Appeal from District Court, Polk County; J. A. Howe, Judge.
DEEMER, J.
Plaintiff alleged: That she is a negro, or colored person, a citizen of good repute, and a resident of Des Moines. That defendant is either a copartnership or corporation doing business under the name and style of the “J. H. Bell Company” and engaged in selling coffee in the city of Des Moines. That about November 23, 1907, defendant F. J. Lane was in charge of a certain booth or counter for the J. H. Bell Company at or in a certain place of amusement or entertainment in the city of Des Moines, known as the “Pure Food Show,” to which the public was invited and an admission fee charged. That at said booth or counter of the Bell Company defendant Lane was on said day engaged in serving hot coffee to those of the general public who were admitted to the said “show,” and that plaintiff, who was accompanied by her husband, secured a ticket and was admitted to the show and applied at defendants' booth or counter with certain white persons to be served with coffee. “That at the said time defendant F. J. Lane by himself and agents served all the Caucasians or white persons who applied along with this plaintiff; but in a very rude and ungentlemanly manner said defendant failed and refused to serve her or her said husband, stating at the time, ‘We are not serving colored people here,’ or words to that effect. That said refusal was made by defendant without any fault of the plaintiff, and without any reason applicable by law to all persons, and for the express reason on the part of defendants that plaintiff was a negro, or colored person.” Damages are asked on account of humiliation, discrimination, and chagrin in the sum of $1,000.
The answer to which plaintiff demurred read in this wise: “Further answering, defendant states the facts to be: That on the said 23d day of November, 1907, at the time and place set out in the plaintiff's petition, he was in charge of a certain booth of the Des Moines Pure Food Show leased by J. H. Bell Company from the Des Moines Retail Grocers' Association by written contract, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof. That the said pure food show was held at the place set out in plaintiff's petition, to wit, at Eighth and Locust streets, in Des Moines, Iowa, during a period of time which included the said 23d day of November, 1907, by the Des Moines Retail Grocers' Association, a corporation, and that the said contract or lease, Exhibit A, was executed by and between the said corporation and the said J. H. Bell Company. That the said pure food show was so held by the Des Moines Retail Grocers' Association for the purpose of affording an opportunity to manufacturers and vendors of food stuffs to exhibit and advertise their wares, for which purpose said corporation leased to said manufacturers and vendors, by written contracts in terms identical with Exhibit A, booths in the hall in which said show was conducted. That the said Des Moines Retail Grocers' Association invited the public to attend the said food show by advertisements in the daily press, and charged an admission fee thereto, which said fee admitted all persons who had paid the same to the hall in which the food show was held. That the said admission fees so charged and collected by the said Des Moines Retail Grocers' Association became and were the property of the said corporation, and that no lessee of the said corporation or exhibitor in the said food show, including J. H. Bell Company and this defendant, had any interest, share, or property in the same, or any part thereof. That the said J. H. Bell Company, a corporation organized and existing under and by virtue of the laws of Illinois, under the terms of the written contract, Exhibit A, occupied a booth in said food show for the purpose only of exhibiting and advertising certain brands of coffee of which said corporation was the vendor. That defendant F. J. Lane was in charge of said booth for the purpose only of exhibiting and advertising said coffees. That neither said corporation, J. H. Bell Company, or this defendant, exercised, or attempted to exercise, any control of or had any part or share in the management of the said pure food show, except to control the conduct of said leased booth. That the method of advertising the said coffee employed by J. H. Bell Company and this defendant at said booth at the time and place set out in said petition was to donate to persons who are admitted to the hall in which said food show was held, and from whom in their judgment they would secure business returns, samples of said coffee prepared in liquid form as for table use, which said method of advertising was termed ‘demonstrating’ the said coffees. That the liquid coffee so served as aforesaid was the property solely of the said corporation J. H. Bell Company, and that neither the said Des Moines Retail Grocers' Association nor the management of the pure food show had any interest or property therein, and neither controlled or attempted to control the said J. H. Bell Company or this defendant in the distribution or service thereof, and that neither said Des Moines Retail Grocers' Association or the management of the said pure food show exercised, or attempted to exercise, any control or direction of the method of advertising employed by the said J. H. Bell Company or this defendant, except as the same was limited by said contract Exhibit A. That on the said 23d day of November, 1907, plaintiff and her husband, S. Joe Brown, were admitted to the said hall in which the said pure food show was being held by tickets of admission which had been theretofore donated to them by a grocer of whom they were customers in Des Moines, Iowa; said tickets having been purchased by said grocer from the Des Moines Retail Grocers' Association. That thereupon, at the said time and place, plaintiff and her husband visited all of the booths in the said pure food show excepting that of J. H. Bell Company, and received free and gratuitous donations of samples of the various food stuffs being exhibited and advertised at said booths, all of which were then and there employing the same method of advertising the wares upon exhibit as heretofore set out, to wit, that of donating prepared samples of said wares to persons who had been admitted to the hall in which said pure food show was held, and from whom business results were anticipated. That said samples of said coffee were so donated in small cups free and without charge, and for the purpose of advertising said coffees. Then, after visiting all other booths, said plaintiff and her husband approached the said booth leased and occupied and used as hereinbefore set out by the said J. H. Bell Company, and of which this defendant was in charge, as heretofore stated. That when said plaintiff and her husband had arrived at the front of the said booth, said counter being then crowded with ladies who were receiving donations of samples of said coffee as hereinbefore stated, this defendant did then and there address the plaintiff and the husband of the said plaintiff as follows: ‘We are not serving the colored people at the booth. If you will take seats we will be glad to serve you.’ That then and thereupon said husband of the plaintiff answered, ‘We were not born in those states where we have to do that,’ to which this defendant then and there replied, ‘This is positive, move on.’ That then and thereupon this defendant informed the said husband of plaintiff as to his own name and the name of the corporation of whose booth he was in charge, to wit, J. H. Bell Company, and that then and thereupon said plaintiff and her husband left said booth and left said Pure Food Show.”
The space contract referred to in this answer provides, in substance: That for and in consideration of the sum of $40 the grocers' association leased space to the Bell Company in the building where the pure food show was to be held, subject to certain conditions, among which were that the space should not be sublet, that: “All orders taken must be cash orders. The profit from goods sold and delivered from the booth to revert to the grocer entitled to the same, or the association. No advertising matter or samples will be permitted to be thrown among the patrons or distributed at the main entrance or any other portion of the building except from the inside or three feet of the outside of each individual booth. All aisle space belongs to the association, and no exhibit or advertising will be allowed to extend beyond the space allotted to the exhibitor or allowed carried or displayed in aisles as shown in prospectus. The show building will be open for the placing of exhibits four days prior to the date of opening, after 8 a. m. The food show will be open from 1:30 to 5:30 and 7:30 to 10:30 p. m. daily except Sunday. On opening day the doors will not be open until 7:30 p. m., when all exhibits must be in readiness and all exhibits must be open and no goods removed until after 10:30 of the last day. All goods placed in this show will be at the risk of the owner.”
The demurrer was upon the ground that the facts pleaded did not constitute a defense. The demurrer was overruled, and we have to determine whether or not the facts so pleaded in defense, which must for the purposes of the case be taken as true, show a violation of our civil rights statute. That statute (Code, § 5008) reads as follows: “All persons within this state shall be entitled to the full and equal enjoyment of the accommodations,...
