Allen v. People's Amusement Co.
| Decision Date | 11 September 1917 |
| Court | Oregon Supreme Court |
| Parties | ALLEN v. PEOPLE'S AMUSEMENT CO. |
On Petition for Rehearing, October 3, 1917.
Department 1.
Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.
Action by Wm. D. Allen against the People's Amusement Company. From a judgment sustaining a demurrer to the complaint, and dismissing the action, plaintiff appeals. Affirmed.
This is an action wherein plaintiff seeks to recover damages by reason of the fact that after having purchased tickets of general admission to defendant's playhouse he and his wife, who were colored people, were not permitted to occupy seats on the ground floor, but were directed to seat themselves in the gallery. When they refused to do so, it is alleged that they were removed to the lobby of the theater by the use of force and violence. The complaint sets out two causes of action, pleaded separately, the first being based upon the alleged breach of the contract arising out of the purchase of the tickets; and the second is founded upon assault and battery. Defendant demurred to the complaint upon the ground that several causes of action are improperly united. The demurrer having been sustained, plaintiff declined to plead further, and a judgment was entered dismissing the action. Plaintiff appeals.
McCants Stewart, of Portland, for appellant. D. Solis Cohen, of Portland (Bernstein & Cohen, of Portland, on the brief), for respondent.
BENSON J. (after stating the facts as above).
Plaintiff's counsel in a very able and interesting argument discusses many questions which are not before us. If the demurrer was properly sustained, it is neither necessary nor proper for us to go further than to so declare. By section 68, L. O. L., a demurrer is made the method of attacking a misjoinder of causes of action. The complaint contains a demand for relief based upon a breach of contract, and another upon assault and battery, which is, of course, a tort. In Smith v Day, 39 Or. 537, 65 P. 1056, Mr. Justice Wolverton says:
"It is so well settled that an action on contract cannot be united with one arising ex delicto that it does not require a citation of authorities to support the proposition."
The demurrer was properly sustained, and the judgment is affirmed.
On Petition for Rehearing.
Plaintiff urges a rehearing in this case because the opinion...
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