Aaron v. Ward

• Decision Date: 21 November 1911
• Citation: 96 N.E. 736,203 N.Y. 351
• Parties: AARON v. WARD.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 351

96 N.E. 736

AARON

v.WARD.

Court of Appeals of New York.

Nov. 21, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Ada S. Aaron against William J. Ward. From a judgment of the Appellate Division (136 App. Div. 818,121 N. Y. Supp. 673), affirming a judgment of the Municipal Court of the Borough of Brooklyn, City of New York, in favor of plaintiff, defendant appeals. Affirmed.

See, also, 138 App. Div. 892,122 N. Y. Supp. 1121.Wilson & Van Wagoner, for appellant.

Joseph Goldstein, for respondent.

CULLEN, C. J.

The defendant was the proprietor of a bathing establishment on the beach at Coney Island. The plaintiff, intending to take a bath in the surf, purchased a ticket from the defendant's employes for the sum of 25 cents, and took her position in a line of the defendant's patrons leading to a window at which the ticket entitled her to receive, upon its surrender, a key admitting her to a bathhouse. When she approached the window, a dispute arose between her and the defendant's employes as to the right of another person not in the line to have a key given to him in advance of the plaintiff. As a result of this dispute plaintiff was ejected from the defendant's premises; the agents of the latter refusing to furnish her with the accommodations for which she had contracted. It is not necessary to discuss the merits of the dispute or narrate its details, as the questions of fact involved in that matter have been decided in plaintiff's favor by the Municipal Court, in which she subsequently brought suit, and that judgment has been unanimously affirmed by the Appellate Division. The plaintiff was awarded $250 damages against the defendant's contention that she was not entitled to any recovery in excess of the sum paid for the ticket, and the correctness of the defendant's contention is the only question presented on this appeal.

The action is for a breach of the defendant's contract, and not for a tortious expulsion. It is so denominated in the complaint, and was necessarily so brought, as the Municipal Court has no jurisdiction over an action for an assault. It is contended for the defendant that, as the action was on contract, the plaintiff was not entitled to any damages for the indignity of her expulsion from the defendant's establishment. It may be admitted that as a general rule mental suffering resulting from a breach of contract is not a subject of compensation, but the rule is not universal. It is the settled law of this state that a passenger may recover damages for insulting and slanderous words uttered by the conductor of a railway car as a breach of the company's contract of carriage. Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503. The same rule obtains where the servant of an innkeeper offers insult to his guest. De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527,21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969. And it must be borne in mind that a recovery for indignity and wounded feelings is compensatory, and does not constitute exemplary damages. Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25.

[1] It is insisted, however, that there is a distinction between common carriers and innkeepers, who are obliged to serve all persons who seek accommodation from them, and the keepers of public places of amusement or resort, such as the bathhouse of the defendant, theaters, and the like. That the distinction exists is undeniable, and, in the absence of legislation, the keeper of such an establishment may discriminate and serve whom he pleases. Therefore, in such a case, a refusal would give no cause of action. So, also, it is the general rule of law that a ticket for admission to a place of public amusement is but a license and revocable. It was so said by this court in People ex rel. Burnham v. Flynn, 189 N. Y. 180, 82 N. E. 169. See, also, Burton v. Scherpf, 1 Allen (Mass.) 133, 79 Am. Dec. 717; McCrea v. Marsh, 12 Gray (Mass.) 211, 71 Am. Dec. 745;Horney v. Nixon, 213 Pa. 20, 61 Atl. 1088, 1 L. R. A. (N. S.) 1184, 110 Am. St. Rep. 520; Purcell v. Daly, 19 Abb. N. C. 301; McGowan v. Duff, 14 Daly, 315. But granting both propositions, that the defendant might have refused the plaintiff a bath ticket and access to his premises, and that even after selling her a ticket he might have revoked the license to use the premises for the purpose of bathing, which the ticket imported, neither proposition necessarily determines that the plaintiff was not entitled to recover damages for the indignity inflicted upon her by the revocation. We have seen that, in the case of a common carrier or innkeeper, a person aggrieved may recover such damages as for a breach of contract, while, on the other hand, on the breach of ordinary contracts, a party would not be so entitled, and the question is to which class of cases the case before us most closely approximates. In severalof the reported cases the keeping of a theater is spoken of as a strictly private undertaking, and it is said that the owner of a theater is under no obligation to give entertainments at all. The latter proposition is true, but the business of maintaining a theater cannot be said to be ‘strictly’ private. In People v. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389, the question was as to the constitutionality of the civil rights act (Penal Code 1888, § 383) of this state which made it a misdemeanor to deny equal enjoyment of any accommodation, facilities, and privileges of inns, common carriers, theaters, or other places of public resort or amusement regardless of race, creed, or color, and gave the party aggrieved the right to recover a penalty of from $50 to $500 for the offense. The statute was upheld on the ground that under the doctrine of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, theaters and places of public amusement (the case before the court was that of a skating...