans Souci Park could not incur liability by reason of the fact, proved by the plaintiff, that it made a lease to the Marshall Amusement Company of the ground on which the maze was. ’ ’

The contracts offered in evidence in the ease before us show that the concessionaire leased part of the property from the defendant, and part from the owner of the adjoining land, paying to each of them a percentage of the receipts. The owner of the adjoining land, however, had no control over the property, while in the contract between the defendant and the concessionaire the defendant promised to secure from the adjacent owner for the concessionaire sufficient ground on which to locate three concessions. The concessionaire agreed to install and maintain for the season the concessions, without cost to the defendant; to pay the reasonable salaries of all needed cashiers, to be selected by the defendant; to pay for electricity, light and power, to be furnished by the defendant; to light the premises to the satisfaction of the defendant; to pay for tickets to be selected by the defendant, and in case of accident or casualty to save the defendant harmless from any and all cost and expenses incident thereto or arising therefrom. All these things were to be done “in consideration of the grant of said privilege.” The concessionaire further agreed to be governed by eighteen different rules prescribed by the defendant, which were set forth in the contract.

It will be observed that a patron of the concession could not obtain access thereto without first paying his admission fee for general admission to the park. We think, therefore, that under all these circumstances and conditions, the concessionaire cannot be said to have been in exclusive possession and control of its exhibition and the site upon which same was located, and that in this respect the case is very different from that of Bayfield v. Sans Souci Park, above referred to.

In the case of Stickle v. Riverview Sharpshooters Park Company, 159 Ill. App. 110, this court sustained a recovery in a very similar case, and we regard the principles laid down in that opinion as controlling in the present appeal.

The next point insisted upon by the appellant is that there was a variance between the allegations in the declaration and the proof, and that this,was not cured by the amendment after verdict.

We think that the court did not abuse the discretion vested in it in allowing the amendment, and we feel that the judgment rendered should not on that account be reversed.

Lastly, we come to the claim of the appellant that the verdict was excessive. Careful reading of the record has convinced us that there is merit in this claim. The verdict of the jury, as will be noted, was for $6,000, and the trial court required a remittitur of $2,000 and entered a judgment of $4,000. There is great force in the contention of the appellant that because of the excessive verdict and, as we believe, the excessive amount of the judgment, the case should be reversed.

We however think that justice will have been done if a remittitur of $1,000 is entered in this court. Judgment will therefore be affirmed upon the filing by the appellee in this court within ten days a remittitur in that amount. The costs will be taxed to the appellee.

Affirmed upon remittitur.

Remittitur filed April 27, 1911.