Bailey v. Washington Theatre Co., No. 16548.

Docket NºNo. 16548.
Citation112 Ind.App. 336, 41 N.E.2d 819
Case DateMay 26, 1942
CourtCourt of Appeals of Indiana

112 Ind.App. 336
41 N.E.2d 819

BAILEY
v.
WASHINGTON THEATRE CO. et al.

No. 16548.

Appellate Court of Indiana, in Banc.

May 26, 1942.


Appeal from Superior Court, Grant County; Oren W. Dickey, Judge.

Action by Flossie K. Bailey against Washington Theatre Company and others, to recover penalty for the violation of the “Civil Rights Statute” of state. From a judgment for defendants, the plaintiff appeals.

Judgment reversed with directions.

[41 N.E.2d 819]

O. Warren Harvey, of Gary, Robert Lee Brokenburr, of Indianapolis, and Cecil A. McCoy, of Chicago, Ill., for appellant.

Condo & Caine, of Marion, for appellees.


BEDWELL, Judge.

The appellant, Flossie K. Bailey, filed an action in the court below against the appellees to recover the penalty provided for under the provisions of Section 2 of Chapter 47 of the Acts of 1885, § 10-902 Burns' R.S.1933, § 4764, Baldwin's 1934, for the violation of what is usually denominated the “Civil Rights Statute” of this state. There was a trial by jury which returned a verdict for appellees.

The appellant, on appeal, is relying upon alleged error of the trial court in overruling her motion for a new trial, in striking out paragraphs two and four of her complaint, and in overruling her motion to approve and sign her Bill of Exceptions No. 2.

The amended first paragraph of appellant's complaint, upon which the cause was tried, alleged, in substance, the following facts:

That on March 20, 1935, the appellee, Washington Theatre Company, owned and operated within the city of Marion, Grant County, Indiana, a theatre known as “Indiana Theatre” which was a place of amusement for the general public; that the appellee Conners was employed by such corporation as manager of such theatre; that the appellee Jackson was employed as

[41 N.E.2d 820]

an usher, and the appellee Barley as a ticket seller; that on such date the admission charged the general public for tickets to the first floor of such theatre was thirty-five cents (35¢) per person.

That on the 20th day of March, 1935, the appellant was a person within the jurisdiction of the State of Indiana, and was a citizen of the State of Indiana who resided therein, and as such was entitled to the full and equal enjoyments, accommodations, advantages, facilities, and privileges of all theatres situate in the State of Indiana, and subject only to the conditions and limitations established by law and applicable alike to all citizens. That on such date she accompanied her husband to such theatre and that her husband had purchased for her a ticket for the consideration of thirty-five cents (35¢); that she presented such ticket to the appellee Jackson, who was at that time on the door of the main entrance to the first floor of the theatre, and that Jackson refused her and her husband admission and refused them seats, and refused to honor the ticket which was purchased for said show of said performance and date. That she applied to appellee Conners for admission to said theatre and was by him likewise refused and was directed to the ticket office; that she called at the window for a ticket to the first floor and was refused same by the appellee Barley; that she again called for the appellee Conners and he refused her admission to said first floor of said theatre and tickets thereto.

The amended first paragraph of complaint further alleged that appellant at said time desired to witness and enjoy a picture then showing at the theatre; that she tendered the price of the ticket, or caused the same to be tendered; that she was sober, orderly, courteous, well behaved, well dressed, free from all contagious and infectious diseases, and was ready, willing and able to comply with all lawful and reasonable rules of the theatre, but that she was denied admission solely because of the fact that she was of African descent, commonly called a colored person, or Negro.

The amended first paragraph of complaint further alleged that while appellant was at the theatre white persons were coming and going without molestation and were sold tickets and admitted without questioning and without being stopped, and that the appellees were each conniving and conspiring to deprive the appellant of the equal privileges, accommodations, and enjoyments of the theatre solely because of her color and racial identity, to her damage in the sum of $100.

There was an answer of general denial to the amended first paragraph of complaint.

