Browning v. Slenderella Systems of Seattle

Decision Date09 July 1959
Docket NumberNo. 34375,34375
Citation341 P.2d 859,54 Wn.2d 440
PartiesOla M. BROWNING and John P. Browning, her husband, Respondents, v. SLENDERELLA SYSTEMS OF SEATTLE, a corporation, Appellant.
CourtWashington Supreme Court

Bayley, Fite, Westberg & Madden, Seattle, for appellant.

James E. McIver, Seattle, for respondents.

Philip L. Burton, John Caughlan, Francis Hoague, Kenneth A. MacDonald, Leonard W. Schroeter, Solie M. Ringold, Robert W. Winsor, Seattle, amici curiae.

HILL, Judge.

This is a wrongful discrimination case.

Ola M. Browning, to whom we will refer throughout the opinion as though she were the only plaintiff, is colored and the wife of a dental surgeon in Seattle. On March 5, 1956, at about 10:25 a. m., she entered the Slenderella salon (operated by the defendant Slenderella Systems of Seattle), pursuant to an appointment made by telephone, for a courtesy demonstration of the Slenderella treatments. She gave her name at the reception desk, and was asked to be seated. She was not asked to sign the guest book, as others who came in were asked to do. She waited in the reception room until approximately 12:15 p. m., during which time she was assured on several occasions by the receptionist that she would be taken care of in a few minutes. In the meanwhile, however, the reception room would fill up with women and would empty again as they were served, and it became apparent to Mrs. Browning that everyone except herself was receiving service.

Near the end of that period, she had a conversation with the manager of the salon from whom she attempted to find out whether or not she could expect to be served. The answer was that 'We have never served anybody but Caucasians and I just know you won't be happy here.' When Mrs. Browning asked, 'Why did you give me an appointment?' the manager answered, 'Well, you know by phone we have no way of knowing you were colored.' The manager was otherwise courteous. Mrs. Browning testified: 'I asked her finally if she planned to serve me. She never said yes or no. She said she knew I wouldn't be happy there. Then I went home.' The foregoing statement is based on the plaintiff's testimony, and takes no account of the evidence offered by the defendant, excusatory of the admitted failure to serve the plaintiff during the two hours she was in the salon.

This action was brought by Mrs. Browning and her husband for damages for the 'embarrassment, humiliation, mental anguish and emotional shock' allegedly suffered by Mrs. Browning in consequence of this act of discrimination against her. The trial court found:

'That on March 5, 1956, the plaintiff, Ola M. Browning was discriminated against on account of her race or color.' (The defendant challenges this finding.)

'That the establishment known as the Slenderella System of Seattle, a corporation, and its business thereof, is within the meaning of the Public Accommodation Law, R.C.W. 9.91.010.' (No exception is taken to this finding. It seems to us to be a conclusion of law, but it obviously is a determination that must be made before a cause of action can be established.)

From these findings the trial court drew the conclusion of law that the plaintiff was entitled to a judgment of $750, together with costs. Judgment was entered for that amount, and the defendant appeals.

There are four issues in this case:

1. Was there discrimination against the plaintiff because of her race or color?

2. Was the discrimination within the purview of our public accommodation statute?

3. Is there a civil cause of action available to the person discriminated against in violation of that statute?

4. Do the findings of fact or the evidence support the judgment for damages in the sum of $750?

All of these must be answered in the affirmative for the judgment to be sustained. The first three present little difficulty, and will be discussed with relative brevity; the fourth causes us considerable concern.

1. Re: Discrimination. The testimony of the plaintiff, as we have summarized it above, is sufficient to establish an act of discrimination by the defendant against the plaintiff on account of her race or color. The plaintiff was not told in so many words that she would not be served, or that she should leave; nor was any physical violence used or threatened. The defendant's employees were always courteous; however, one need not be obvious or forthright to effect a discrimination. As the New York court of appeals said in Holland v. Edwards, 1954, 307 N.Y. 38, 45, 119 N.E.2d 581, 584, 44 A.L.R.2d 1130:

'One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive--for we deal with an area in which 'subtleties of conduct * * * play no small part.' Cf. National Labor Relations Bd. v. Express Pub. Co., 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930. * * *'

This case exemplifies the fact that discrimination may arise just as surely through 'subtleties of conduct' as through an openly expressed refusal to serve. The trial court's finding on this issue is amply supported by the plaintiff's testimony.

