Anderson v. Pantages Theater Co.

• Decision Date: 08 January 1921
• Docket Number: 16024.
• Citation: 194 P. 813,114 Wash. 24
• Court: Washington Supreme Court
• Parties: ANDERSON v. PANTAGES THEATER CO. [*]

194 P. 813

114 Wash. 24

ANDERSON v. PANTAGES THEATER CO. ^[*]

No. 16024.

Supreme Court of Washington

January 8, 1921

Department 1.

Appeal from Superior Court, King County; King Dykeman, Judge.

Action by Clarence R. Anderson against the Pantages Theater Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ryan & Desmond, of Seattle, for appellant.

Clarence R. Anderson and Robt. F. Sandall, both of Seattle, for respondent.

FULLERTON J.

The appellant, Pantages Theater Company, is a corporation organized under the laws of the state of Washington, and owns and conducts a theater in the city of Seattle. A fee is charged for the privilege of witnessing the performances conducted in the theater, varying in amount owing to the location of the seats selected. The respondent, Anderson, is a colored man, a lawyer by profession, engaged in the practice of law in the city named. On the day of July 7 1919, a friend of the respondent caused to be purchased three tickets of admission to box seats in the theater of the appellant for a performance to be given therein in the evening of that day. At the appropriate time the respondent and two other persons, also colored, presented themselves for admission to box seats in the theater, at the same time presenting the tickets as evidence of their right of admission. The attendant at the door refused them admission telling them that all of the seats such as were called for by their tickets were taken. The respondent, who seems to have acted as spokesman for the party, questioned the truth of the statement, whereupon another attendant was called, who repeated the statement. On further insistence on the part of the respondent he was told that he could not be admitted to that part of the theater in any event, but that he could return his tickets for the box seats and procure tickets for seats in the balcony of the theater. As to what subsequently followed the evidence is conflicting, but the court found and we think the weight of the evidence supports the finding, that the attendant became gruff and insulting in his language, saying to the respondent that he was not admitted because he was a colored man, and that 'none of his kind of people could sit in any box seat or on the ground floor of that theater, * * * and did rudely, using no undue force and doing the plaintiff no bodily injury, all without any provocation whatever, push, shove, jerk, and force plaintiff through a crowd of people who were standing in the lobby of the theater out upon the sidewalk in front of said theater.'

The court further found that the respondent conducted himself in a seemly and gentlemanly manner, and that he was refused admission to the seat called for by his ticket solely because he was colored, and not because no seats were then available; that it was the policy and practice of the management of the theater to refuse admission to box seats, seats in the loges, and seats on the ground floor of the theater to all colored people, and to all orientals, and to all persons whose dress or physical appearance might render them obnoxious to other patrons of the theater. There is no evidence, however, that there was anything in the respondent's dress or physical appearance that would bring him within this latter class. On the contrary, it seems to be conceded that he was 'immaculate, neat, and dapper' in his dress and personal appearance.

In this action the respondent sought damages for the breach of duty of the appellant to admit him to the theater; for the indignity and humiliation to which he was subjected; for injury to his standing in the community as a professional man; and for mental suffering and injury to his feelings caused by the appellant's act. The trial resulted in a judgment in respondent's favor in the sum of $300.

The first matter to be noticed is the claim of the appellant to an absolute right to exclude respondent from its place of business. Its contention is that the proprietor of a theater is a private individual, engaged in a strictly private business, which, though for the entertainment of the public, is always limited to those whom he may consent to admit to it; that there is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay the price of a ticket, for the theater proprietor has acquired no peculiar rights from the state, and is under no implied obligation to serve the public; that it makes no difference in this respect whether he has theretofore sold the person seeking admission an admission ticket or not, as a ticket is a mere license, revocable at the will of the proprietor, even after the ticket holder has entered the theater and has taken the seat therein that the ticket entitled him to take.

It is probable that the contentions of the appellant correctly reflect the rules governing in such cases as administered at common law, and if, as it further contends, we have no applicable statute on the matter, it was within its rights when it refused admission to its theater to the respondent, and subjected itself in so doing to no greater liability than the liability of refunding the purchase price of the ticket. But these questions do not require examination at length. Contrary to the contention of the appellant, we think the Legislature has enacted a statute applicable to the situation as here disclosed.

It has provided (Rem. Code, § 2686) that:

'Every person who shall deny to any other person because of race, creed or color, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement, shall be guilty of a misdemeanor.'

This statute, while penal in form only, is both penal and remedial in its nature and effect. In addition to providing for a criminal punishment of proprietors of such places for discriminating against the admission thereto of persons on account of race, creed, or color, it confers rights upon the individual--it confers upon all persons, regardless of their race, creed or color, the right to be admitted to the places enumerated on equal terms with all others.

The person wrongfully discriminated against also has a civil remedy against the person guilty of the wrongful discrimination. A contrary contention was made under a similar statute in Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718, 9 L. R. A. 589, 21 Am. St. Rep. 576. Answering the contention, the court said:

'But it is claimed by the defendant's counsel that this statute gives no right of action for civil damages; that it is a penal statute; and that the right of the plaintiff under it is confined to a criminal prosecution. The general rule, however, is that, where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the kind which the statute was intended to prevent. * * *'

Mr. Justice Brewer, in the case of In re Debs, Petitioner, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, uses this language:

'The law is full of instances in which the same act may give rise to a civil action and a criminal prosecution. An assault with intent to kill may be punished criminally, under an indictment therefor, or will support a civil action for damages, and the same is true of all other offenses which cause injury to person or property. In such cases the jurisdiction of the civil court is invoked, not to enforce the criminal law and punish the wrongdoer, but to compensate the injured party for the damages which he or his property has suffered, and it is no defense to the civil action that the same act by the defendant exposes him also to indictment and punishment in a court of criminal jurisdiction.'

It is true there is a difference between the act recited by the learned...