At the trial the evidence showed that the appellee, Rowena White Barley, was not employed as a ticket seller at the theatre on the date in question, but on such date another employee, who was not made a party, acted as ticket seller. The only other conflict in the evidence was as to whether appellant was denied admission and as to whether appellees refused to sell her a ticket to the ground floor of the theatre because she was a member of the colored race.

On the occasion in question the husband of appellant during the afternoon of May 20, 1935,...

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11 practice notes
  • State v. Richard R. Bays, 98-LW-0059
    • United States
    • United States Court of Appeals (Ohio)
    • 30 Gennaio 1998
    ...burden of proving ineffective assistance of counsel is on the defendant. State v. Jackson (1980), 64 Ohio St.2d 107, 111, 18 O.O.3d 348, 41 N.E.2d 819. In order to show prejudice arising from counsel's performance " * * * the defendant must prove that there exists a reasonable probability t......
  • Yeager & Sullivan, Inc. v. O'Neill, No. 3--873A100
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Marzo 1975
    ...'is of such a character that to believe it would involve an absurd or unreasonable conclusion.' Bailey v. Washington Theatre Co. (1942), 112 Ind.App. 336, at 343, 41 N.E.2d 819, at 821 (transfer denied); Isler v. Bland (1889), 117 Ind. 457, 20 N.E. 303; Norman v. Norman (1960), 131 Ind.App.......
  • State v. Richard R. Bays, 98-LW-0060
    • United States
    • United States Court of Appeals (Ohio)
    • 30 Gennaio 1998
    ...burden of proving ineffective assistance of counsel is on the defendant. State v. Jackson (1980), 64 Ohio St.2d 107, 111, 18 O.O.3d 348, 41 N.E.2d 819. In order to show prejudice arising from counsel's performance " * * * the defendant must prove that there exists a reasonable probability t......
  • Norman v. Norman, No. 19115
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Ottobre 1960
    ...was of such character that to believe it would involve an absurd or unreasonable conclusion. Bailey v. Washington Theatre Co., 1942, 112 Ind.App. 336, 41 N.E.2d At the time of trial appellant filed three separate and several motions to withdraw from the consideration of the jury issues pres......
  • Request a trial to view additional results
11 cases
  • State v. Richard R. Bays, 98-LW-0059
    • United States
    • United States Court of Appeals (Ohio)
    • 30 Gennaio 1998
    ...burden of proving ineffective assistance of counsel is on the defendant. State v. Jackson (1980), 64 Ohio St.2d 107, 111, 18 O.O.3d 348, 41 N.E.2d 819. In order to show prejudice arising from counsel's performance " * * * the defendant must prove that there exists a reasonable probability t......
  • Yeager & Sullivan, Inc. v. O'Neill, No. 3--873A100
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Marzo 1975
    ...'is of such a character that to believe it would involve an absurd or unreasonable conclusion.' Bailey v. Washington Theatre Co. (1942), 112 Ind.App. 336, at 343, 41 N.E.2d 819, at 821 (transfer denied); Isler v. Bland (1889), 117 Ind. 457, 20 N.E. 303; Norman v. Norman (1960), 131 Ind.App.......
  • State v. Richard R. Bays, 98-LW-0060
    • United States
    • United States Court of Appeals (Ohio)
    • 30 Gennaio 1998
    ...burden of proving ineffective assistance of counsel is on the defendant. State v. Jackson (1980), 64 Ohio St.2d 107, 111, 18 O.O.3d 348, 41 N.E.2d 819. In order to show prejudice arising from counsel's performance " * * * the defendant must prove that there exists a reasonable probability t......
  • Norman v. Norman, No. 19115
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Ottobre 1960
    ...was of such character that to believe it would involve an absurd or unreasonable conclusion. Bailey v. Washington Theatre Co., 1942, 112 Ind.App. 336, 41 N.E.2d At the time of trial appellant filed three separate and several motions to withdraw from the consideration of the jury issues pres......
  • Request a trial to view additional results

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