Bailey v. Washington Theatre Co.
| Decision Date | 26 May 1942 |
| Docket Number | 16548. |
| Citation | 41 N.E.2d 819,112 Ind.App. 336 |
| Parties | BAILEY v. WASHINGTON THEATRE CO. et al. |
| Court | Indiana Appellate Court |
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.
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 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, sent a white man to buy six tickets for admission to the ground floor of the theatre in question. These were purchased before the close of the afternoon showing of a picture, for the evening show. About six o'clock in the evening of such date the appellant, her husband and four other colored persons, appeared at the lobby and started to enter at the ground floor entrance when they were stopped by the usher. The husband of appellant testified that the usher informed them that his instructions were not to seat colored people on the first floor. The manager then came and the evidence, at this point, is in conflict, the witnesses of appellant testifying that he told them that the tickets were for white people; that they were sold for white people, and that the ground floor was for white people; and that he refused to permit them to enter the ground floor or to purchase tickets for the ground floor. They further testified that the doors were open when they attempted to gain admission on tickets that had been bought by the white man in the afternoon for them, and that there were vacant seats then and later when they attempted to purchase tickets to the ground floor; but that the manager would not permit them to buy tickets for the ground floor or permit them to use the tickets that had been purchased by the white person who acted as agent of the husband of appellant.
The appellee Conners testified that he would not permit them to use the tickets because they didn't buy them and because he had sold them with the express understanding that they were to be used by the gentleman that bought them, and that he would not allow the doorman to honor them unless the gentleman that bought them came personally with his own party. He further testified that Dr. Bailey, the husband of appellant, asked for his money back and that he told him that he didn't have any money coming to him because he didn't buy the tickets. He further testified that during the same evening after appellant and the persons accompanying her were denied admission upon the tickets they then held, they all returned in a short time to the theatre and the appellant attempted to purchase a ticket to the ground floor and that then the following conversation took place: ...
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