2. re: Status of Defendant's Establishment. The pertinent part of the applicable statute is RCW 9.91.010(2), providing,

'Every person who denies 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.'

(While this type of statute is directed against discrimination because of race, creed, or color, it will be referred to as the public accommodation statute to distinguish it from RCW, chapter 49.60, which is denominated by the legislature as the 'Law Against Discrimination,' and to which reference is hereafter made.)

It is conceded that the defendant's salon where the discrimination occurred is a 'place of public resort, accommodation, assemblage, or amusement,' within the purview of the quoted statute. The legislature, by chapter 87, Laws of 1953, re-enacted the 1909 public accommodation act, but added an additional subsection extending the meaning of various terms so as to remove the limitations which this court had placed on the act by its decision, in Goff v. Savage, 1922, 122 Wash. 194, 210 P. 374, holding that a soda fountain in a drug store was not a place of public accommodation; and its dictum in Finnesey v. Seattle Baseball Club, 1922, 122 Wash. 276, 210 P. 679, 30 A.L.R. 948, that a baseball park was not a place of public accommodation. Nor is any issue raised in this case with reference to the fact that the service sought by the plaintiff was a courtesy treatment, which was the distinction relied on by the Iowa supreme court in finding no actionable discrimination in Brown v. J. H. Bell Co., 1910, 146 Iowa 89, 123 N.W. 231, 124 N.W. 901, 27 L.R.A.,N.S., 407, Ann.Cas.1912B, 852, where the defendant was giving away samples of coffee at a food show and declined to serve the plaintiff.

3. Re: Cause of Action. A cause of action for damages can arise from a violation of our public accommodation act (RCW 9.91.010), notwithstanding the statute is criminal in form. Powell v. Utz, D.C. 1949, 87 F.Supp. 811; Randall v. Cowlitz Amusements, Inc., 1938, 194 Wash. 82, 76 P.2d 1017; Anderson v. Pantages Theatre Co., 1921, 114 Wash. 24, 194 P. 813.

There is considerable variation in the provisions relating to damages in the public accommodation statutes of the various states (see note 1 in addendum).

This court--along with those of Iowa (Humburd v. Crawford, 1905, 128 Iowa 743, 105 N.W. 330; see Amos v. Prom, Inc., D.C.1953, 115 F.Supp. 127, and D.C. 1954, 117 F.Supp. 615, for analysis of Iowa cases and law), Michigan (Bolden v. Grand Rapids Operating Corp., 1927, 239 Mich. 318, 214 N.W. 241, 53 A.L.R. 183 [The Michigan statute has since been changed to specifically give the injured party a cause of action.]), New Jersey (Raison v. Board of Education, 1927, 103 N.J.L. 547, 137 A. 847), and Pennsylvania (Everett v. Harron, 1955, 380 Pa. 123, 110 A.2d 383)--takes the position that the statute, while penal in form, is remedial in its nature and effect and gives to the person wrongfully discriminated against a civil remedy against the person guilty of wrongful discrimination. Anderson v. Pantages Theatre Co., supra.

It is recognized that racial discrimination is a wrong that must be remedied. However, a civil action for damages for such discrimination is rarely resorted to in this state. This is probably due to the preference of those discriminated against to avail themselves of the administrative procedures (provided by RCW, chapter 49.60) through which the civil rights of minority groups can be secured through negotiation, conciliation, and persuasion, as well as through decrees based on adversary hearings before the board against discrimination. See note, 32 Wash.L.Rev. 185. These procedures are supplemented by making certain types of discrimination a misdemeanor. RCW 9.91.010.

Neither the administrative procedures, nor the penal provisions preclude the bringing of a civil action for damages, as is done here, for the violation of a right protected by the penal statute.

4. Re: Damages. Damages may be had for mental or emotional distress, even in the absence of any physical injury, when caused by a wrongful act intentionally done. United States v. Hambleton, 9 Cir., 1950, 185 F.2d 564, 23 A.L.R.2d 568; Gadbury v. Bleitz, 1925, 133 Wash. 134, 233 P.299 44 A.L.R. 425; Nordgren v. Lawrence, 1913, 74 Wash. 305, 133 P. 436; Davis v. Tacoma Ry. & Power Co., 1904, 35 Wash. 203, 77 P. 209, 66 L.R.A. 802. An act of discrimination in violation of a statute must be classed as a wrongful act intentionally done.

It is, however, not every emotional distress that warrants a judgment...

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